IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DANIEL B. STORM, :

:

Petitioner :

: CIVIL NO. 4:09-CV-1569

:

v. : (Judge McClure)

:

KENNETH CAMERON, et al., :

:

Respondents :

MEMORANDUM and ORDER

 January 21, 2010

Petitioner Daniel B. Storm (“Petitioner” or “Storm”), an inmate presently

confined at the Cresson State Correctional Institution (“SCI-Cresson”) in Cresson,

Pennsylvania, commenced this pro se action by filing a petition for writ of habeas

corpus (“petition”) pursuant to the provisions of 28 U.S.C. § 2254. Storm challenges

his 2006 Lebanon County conviction. For the reasons set forth below, the petition

will be dismissed without prejudice for failure to exhaust state court remedies.

I. BACKGROUND

On or about May 14 and 15, 2005, Storm provided alcohol to and engaged in 

various forms of sexual contact with K.C., a fifteen-year old girl. (See Respondent’s

Memorandum of Law, Rec. Doc. No. 16-2 at 1.) Storm performed oral sexual

intercourse on K.C. and requested that she do the same to him. (See id. at 2.)

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Ultimately, the parties ended up engaging in vaginal sexual intercourse. (See id.) 

Storm also took photographs of K.C. (See id.) The incident occurred at Storm’s

home. (See id. at 1.) 

On May 22, 2005, during an interview with Pennsylvania State Police Trooper

James Biever, Storm acknowledged that he knew K.C. and had met her at church

several years before. (See id. at 2.) He also admitted to engaging in oral sex with

K.C. (See id.) Although he initially denied it, eventually he also admitted to engaging

in vaginal sexual intercourse with K.C. (See id.) Storm also showed Pennsylvania

State Police Trooper O’Neill four (4) photographs that he had taken of K.C. during

their May 2005 encounter. (See id.) Trooper O’Neill observed that K.C. was in a

partially nude state in all of the photographs. (See id.)

On June 8, 2005, Storm was charged with one (1) count of Involuntary Deviate 

Sexual Intercourse, one (1) count of Statutory Sexual Assault, one (1) count of

Aggravated Indecent Assault, one (1) count of Sexual Abuse of Children, one (1)

count of Corruption of Minors, one (1) count of Indecent Assault, and one (1) count of

Selling or Furnishing Liquor or Malt or Brewed Beverages to Minors. (See id. at 1.)

Storm waived his preliminary hearing on September 19, 2005. (See id.) On

December 22, 2005, Storm entered a guilty plea before the Honorable John C.

Tylwalk. On April 26, 2006, Storm appeared before Judge Tylwalk for his hearing

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This Court accessed the Pennsylvania Superior Court electronic docket sheet at

1480 MDA 2009 and verified that Storm’s appeal from the dismissal of his PCRA

petition still is pending inasmuch as the Commonwealth’s brief is due to be filed on

February 18, 2010. See Pennsylvania’s Unified Judicial System Webportal, Appellate

Courts Docket Sheets, available at

http://ujsportal.pacourts.us/docketsheets/appellate.aspx. 

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and sentencing pursuant to Megan’s Law. See 42 Pa. Cons. Stat. Ann. § 9791 et seq. 

At that time, Storm was found to be a sexually violent predator and was sentenced to a

term of imprisonment of twenty (20) months to four (4) years in the state correctional

institution. (See id. at 2-3.) No direct appeal was filed. (See id. at 3.) On April 30,

2007, Storm filed petition under Pennsylvania’s Post Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq., in the Lebanon County Court of

Common Pleas. (See id.) For unknown reasons, the PCRA court did not issue a Rule

to Show Cause until almost one (1) year later on April 21, 2008. (See id. n. 5;

Criminal Docket Sheet, Rec. Doc. No. 16-16 at 11.) On the same date, counsel was

appointed to represent Storm. (See id. at 3.) At an evidentiary hearing on February

12, 2009, testimony was offered by Storm and the attorney who represented him at the

time of his guilty plea. (See id.) On July 22, 2009, Storm’s PCRA petition was

dismissed. (See id.) On August 21, 2009, Storm filed a notice of appeal to the

Pennsylvania Superior Court that still is pending.1

 (See id.)

Storm initially filed the instant petition raising due process, prosecutorial

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misconduct, and ineffective assistance of counsel claims in the United States District

Court for the Eastern District Court. (See Rec. Doc. No. 1.) Because he is

challenging a conviction in the Lebanon County Court of Common Pleas, which is

located in this District, his petition was transferred to this Court on August 14, 2009. 

(See Rec. Doc. Nos. 1-3.) In accordance with United States v. Miller, 197 F.3d 644

(3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), on September 3,

2009, this Court issued a formal notice to Storm that he either could have his petition

ruled on as filed, or withdraw his petition and file one all-inclusive § 2254 petition

within the one-year statutory period prescribed by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). (Rec. Doc. No. 5.) On September 14, 2009, Storm

filed his notice of election requesting that the court rule on the petition as filed. (Rec.

Doc. No. 7.) Prior to filing his notice of election, Storm also filed an application for

bail. (Rec. Doc. No. 6.) 

By Order dated October 15, 2009, Respondents were directed to file responses

to the petition and application for bail within twenty (20) days. (Rec. Doc. No. 8.) 

Following a request for a sixty (60) day extension of time, which was granted, on

December 31, 2009, responses to the petition (Rec. Doc. No. 16) and application for

bail (Rec. Doc. No. 15) were filed. Although Storm was given the opportunity to file

a reply, the deadline for filing a reply has passed, and no reply has been filed. 

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Exceptions to the exhaustion requirement are made when: (1) the state

corrective process is so deficient as to render any effort to obtain relief futile, 28

U.S.C. § 2254(b); (2) acts of state officials have, in effect, made state remedies

unavailable to the petitioner, Mayberry v. Petsock, 821 F.2d 179, 184 (3d Cir. 1987);

or (3) "inordinate delay" in state proceedings has rendered state remedies ineffective. 

Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v. Cunningham, 819

F.2d 52, 55 (3d Cir. 1986).

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Therefore, the petition is ripe for review.

II. DISCUSSION

 As a general rule, a state prisoner must exhaust available state court remedies 

before seeking habeas relief in federal court. 28 U.S.C. §§ 2254(b), (c); Rose v.

Lundy, 455 U.S. 509, 515-20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.

1993); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). “Unless it would

be patently futile to do so [state prisoners] must seek relief in state court before filing

a federal habeas petition . . . .” Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982).2

The exhaustion requirement “is not a mere formality. It serves the interests of comity

between the federal and state systems by allowing the state an initial opportunity to

determine and correct any violations of a prisoner's federal rights.” Gibson, 805 F.2d

at 138.

To satisfy the exhaustion requirement, a federal habeas petitioner must have

presented the facts and legal theory associated with each claim through “one complete

round of the State’s established appellate review process.” O’Sullivan v. Boerckel,

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Federal courts may deviate from the exhaustion requirement only in highly

exceptional circumstances, such as where a petitioner lacks any real opportunity to

obtain redress in the state court, or if the corrective process was so clearly deficient as

to render futile any effort to obtain relief. See Duckworth v. Serrano, 454 U.S. 1

(1981). Although Storm alleges within the first ground in the instant petition that he

was denied due process as a result of the delay that occurred between the filing of his 

PCRA petition and the issuance of a Rule to Show Cause, there is no basis to find that

this delay rendered state remedies ineffective. Despite the delay, Storm ultimately

obtained a hearing on his PCRA petition, and he has not alleged that any delay has

occurred in his appellate proceedings or suggested that the relief he requests from the

Pennsylvania Superior Court would be somehow unavailable to him even if it is

warranted. Consequently, he cannot obtain premature federal review of his claims. 

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526 U.S. 838, 844-45 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir.

2004). A petitioner is not deemed to have exhausted the remedies available to him if

he has a right under the state law to raise, by any available procedure, the question

presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350 (1989). 

Moreover, the petitioner bears the burden of demonstrating that he has satisfied the

exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (citing

Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997)). 

In the instant case, Storm’s claims have not been fully presented to the state

courts because his appeal from the dismissal of his PCRA petition still is pending. In

the interests of comity, this Court must allow the state proceedings to conclude before

entertaining Storm’s habeas petition. Accordingly, Storm’s petition will be dismissed

without prejudice as premature.3

 His application for bail will be denied as moot. 

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Consequently,

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus (Rec. Doc. No. 1) is DISMISSED 

without prejudice.

2. Petitioner’s application for bail (Rec. Doc. No. 6) is DENIED as moot.

3. The Clerk of Court is directed to CLOSE this case.

4. There is no basis for the issuance of a certificate of appealability. See 28 

U.S.C. § 2253(c)(3).

 s/ James F. McClure, Jr. 

 JAMES F. McCLURE, JR.

United States District Judge

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