NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ERIC E. CRISS, :

Civil Action No. 11-1215 (JAP)

Petitioner, :

v. : OPINION

STATE OF NEW JERSEY, :

Respondent. :

APPEARANCES:

Petitioner pro se

Eric E. Criss

76921

40 Grove Street

P.O. Box 3000

Somerville, NJ 08876

PISANO, District Judge

This matter is before the Court on Petitioner Eric E.

Criss’s Petition for habeas corpus relief under 28 U.S.C. § 2254

and an Application to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a). Based upon Petitioner’s affidavit of

indigency, the Court will grant the Application to proceed in

forma pauperis. For reasons discussed below, the Petition for

habeas corpus relief must be dismissed without prejudice for

failure to exhaust state court remedies.

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I. BACKGROUND

According to the allegations contained in the Petition,

Petitioner is currently incarcerated following a sentence which

was entered on February 17, 2011.

On or about March 4, 2011, only approximately two weeks

subsequent to his sentencing date, Petitioner submitted to this

Court a Petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. He asserts the grounds for relief regarding pre-trial

bail issues, violation of right to a speedy trial, and unlawful

arrest. 

In his Petition, Petitioner states: “I was found guilty by a

jury on 12/08/2010 and my attorney has not filed my appeal as of

todays [sic] date, but I do plan on appealing my conviction and

my sentence if relief is not granted and I was sentenced on

January 17, 2011 to 20 yrs.”

Petitioner has not yet attempted to exhaust his state court

remedies before filing the instant Petition. 

II. ANALYSIS

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

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

also Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v.

Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532

U.S. 919 (2001) (finding that “Supreme Court precedent and the

AEDPA mandate that prior to determining the merits of [a]

petition, [a court] must consider whether [petitioner] is

required to present [his or her] unexhausted claims to the

[state’s] courts”).

The exhaustion requirement is intended to allow state courts

the first opportunity to pass upon federal constitutional claims,

in furtherance of the policies of comity and federalism. 

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. Rose, 455 U.S. at 519.

A petitioner must exhaust state remedies by presenting his

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.

 Exhaustion of state remedies has been required for more 1

than a century, since the Supreme Court’s decision in Ex parte

Royall, 117 U.S. 241 (1886). The exhaustion doctrine was first

codified at 28 U.S.C. § 2254 in 1948, see Rose v. Lundy, 455 U.S.

509, 516-18 (1982), and more recently was the subject of

significant revisions in the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Pub. L. 104-132, 110 Stat. 1217 (April 24,

1996).

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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”); Ross v. Petsock, 868

F.2d 639 (3d Cir. 1989); 28 U.S.C. § 2254(c) (“An 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. 

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

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

The petitioner generally bears the burden to prove all facts

establishing exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). This means that the claims heard by the state courts

must be the “substantial equivalent” of the claims asserted in

the federal habeas petition. Picard, 404 U.S. at 275. Reliance

on the same constitutional provision is not sufficient; the legal

theory and factual predicate must also be the same. Id. at 277.

Further, Petitioner has neither asserted nor demonstrated an

absence of available state process. Before exhaustion will be

excused on this basis, “state law must clearly foreclose state

court review of unexhausted claims.” Toulson, 987 F.2d at 987. 

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There does not appear to be any reason why Petitioner might be

prohibited from exhausting his claims in state court. 

In the present case, the Petition shows, on its face, that

Petitioner has failed to exhaust his state court remedies with

respect to the challenged state court conviction and sentence. 

In fact, Petitioner has only recently been sentenced and has not

made any attempt to appeal the conviction and sentence in state

court. By his own admission, Petitioner did not attempt to

exhaust his state court remedies before filing the instant

Petition. Accordingly, the Petition must be dismissed for

failure to exhaust. 

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

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

A certificate of appealability 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). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 123 S.Ct. 1029, 1034 (Feb. 25, 2003). “When the

district court denies a habeas petition on procedural grounds

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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). 

IV. CONCLUSION

For the foregoing reasons, this Court finds that Petitioner

has failed to exhaust his available state court remedies or to

allege facts sufficient to excuse failure to exhaust. The Court

therefore will dismiss without prejudice his petition for a writ

of habeas corpus under 28 U.S.C. § 2254.

No certificate of appealability will issue, insofar as

Petitioner has failed to make a substantial showing of the denial

of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). 

/s/ JOEL A. PISANO 

Joel A. Pisano

United States District Judge

DATED: August 9, 2011

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