NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

MICHAEL PAUL MCDANIEL, :

:

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, :

:

Respondent. :

 :

Civil Action No. 11-0267 (MLC)

O P I N I O N

COOPER, District Judge

Michael Paul McDaniel petitions for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, without prepaying his filing fee

and without submitting an in forma pauperis application. In no

ambiguous terms, McDaniel’s Petition indicates that his criminal

proceedings are still pending. [Dkt. entry no. 1, at 1.]

A state prisoner applying for a writ of habeas corpus in

federal court must first “exhaust[] the remedies available in the

courts of the State,” unless “there is an absence of available

State corrective process[] or . . . circumstances exist that

render such process ineffective”. 28 U.S.C. § 2254(b)(1)

(“AEDPA”); see Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert

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

Court precedent and AEDPA “mandate that prior to determining the

merits of [a] petition, [a court] must consider whether

[Petitioner] is required to present . . . unexhausted claims to

the [state’s] courts”).

Case 3:11-cv-00267-MLC Document 2 Filed 05/26/11 Page 1 of 4 PageID: 7
The exhaustion requirement allows state courts the first

opportunity to pass upon federal constitutional claims, in

furtherance of the policies of comity and federalism. See

Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 516-

18. Exhaustion also has the practical effect of permitting

development of a complete factual record in state court, to aid

the federal courts in their review. See Rose, 455 U.S. at 519. 

A petitioner exhausts state remedies by presenting federal

constitutional claims to each level of the state courts empowered

to hear those claims, either on direct appeal or in collateral

post-conviction proceedings. See, e.g., O’Sullivan v. Boerckel,

526 U.S. 838 (1999) (“requiring state prisoners [in order to

fully exhaust their claims] to file petitions for discretionary

review when that review is part of the ordinary appellate review

procedure in the State”); Lambert, 134 F.3d at 513 (collateral

attack in state court not required if petitioner’s claim has been

considered on direct appeal); 28 U.S.C. § 2254(c) (“applicant

shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if

he has the right under the law of the State to raise, by any

available procedure, the question presented”). Once a

petitioner’s federal claims have been fairly presented to the

state’s highest court, the exhaustion requirement is satisfied.

See Picard v. Connor, 404 U.S. 270, 275 (1971); Castille v.

Peoples, 489 U.S. 346, 350 (1989).

2

Case 3:11-cv-00267-MLC Document 2 Filed 05/26/11 Page 2 of 4 PageID: 8
The petitioner generally bears the burden to prove all facts

establishing exhaustion. See Toulson v. Beyer, 987 F.2d 984, 987

(3d Cir. 1993). Where any available procedure remains for the

applicant to raise the question presented in the courts of the

state, the applicant has not exhausted the available remedies. 

See 28 U.S.C. § 2254(c).

The Petition here states that McDaniel’s criminal proceedings

are still pending. Therefore, he could not have exhausted his

claims for the purposes of § 2254 review, and his Petition shall

be dismissed, without prejudice, for failure to meet the

exhaustion requirement.

Moreover, while the Court can re-qualify the Petition into

an application submitted pursuant to 28 U.S.C. § 2241, such

application would too be subject to dismissal as unexhausted.

Addressing the question whether a federal court should ever

grant a pre-trial writ of habeas corpus to a state prisoner, the

Court of Appeals for the Third Circuit has held:

(1) federal courts have “pre-trial” habeas corpus

jurisdiction;

(2) that jurisdiction without exhaustion should not be

exercised at the pre-trial stage unless extraordinary

circumstances are present . . .;

(3) where there are no extraordinary circumstances and

where petitioner seeks to litigate the merits of a

constitutional defense to a state criminal charge, the

district court should exercise its “pre-trial” habeas

jurisdiction only if petitioner makes a special showing

of the need for such adjudication and has exhausted

state remedies.

Moore v. DeYoung, 515 F.2d 437, 443 (3d Cir. 1975).

3

Case 3:11-cv-00267-MLC Document 2 Filed 05/26/11 Page 3 of 4 PageID: 9
McDaniel has alleged no extraordinary circumstances here.

Accordingly, habeas relief would not be warranted as to his

challenges even if the Petition were construed as a § 2241

application.

As jurisdiction was asserted under 28 U.S.C. § 2254, this

Court will determine whether a certificate of appealability

(“COA”) should issue. Pursuant to 28 U.S.C. § 2253(c), unless a

circuit justice or judge issues a COA, an appeal may not be taken

from a final order in a proceeding under 28 U.S.C. § 2254. A COA

may issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

“When the district court denies a habeas petition on procedural

grounds without reaching the prisoner’s underlying constitutional

claim, a COA should issue when the prisoner shows, at least, that

jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and

that jurists of reason would find it debatable whether the

district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Here, jurists of reason

would not find it debatable whether this Court is correct in its

ruling. Accordingly, no COA shall issue. 

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: May 26, 2011

4

Case 3:11-cv-00267-MLC Document 2 Filed 05/26/11 Page 4 of 4 PageID: 10