IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ZOUHEIR S. FAKHOURI, :

:

Petitioner :

: CIVIL NO. 4:09-CV-1601

:

v. : (Judge McClure)

:

MICHAEL W. HARLOW, et al., :

:

Respondents :

MEMORANDUM

 March 3, 2010

Petitioner Zouheir S. Fakhouri, (“Petitioner” or “Fakhouri”), an inmate

presently confined at the Mercer State Correctional Institution (“SCI-Mercer”) in

Mercer, Pennsylvania, initiated the above action by filing a pro se petition for writ of

habeas corpus under the provisions of 28 U.S.C. § 2254. He challenges his 2008

conviction in the Pike County Court of Common Pleas. For the reasons set forth

below, the petition will be dismissed without prejudice for failure to exhaust state

court remedies.

I. BACKGROUND

On July 23, 2008, following a jury trial in the Pike County Court of 

Common Pleas, Fakhouri was found guilty of two counts each of possession of a

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controlled substance, possession of a controlled substance with intent to deliver,

delivery of a controlled substance, and criminal use of a communication facility. 

(Rec. Doc. No. 7-19 at 3, 9/3/09 Pennsylvania Superior Court Memorandum Opinion.) 

On September 25, 2008, Fakhouri was sentenced to a term of imprisonment of two

and one-half (2 1⁄2) to five (5) years. (Id.) 

 On October 1, 2008, he filed timely post-sentence motions, which subsequently 

were denied by the trial court. (Id.) He then filed a timely appeal from his judgment

of sentence to the Pennsylvania Superior Court. On appeal, he raised issues

concerning an alleged pre-arrest delay and challenging the sufficiency of the evidence

to sustain his conviction. (Id. at 3-4.) In a Memorandum Opinion dated September 3,

2009, the Pennsylvania Superior Court affirmed Fakhouri’s judgment of sentence. 

(Id. at 9.) Specifically, the Superior Court determined that Fakhouri had waived his

issue concerning an alleged pre-arrest delay by not presenting it in his Statement of

Matters Complained of on Appeal filed pursuant to Pa. R. App. P. 1925(b). (Id. at 5.) 

The Court also determined that there was ample evidence to sustain Fakhouri’s

convictions. (Id. at 8.) 

On September 18, 2009, Fakhouri filed a pro se Application for

Reconsideration with the Pennsylvania Superior Court. (Rec. Doc. No. 7 ¶ 7,

Response to Petition.) By Order dated October 1, 2009, the Application was denied

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because it was filed beyond the fourteen (14) day period allowed for such motions. 

(Id. ¶ 8.) 

On August 20, 2009, before the Pennsylvania Superior Court disposed of his

appeal from his judgment of sentence, Fakhouri filed the instant petition. (See Rec.

Doc. No. 1.) Fakhouri asserts claims of ineffective assistance of counsel, trial court

errors, and prosecutorial misconduct. 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 24, 2009, this Court issued a formal notice to Fakhouri 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. 3.) 

On November 4, 2009, Fakhouri filed a document entitled “Reconsideration

Motion.” (Rec. Doc. No. 4.) Despite its title, the “Motion” did not request

reconsideration of this Court’s September 24, 2009 Order, but rather contained

argument in support of Fakhouri’s position that his claims should be deemed

procedurally defaulted. Attached to the “Motion” was Fakhouri’s Notice of Election

indicating that he chose to have the petition ruled on as filed. (See Rec. Doc. No. 4-2

at 17-18.) In an Order dated December 18, 2009, this Court construed the document

as a memorandum of law in support of the petition, and, based on the Notice of

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Fakhouri also filed correspondence with this Court in which he claims that

Respondents did not provide him with copies of the exhibits filed with the response to

the petition. (Rec. Doc. No. 9.) Because we determined after reviewing the response

that we would not be reaching the merits of the petition, we did not direct

Respondents to provide copies of the exhibits to Petitioner.

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Election, directed service of the petition on the Warden of SCI-Mercer, the Attorney

General of the Commonwealth of Pennsylvania, and the District Attorney of Pike

County. (Rec. Doc. No. 5.)

On January 8, 2010, Respondents filed a response to the petition along with

supporting documents. (Rec. Doc. No. 7.) Fakhouri filed a reply on January 25,

2010.1

 (Rec. Doc. No. 8.) Accordingly, the petition is ripe for review.

II. DISCUSSION

 A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper 

mechanism for a prisoner to challenge the “fact or duration” of his confinement.

Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). “[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is

restricted to claims based “on the ground that [petitioner] is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle,

502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v.

Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

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 Before a federal court can review the merits of a state prisoner's habeas 

petition, it must determine whether the petitioner has met the requirements of exhaustion.

Relief cannot be granted unless all available state remedies have been exhausted, or there

is an absence of available state corrective process, or circumstances exist that render such

process ineffective to protect the rights of the applicant. See 28 U.S.C. 

§ 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order

to ensure that state courts have the initial opportunity to review federal constitutional

challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

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,

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)). 

 Fakhouri has not satisfied the exhaustion requirement. He argues that state

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“[A] petition for allowance of appeal shall be filed with the Prothonotary of the

Supreme Court within 30 days after the entry of the order of the Superior Court or the

(continued...)

6

procedural rules bar him from seeking relief in state courts and that his claims

therefore should be considered by this Court. (See Rec. Doc. No. 1 at 19; Rec. Doc.

No. 4.) However, Fakhouri still has state remedies available to him. Although he

filed a direct appeal from his judgment of sentence raising claims of an alleged prearrest delay and sufficiency of the evidence to sustain his conviction, and the

Pennsylvania Superior Court affirmed the judgment on September 3, 2009, he has not

yet filed a petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.

Cons. Stat. Ann. §§ 9541 et seq. (See Rec. Doc. No. 7 ¶ 10.) 

Fakhouri still could raise the claims he raises in the instant petition of ineffective

assistance of counsel, trial court errors, and prosecutorial misconduct in a PCRA

petition. In Pennsylvania, any PCRA petition, including a second or subsequent

petition, must be filed within one (1) year from the date a judgment of sentence

becomes final. 42 Pa. Cons. Stat. § 9545(b). A judgment becomes final either upon

the conclusion of direct review or upon the expiration of the time for seeking direct

review. 42 Pa. Cons. Stat. § 9545(b)(3). In this case, Fakhouri’s judgment of

sentence became final on October 5, 2009 when the time period for filing a Petition

for Allowance of Appeal with the Pennsylvania Supreme Court expired.2

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(...continued)

Commonwealth Court sought to be reviewed.” Pa. R. App. P. 1113(a).

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Consequently, he still has an opportunity until October 5, 2010 to present the grounds

he raises in the instant petition to the state courts through a properly filed PCRA

petition. 

However, to avoid the risk that a second § 2254 petition will be barred by the

expiration of the one-year statute of limitations while Fakhouri is exhausting state

court remedies, we must decide whether to stay the petition rather than dismiss it. See

Crews v. Horn, 360 F.3d 146 (3d Cir. 2004). Under 28 U.S.C. § 2244(d)(1), a state

defendant has one year to file a § 2254 petition. For our purposes, that period starts to

run from the date the conviction becomes final, defined in § 2244(d)(1)(A) as “the

date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” The limitations period also is tolled

for 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." 28

U.S.C. § 2244(d)(2). 

In the instant case, we can dismiss the instant petition rather than stay it

because, even on the strictest calculation of the limitations period, Fakhouri still has

time to return to federal court after exhausting state court remedies, as his judgment of

sentence just became final on October 5, 2009. Therefore, the petition will be

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dismissed without prejudice to Fakhouri’s right to re-file upon the conclusion of state

court proceedings. 

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ZOUHEIR S. FAKHOURI, :

Petitioner :

: CIVIL NO. 4:09-CV-1601

:

v. : (Judge McClure)

MICHAEL W. HARLOW, et al., :

Respondents :

O R D E R

 March 3, 2010

IT IS HEREBY ORDERED THAT: 

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

without prejudice. 

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

U.S.C. § 2253(c)(3). 

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

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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