IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GENE M. SPENNATI, :

:

Petitioner :

:

v. : CIVIL NO. 4:CV-13-1919

:

COMMONWEALTH OF PA., : (Judge Brann)

:

Respondent :

MEMORANDUM

April 17, 2015

Gene M. Spennati, an inmate presently confined at the State Correctional

Institution, Somerset, Pennsylvania, (SCI-Somerset), filed this pro se habeas

corpus petition pursuant to 28 U.S.C. § 2254. By Order dated September 20,

2013, Petitioner’s motions to supplement (Docs. 5 & 6) were granted and his

incorporated supplements were accepted. Service of the Petition and supplements

was previously ordered

Petitioner states that he entered a guilty plea to multiple drug related

charges in the Court of Common Pleas of Huntingdon County, Pennsylvania on

March 8, 2012. As a result of his plea, Spennati was sentenced to a 3 1⁄2 to 7 year

term of imprisonment. Petitioner acknowledges that he did not file a direct appeal

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or otherwise challenge his conviction and sentence.

Petitioner initially asserts that he should be awarded federal habeas corpus

relief on the grounds that he is incarcerated “without a written judgment of

sentence order.” 1

 Doc. 1, Ground One. There is also a vague argument set forth

in Petitioner’s supplements that the courts of the Commonwealth of Pennsylvania

lack jurisdiction to enact a criminal code or criminal statutes. See Doc. 6.

Respondent argues that Petitioner is not entitled to federal habeas corpus

relief because Spennati failed to exhaust his state court remedies and his claims

are meritless.

Discussion

Timeliness

Section 2244(d) of Title 28 of the United States Code provides, in relevant

part, as follows:

(d)(1) A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court. The

1 Based upon a review of the record, Spennati’s subsequently submitted

supplements included a copy of an March 8, 2012 Order by the Judge Stewart Kurtz

of the Court of Common Pleas of Huntingdon County which accepted Petitioner’s

guilty plea (Doc. 5, p. 2) and a copy of a sentencing Order issued that same day by

Judge Kurtz (Id. at p. 3). By providing this Court with those documents, it is unclear

as to whether Petitioner still wishes to pursue his initial argument.

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limitation period shall run from the latest of - 

 (A) the date on which the judgment became final by the conclusion

of direct review or the expiration for seeking such review; ...

 (2) The time during which a properly filed application

for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending

shall not be counted toward any period of limitation

under this subsection.

 See generally, Jones v. Morton, 195 F.3d. 153, 157 (3d Cir. 1999).

Respondent initially notes that since “the trial court was willing to entertain

Spennati’s post-plea habeas petition as a PCRA petition and that no Pennsylvania

Court has held that the petition was not properly filed, it seems that the period

from June 15, 2012 until April 24, 2013 is excludable from the calculation of the

AEDPA limitation period, which does appear to render the instant habeas petition

timely.”2

 Doc. 14, p. 4. 

According to Spennati, his pending Petition was given to prison officials on

July 1, 2013 for the purpose of being mailed to this Court. See Doc. 1, p. 14. 

Under the standards announced in Houston v. Lack, 487 U.S. 266, 276 (1988)(a

prisoner’s action is deemed filed at the time it is given to prison officials for

2

 Pennsylvania’s Post Conviction Relief Act (PCRA). The PCRA permits

motions for post-conviction collateral relief for allegations of error, including

ineffective assistance of counsel, unlawfully induced guilty pleas, improper

obstruction of rights to appeal by Commonwealth officials, and violation of

constitutional provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir. 1991). 

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mailing to the Court), the Petition will be deemed filed as of July 1, 2013. It is

also undisputed that Petitioner’s plea was entered and his sentence imposed on

March 8, 2012 and that no direct appeal was filed. 

The running of limitations period is suspended for the period when

properly-filed state post-conviction proceedings are pending in any state court. In

light of Respondent’s acknowledgment that a post sentence motion by Spennati

which was construed as a properly filed PCRA action was pending from June 15,

2012 to April 24, 2013, this Court agrees that this matter is timely.

Exhaustion

Respondent contends that the Petition is subject to dismissal because

“Spennati has never presented any of the claims raised in the instant petition to

any Pennsylvania Court.” Doc. 14, p. 6. The response explains that no direct

appeal was filed; a post sentence motion by Spennati which was construed as

seeking PCRA relief was voluntarily discontinued by Petitioner’s court appointed

counsel prior to any merits consideration; and no claim regarding the legality of

Petitioner’s March 8, 2012 plea and sentence has ever been presented to any

Pennsylvania state appellate court. 

The Respondent adds that Petitioner’s pending claims have been

procedurally defaulted in Pennsylvania state court and since he has not established

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cause or prejudice to excuse his procedural default, this Court cannot entertain his

pending action. See id., p. 7. The Petition generally indicates that exhaustion is

not required and Spennati’s reply does not address the non-exhaustion argument.

Title 28 United States Code Section 2254(b)(1) provides that an application

for a writ of habeas corpus filed on behalf of a person in custody pursuant to the

judgment of a State court cannot be granted unless the applicant has exhausted the

remedies available in the courts of the State; or there is an absence of available

state corrective process; or there are existing circumstances which render the state

process ineffective.3

 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. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004). 

The United States Court of Appeals for the Third Circuit has stated that

“[U]nder 28 U.S.C. § 2254(c), such a petitioner ‘shall not be deemed to have

exhausted the remedies available in the courts of the State ... if he has the right

under the law of the State to raise, by any available procedure, the question

presented.” Wenger v. Frank, 266 F.3d 218, 223-24 (3d Cir. 2001). 

3 However, a Section 2254 petition may be denied on the merits

notwithstanding the failure of a petitioner to exhaust available state court remedies. 

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“A state prisoner is generally barred from obtaining federal habeas relief

unless the prisoner has properly presented his or her claims through one ‘complete

round of the State’s established appellate review process.’” Woodford v. Ngo, 548 

U.S. 81, 92 (2006) (internal citations omitted); O'Sullivan v. Boerckel, 526 U.S.

838, 844-45 (1999)(while exhaustion does not require state prisoners to invoke

extraordinary remedies, the state courts must be afforded one full opportunity to

resolve any constitutional issues via completion of the State's established appellate

review process). The United States Supreme Court in O’Sullivan explained, that

state prisoners must “file petitions for discretionary review when that review is

part of the ordinary appellate review procedure in the State.” Id. at 847. The

United States Supreme Court added that, in determining whether a state prisoner

has preserved an issue for presentation in a federal habeas petition, it must be

determined not only whether a prisoner has exhausted his state remedies, but also

whether he has properly exhausted those remedies, i.e., whether he has fairly

presented his claims to the state courts. See id. at 848.

Fair presentation requires that the “substantial equivalent” of both the legal

theory and the facts supporting the federal claim are submitted to the state courts,

and the same method of legal analysis applied in the federal courts must be

available to the state courts. Evans v. Court of Common Pleas, 959 F. 2d 1227,

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1230 (3d Cir. 1992); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). 

Moreover, to satisfy exhaustion, the state court must be put on notice that a federal

claim is being asserted. Keller v. Larkins, 251 F.3d 408, 413 (3d Cir. 2001). The

exhaustion requirement is satisfied if the petitioner’s claims are presented through

a collateral proceeding, such as a petition under the PCRA, and it is not necessary

to present federal claims to state courts both on direct appeal and in a PCRA

proceeding. Evans, 959 F.2d at 1230.

When a claim has not been fairly presented to the state courts but further

state-court review is clearly foreclosed under state law, exhaustion is excused on

the ground of futility. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);

Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir. 1993). Such a claim is

procedurally defaulted, not unexhausted. A federal habeas court cannot review a

procedurally defaulted claim, “if the decision of [the state] court rests on a state

law ground that is independent of the federal question and adequate to support the

judgment.” Beard v. Kindle, 558 U.S. 53, 55 (2009). Procedural default can only

be excused if a petitioner can show “cause” and “prejudice” or that a “fundamental

miscarriage of justice” would result. Edwards v. Carpenter, 529 U.S. 446, 451

(2000).

As previously discussed, Petitioner’s pending action claims entitlement to

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federal habeas corpus relief on the grounds that his incarceration is illegal due to

the absence of a proper written judgment of sentence and because the

Commonwealth of Pennsylvania lacks jurisdiction to enact a criminal code or 

criminal statutes. Since it is undisputed that Petitioner did not file a direct appeal

and withdrew his PCRA action prior to any consideration by any state court on the

merits, his pending claims are clearly unexhausted.4

When a claim has not been fairly presented to the state courts but further

state-court review is clearly foreclosed under state law, exhaustion is excused on

the ground of futility. See Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000);

Toulson v. Beyer, 987 F.2d 984, 987-88 (3d Cir.1993). Such a claim is

procedurally defaulted, not unexhausted, and may be entertained in a federal

habeas petition if there is a basis for excusing the procedural default. Procedural

default can only be excused if a petitioner can show “cause” and “prejudice” or

that a “fundamental miscarriage of justice” would result. Edwards v. Carpenter,

529 U.S. 446, 451 (2000). 

 “Cause” for a procedural default is demonstrated by showing that some

objective external factor impeded a petitioner’s efforts to comply with the state

4 Petitioner’s vague wholly unsupported contention that exhaustion is not

required is not compelling.

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procedural rule. See Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner

established prejudice only by showing that the errors worked to his actual and

substantial disadvantage infecting his entire proceeding with error of constitutional

dimensions. See United States v. Frady, 456 U.S. 152, 170 (1982). In order to

set forth a viable fundamental miscarriage of justice argument, a petitioner must

present new reliable evidence which supports a claim of actual innocence. See

Schlup v. Delo, 513 U.S. 298, 317 (1995).

In light of the passage of time since Petitioner’s March 8, 2012 guilty plea

and sentence and the failure of Petitioner’s reply to address this issue, this Court

agrees that state court review is foreclosed under Pennsylvania state procedural

law. Based upon a thorough review of the record, Spennati has failed to establish

cause for the procedural default of his pending habeas claims and resulting

prejudice. Petitioner has also not shown that failure to entertain his procedurally

defaulted claims will result in a fundamental miscarriage of justice as

contemplated under Schlup. 

Pursuant to the above discussion, Petitioner has failed to satisfy his burden

of showing cause and prejudice for his procedural default. Consequently,

Spennati’s habeas corpus arguments cannot be entertained by this Court. An

appropriate Order will enter.

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BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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