HERNANDEZ

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

PITTSBURGH DIVISION

JUAN HERNANDEZ, )

)

) Civil Action No. 2:23-cv-0747

Petitioner, )

) Senior United States District Judge

vs. ) Nora Barry Fischer

)

MR. ZAKAN, Superintendent, and ) United States Magistrate Judge

)

DISTRICT ATTORNEY ALLEGHENY Christopher B. Brown

)

COUNTY, )

Respondents. ) )

)

REPORT AND RECOMMENDATION

Christopher B. Brown, United States Magistrate Judge

I. Recommendation

Juan Hernandez, a state prisoner incarcerated at SCI-Albion,1 filed a pro se

petition for writ of habeas corpus under 28 U.S.C. § 2254 on May 5, 2023. ECF No.

1. He is challenging the judgment of conviction imposed on him on December 5,

2022, by the Court of Common Pleas of Allegheny County at Docket No. CP-02-CR-

0005683-2021.2

1 When Hernandez initiated this case he was incarcerated at SCI Greene. ECF No. 1. The

DOC Inmate Locator reflects Hernandez has been transferred to SCI Albion. See

https://inmatelocator.cor.pa.gov/#/Result. On February 24, 2026, Petitioner was instructed to update

his address, ECF No. 9, but has failed to do so. A copy of this Report and Recommendation will be

mailed to Hernandez at both his address of record, SCI Greene, and to SCI Albion.

2 The petition erroneously cites the docket number of Hernandez’s underlying criminal case as

MJ-5003-CR-0003820-2021. Respondents attached a copy of Hernandez’s criminal case docket to

their answer. ECF No. 5-3. An up-to-date version of the docket sheet is available to the public

online at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-02-CR-0005683-

2021 (last viewed 4/8/2026).

The matter has been referred to the undersigned United States Magistrate

Judge for a Report and Recommendation. See 28 U.S.C. § 636(b)(1); Local Civil

Rule 72. For the reasons below, it is respectfully recommended the petition for a

writ of habeas corpus be dismissed with prejudice and a certificate of appealability

be denied.

II. Report

A. Relevant Background

On July 19, 2022, Hernandez pled guilty to one count of aggravated assault

and one count of recklessly endangering another person in the Court of Common

Pleas of Allegheny County at Case No. CP-02-CR-0005683-2021. See Transcript,

Guilty Plea Proceeding, 7/19/2022, T23-1229. On December 5, 2023, Hernandez was

sentenced to a term of imprisonment of 3 – 8 years. ECF No. 5-3; see also

Transcript, Sentencing Proceeding, 12/5/2022, T23-0120. According to the state

court docket, Hernandez neither filed a direct appeal nor filed a petition for state

collateral relief under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa.

C.S.A. § 9541, et seq. ECF No. 5-3; https://ujsportal.pacourts.us/Report/

CpDocketSheet?docketNumber=CP-02-CR-0005683-2021.

Hernandez filed the instant petition on April 28, 2023,3 asserting three

grounds for relief which appear to touch on allegations of ineffective assistance of

counsel. ECF No. 1, at 5, 7, and 9. Respondents filed an Answer, along with the

3 Applying the prisoner mailbox rule, Hernandez’s petition is deemed filed as of April 28, 2023,

the day he placed it in the prison mailing system.

original state court record including the transcripts of the guilty plea proceeding

and the sentencing hearing. Respondents argue the Petition should be dismissed

because Hernandez has failed to exhaust his claims4 and, in the alternative, all of

the claims are without merit. Id. at 9-11. Hernandez did not file a Reply nor has he

filed anything in this matter since he filed the original petition in 2023. The matter

is fully briefed and ripe for consideration.

A review of the Petition, the Answer, and the relevant state court record,

reveals the claims Hernandez raises in this petition have not been fairly presented

to the state courts and therefore are procedurally defaulted.

B. Relevant Legal Standards

Before seeking habeas corpus relief in federal court, a state prisoner must

first exhaust his remedies in state court. See 28 U.S.C. 2254(b)(1)(A); O’Sullivan v.

Boerckel, 526 U.S. 838, 842 (1999). To do so, the petitioner must “give the state

courts an opportunity to act on his claims before he presents those claims to a

federal court in a habeas petition.” O’Sullivan, 526 U.S. at 842. The petitioner

must “give the state courts one full opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review process.”

4 At the time Respondents filed their Answer, the time to file a PCRA petition had not expired.

Thus, Respondents argued that Hernandez had failed to exhaust his claims but the claims were not

procedurally defaulted as a state remedy was still available as Hernandez could timely file a PCRA

Petition. ECF No. 5 at 11. Even after the Answer was filed, however, Hernandez still did not file a

PCRA petition. See ECF No. 5-3. Through the passage of time, the time to file a PCRA petition now

has expired and state relief is procedurally barred. As will be explained, when exhaustion is futile

because state relief is procedurally barred, the claims are considered exhausted but are procedurally

defaulted.

Id. In Pennsylvania, one complete round includes presenting the federal claim

through the Superior Court on direct or collateral review. See Lambert v. Blackwell,

387 F.3d 210, 233 (3d Cir. 2004). When a claim is not exhausted because it has not

been ‘fairly presented’ to the state courts, but state procedural rules bar the

applicant from seeking further relief in state courts, the exhaustion requirement is

satisfied because there is ‘an absence of available State corrective process. See

Coleman v. Thompson, 501 U.S. 722, 750 (1991) (superseded by statute and

overruled on other grounds by Martinez v. Ryan, 566 U.S. 1 (2012)). “In such cases,

however, [petitioners] are considered to have procedurally defaulted their claims

and federal courts may not consider the merits of such claims unless the” petitioner

can demonstrate “cause and prejudice” or a “fundamental miscarriage of justice.”

Id.; McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999).

C. Discussion

In this case, Hernandez was sentenced on December 5, 2022. His counseled

post-sentence motion was denied on March 13, 2023. ECF No. 5-8. A judgment

becomes final at the conclusion of direct review, including discretionary review in

the Supreme Court of Pennsylvania and the Supreme Court of the United States, or

at the expiration of time for seeking the review. See 42 Pa.C.S. § 9545(b)(3).

Because Hernandez did not file a direct appeal, his conviction became final on April

12, 2023, thirty (30) days after the expiration of the time for seeking review.

The Pennsylvania Post-Conviction Relief Act (“PCRA”) provides that a PCRA

petition “shall be filed within one year of the date the judgment becomes final,

unless the petition alleges and the petitioner proves that:

(i) the failure to raise the claim previously was the result

of interference by government officials with the

presentation of the claim . . . .

(ii) the facts upon which the claim is predicated were

unknown to the petitioner and could not have been

ascertained by the exercise of due diligence; or

(iii) the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or

the Supreme Court of Pennsylvania after the time period

provided in this section and has been held by that court to

apply retroactively.

42 Pa. C.S.A. § 9545(b)(1). As stated above, Hernandez did not file a PCRA petition.

More than a year has passed since Hernandez’s judgment of conviction became final

and none of the aforementioned exceptions to the limitations period applies to

Hernandez’s claims. It is clear from the Petition, the Answer, and the relevant

state court record, Hernandez has failed to present any of the claims contained in

his federal petition to the state courts. Consequently, his claims are procedurally

defaulted.

Federal courts may not consider procedurally defaulted claims unless the

petitioner “can demonstrate cause for the default and actual prejudice as a result of

the alleged violation of federal law, or demonstrate that failure to consider the

claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at

750. To demonstrate “cause” for a procedural default, a petitioner must point to

some objective external factor which impeded his efforts to comply with the state’s

procedural rules. See Murray v. Carter, 477 U.S. 478, 488 (1986) (superseded on

other grounds by Banister v. Davis, 590 U.S. 504, 514 (2020). “Prejudice” will be

satisfied only if a petitioner can demonstrate that the outcome of the state

proceeding was “unreliable or fundamentally unfair” as a result of a violation of

federal law. See Lockhart v. Fretwell, 506 U.S. 364, 366 (1993). Petitioners may

establish a fundamental miscarriage of justice if they can make a credible showing

of actual innocence. See Reeves v. Fayette SCI, 897 F.3d 154, 160 (3d Cir. 2018).

In this case, Hernandez has not advanced any argument as to why the Court

should excuse the procedural default of his claims. As stated, he has not filed

anything since he filed original petition more than three years ago. As such, there

is nothing in the record to establish that some objective external factor prohibited

him from presenting the claims he raises in his federal petition during the state

court proceedings and the outcome of the state proceeding was “unreliable or

fundamentally unfair” or the failure to consider the claims will result in a

fundamental miscarriage of justice.5

5 In the Petition, Hernandez claims “I’m Spanish & do not speak or understand English very

well” to suggest he was “confused” at the time he unknowingly entered a guilty plea. ECF No. 1 at 2.

Although not raised by Hernandez as an excuse to procedural default, the Court finds that if it were,

it would not be an objective external factor which prohibited him from presenting his claims in state

court first to excuse default. This is because the Petition itself is written in English without any

indication there was the translation assistance of another. Additionally, the state court record

reflects that Petitioner marked “yes” on his guilty plea colloquy form when asked “Do you read, write

and understand the English language” which was initialed, signed, dated, and affirmed by

Hernandez to be “true and correct.” ECF No. 5-5 at 2, 11. Finally, the transcript of the plea hearing

reflects that Hernandez engaged with the Court and entered a plea without the assistance of an

interpreter. See T23-1229, Guilty Plea Proceeding, 7/19/2022.

III. Certificate of Appealability

AEDPA codified standards govern the issuance of a certificate of

appealability for appellate review of a district court's disposition of a habeas

petition. It provides that “[u]nless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals from . . . the final

order in a habeas corpus proceeding in which the detention complained of arises out

of process issued by a State court[.]” 28 U.S.C. § 2253(c)(1)(A). It also provides that

“[a] certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” Id., § 2253(c)(2).

Hernandez is not entitled to a certificate of appealability as jurists of reason

would not find it debatable that the claims presented in this habeas petition are

procedurally defaulted and Hernandez has not advanced any argument as to why

this Court should excuse the procedural default of his claims.

IV. Conclusion

For the above reasons, it is respectfully recommended the petition for writ of

habeas corpus under 28 U.S.C. § 2254 be dismissed with prejudice as procedurally

defaulted and Hernandez has failed to advance any argument as to why this Court

should excuse the procedural default of his claims.6 It is further recommended a

certificate of appealability be denied with respect to each claim.

6 This Report and Recommendation serves as notice of Hernandez’s claim being subject to

dismissal based on procedural default. Hernandez has a reasonable opportunity to oppose the

dismissal of his habeas petition through the filing of timely objections.

Any party is permitted to file written specific Objections to this Report and

Recommendation to the assigned United States District Judge. In accordance with

28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and LCvR 72.D.2, Hernandez, because

he is a non-electronically registered party, must file written objections, if any, to

this Report and Recommendation by April 27, 2026. Respondents, because they

are electronically registered parties, must file objections, if any, by April 23, 2026.

The parties are cautioned that failure to file Objections within this timeframe “will

waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir.

2011) (quoting Siers v. Morrash, 700 F.2d 113, 116 (3d Cir. 1983)). See also Equal

Emp. Opportunity Comm’n v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017)

(describing standard of appellate review when no timely and specific objections are

filed as limited to review for plain error).

DATED this 8th day of April, 2026.

BY THE COURT:

s/Christopher B. Brown

Christopher B. Brown

United States Magistrate Judge

cc: JUAN HERNANDEZ

QP-3783

SCI GREENE

169 PROGRESS DRIVE

WAYNESBURG, PA 15370

(via U.S. First Class Mail)

JUAN HERNANDEZ

QP-3783

SCI Albion

10745 Route 18

Albion, PA 16475-0001

(via U.S. First Class Mail)

Ashley N. Oravetz

Allegheny County District Attorney's Office

(via ECF electronic notification)