UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID D. BROWN, :

: Civil Action No. 11-1288 (NLH)

Petitioner, :

:

v. : OPINION

:

WARDEN SEAN THOMAS, :

:

Respondent. :

APPEARANCES:

DAVID D. BROWN, Petitioner pro se

# 191303

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, New Jersey 08330

HILLMAN, District Judge

This matter is before the court pursuant to a petition for a

writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner

David D. Brown (“Brown”), challenging his recent New Jersey state

court conviction and sentence. For the reasons stated below, 1

the petition will be dismissed without prejudice at this time for

failure to exhaust state court remedies.

 This action was administratively terminated on March 22, 1

2011 (Docket entry no. 2) because Petitioner failed to pay the

requisite $5.00 filing fee or submit a complete application to

proceed in forma pauperis (“IFP”). Petitioner submitted a

complete IFP application on June 8, 2011, and requested that his

case be re-opened. It appearing that Petitioner qualifies for

IFP status, the Court will direct the Clerk of the Court to reopen this matter and file the petition accordingly. 

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I. BACKGROUND

According to the allegations contained in the petition,

Brown is challenging his recent confinement as a result of

violating the conditions of his probation. Brown states that he

was sentenced to a five-year suspended sentence in the Superior

Court of New Jersey, Atlantic County, after his plea of guilty to

criminal mischief. He does not state when the sentence was

imposed. Brown was supposed to be monitored by the Atlantic

County Probation Department, and signed a probation “contract” on

or about December 17, 2010. He states that he was taken into

custody for violating the conditions of his probation on July 27,

2010, before he signed the probation contract. Therefore, he

challenges his detention and seeks his release accordingly. He

admits that he has not sought to exhaust his state court remedies

with respect to his claim of wrongful confinement. (Petition at

¶ 12).2

 The Court notes that, on or about July 5, 2011, Brown 2

filed a nearly identical habeas petition, Brown v. Attorney

General of New Jersey, Civil No. 11-3833 (JBS), without reference

to his earlier-filed matter. Brown v. Attorney General of New

Jersey, Civil No. 11-3833 (JBS) was dismissed for non-exhaustion

of state court remedies by Opinion and Order entered in that

matter on July 14, 2011.

2

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II. ANALYSIS

A. Pro Se Pleading

Brown brings his habeas petition as a pro se litigant. A

pro se pleading is held to less stringent standards than more

formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S.

97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). A

pro se habeas petition and any supporting submissions must be

construed liberally and with a measure of tolerance. See Royce

v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney

General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.

Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970).

B. Exhaustion 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

such process ineffective ... .” 28 U.S.C. § 2254(b)(1). See 3

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

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

 Exhaustion of state remedies has been required for more 3

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 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).

3

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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.

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

4

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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.

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. 28 U.S.C. §

2254(c).

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

Brown has failed to exhaust his state court remedies with respect

to the claim asserted in this habeas petition. (Petition at ¶

12). As a matter of comity then, it is best left to the New

Jersey courts to determine Brown’s constitutional claims and

challenges to his sentence and present custody, which clearly

have not been raised, let alone fully exhausted, on state court

review. Therefore, based on the allegations represented by Brown

5

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in his petition, the Court is constrained to dismiss the entire

petition, without prejudice, for failure to exhaust as required

under 28 U.S.C. § 2254. See Rose, 455 U.S. at 510.

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, 1537 U.S. 322 (2003). “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).

6

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Here, jurists of reason would not find the court’s

procedural disposition of this case debatable. Accordingly, no

certificate of appealability will issue.

IV. CONCLUSION

For the foregoing reasons, this Court finds that Brown 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 the § 2254 habeas

petition for failure to exhaust available state court remedies. 

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/ Noel L. Hillman 

NOEL L. HILLMAN 

United States District Judge

DATED: November 7, 2011

At Camden, New Jersey

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