Opinion
CIVIL ACTION NO. 06-2164.
August 4, 2006
REPORT AND RECOMMENDATION
Presently before this court is a pro se petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. Timothy L. Young ("Petitioner"), who is in custody at the State Correctional Institution at Cresson, Pennsylvania, alleges that unconstitutional errors committed by the trial court deprived him of his Sixth Amendment right to the effective assistance of counsel. The Honorable Timothy J. Savage referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons stated below, it is recommended that Petitioner's claims be DISMISSED without prejudice.
I. BACKGROUND AND PROCEDURAL HISTORY
The background and procedural history were gleaned from Petitioner's habeas petition and the Commonwealth's answer, inclusive of all exhibits.
On April 23, 2002, after a bench trial before the Honorable Maurino Rossanese in the Court of Common Pleas for Montgomery County, Petitioner was convicted of third degree murder for the death of Anthony Oglesby. See Commonwealth v. Young, No. 104 EDA 2004, slip op. at 1-2 (Pa.Super.Ct. Feb. 9, 2005) ("Super. Ct. op."); Resp.'s Ex. B at 1 (Affidavit of Probable Cause). After being convicted, Petitioner filed pro se motions seeking a new trial based on ineffective assistance of trial counsel; for this reason, the trial court appointed new counsel. Super. Ct. op. at 2. After a hearing on September 24, 2002, Petitioner was sentenced to ten to twenty years of imprisonment. Id. On March 19, 2003, the trial court conducted a post-sentence hearing to consider Petitioner's claims that trial counsel had been ineffective for failing to impeach the main prosecution witness with his prior criminal history and for failing to call Petitioner as a witness. (N.T. 3/19/03 at 7). By order dated December 16, 2003, the trial court denied relief. Super. Ct. op. at 2. Petitioner raised the identical two claims to the Pennsylvania Superior Court. Id. at 2-3. The Superior Court affirmed the trial court's decision and concluded that the two claims of ineffective assistance of trial counsel lacked merit. Id. at 5-9. Allowance of appeal ("allocatur") from the Pennsylvania Supreme Court, was denied on November 23, 2005. Resp.'s Ex. F. Petitioner did not thereafter seek certiorari in the United States Supreme Court.
On May 23, 2006, Petitioner filed the instant application for federal habeas corpus relief asserting that trial counsel was ineffective for failing to impeach the main prosecution witness with his prior criminal history and for failing to call Petitioner to testify at trial. Pet. at 9. On the same day, Petitioner filed a motion requesting the court to stay action upon his habeas petition so that he could exhaust additional claims in state court by way of a petition under the Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. ("PCRA"). On July 7, 2006, Petitioner filed a motion to compel production of documents. Respondent urges that the habeas petition be denied for lack of merit. See Ans. at 6-7. For the reasons which follow, Petitioner's motions will be denied. This court further recommends that the habeas petition be dismissed, without prejudice to refiling at the conclusion of anticipated state court remedies.
II. DISCUSSION
A. Staying a Habeas Petition: General PrinciplesWhen a habeas petition contains exhausted and unexhausted claims, it is known as a mixed petition. See Rhines v. Weber, 125 S. Ct. 1528, 1531 (2005). Traditionally, such a petition required dismissal. See id. at 1533 (citing Rose v. Lundy, 455 U.S. 509, 522 (1982)). However, after amendment of the habeas statute in 1996 to include a one-year period of limitations, dismissal of mixed petitions risks foreclosing habeas relief to petitioners, inasmuch as the federal habeas year could expire while the district court is still considering a pending petition. Id. For this reason, the Supreme Court has held that, in limited circumstances, the district court may stay a mixed petition and hold it in abeyance while the petitioner attempts to exhaust state court remedies. Id. at 1534-36. A petitioner must show good cause for the failure to exhaust state court remedies before having filed his mixed habeas petition. Id. at 1535. Even if good cause is present, a habeas petition should not be stayed if the unexhausted claims are plainly meritless. Id. (citing 28 U.S.C. § 2254(b)(2)). On the other hand, if the petitioner has good cause for the failure to exhaust, his unexhausted claims are potentially meritorious, and he has not engaged in dilatory tactics, staying the habeas petition and holding it in abeyance until state court remedies are exhausted is appropriate. Id.
Section 2254(b)(2) of Title 28 allows the court to deny a habeas petition on the merits, notwithstanding the petitioner's failure to exhaust state court remedies.
B. This Petition Should not be Stayed
This habeas petition contains two claims and they are the same claims Petitioner raised on direct appeal to the Superior Court. See supra Section I. Therefore, the claims are exhausted. See Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 2004). Since Petitioner has not presented a mixed petition, he is not necessarily entitled to stay and abeyance. See Rhines, 125 S. Ct. at 1533-36; see also Crews v. Horn, 359 F.3d 146, 151-55 (3d Cir. 2004). Further, since Petitioner has not informed this court of the unexhausted claims he wishes to exhaust in the state courts, it is impossible to determine if they are plainly meritless, and, hence, inappropriate for habeas stay. See Rhines, 125 S. Ct. at 1535.
Dismissal of this petition, on the other hand, should not jeopardize Petitioner's ability to refile, after exhausting his state court remedies. First, Petitioner still has several months to file a PCRA petition within the state court's one-year statute of limitations which typically begins to run on the date a conviction becomes final on direct review. 42 Pa. Cons. Stat. Ann. § 9545(b)(1), (3). On direct appeal, the state's highest court denied allocatur on November 23, 2005. Resp.'s Ex. F. Petitioner's ninety days to seek certiorari from the United States Supreme Court expired on February 21, 2006. See Sup. Ct. R. 13(1). Thus, on February 21, 2006, the PCRA statute of limitations began to run, allowing Petitioner until February 21, 2007 to file a timely PCRA petition. 42 Pa. Cons. Stat. Ann. § 9545(b)(1), (3). Plainly, failure to grant a stay of this habeas petition will not jeopardize Petitioner's opportunity to exhaust state court remedies.
The PCRA statute of limitations has alternative starting dates for cases involving governmental interference, new evidence or a new constitutional right that has been held to be retroactively applicable. 42 Pa. Cons. Stat. Ann. § 9545(b)(1)(i)-(iii). However, since Petitioner can still file a timely PCRA petition using the ordinary starting date, it is not necessary to consider whether the alternative starting dates apply.
Second, refusal to grant a stay will not prejudice Petitioner's right, ultimately, to seek federal relief. His AEDPA year has not yet expired and a timely filed PCRA petition will toll his federal year the entire time the PCRA proceedings remain pending in the state courts. Like the PCRA statute of limitations, the habeas period of limitations commenced running for Petitioner on February 21, 2006, the date his conviction became final. See 28 U.S.C. § 2244(d)(1)(A); Morris v. Horn, 187 F.3d 333, 337 n. 1 (3d Cir. 1999). The clock presently continues to run, because a timely federal habeas petition does not toll the habeas period of limitations. Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Petitioner's AEDPA year will expire on February 21, 2007, unless Petitioner files a timely PCRA petition. 28 U.S.C. § 2244(d)(2); cf. Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005) (holding that an untimely PCRA petition is not "properly filed" and will not toll the habeas period of limitations). Petitioner still has several months in which he can file a timely PCRA petition. Once he does so, the habeas period of limitations will be tolled, that is, stop running. 28 U.S.C. § 2244(d)(2). No more of his AEDPA year will be used, until the time to seek allocatur expires, Swartz v. Meyers, 204 F.3d 417, 420-21 (3d Cir. 2000); or, if Petitioner does seek allocatur, until review in the Pennsylvania Supreme Court is completed. See Stokes v. Dist. Att'y, Philadelphia County, 247 F.3d 539, 540-43 (3d Cir. 2001) (holding that the ninety day period within which certiorari can be sought after the Pennsylvania Supreme Court denies allocatur on PCRA appeal does not toll the habeas period of limitations under § 2244(d)(2)). Petitioner should bear in mind that, if he does seek review in the Pennsylvania Supreme Court, once that review is completed tolling under § 2244(d)(2) will expire (and the habeas period of limitations will begin to run again), even if he does timely seek certiorari. Miller v. Dragovich, 311 F.3d 574, 578-79 (3d Cir. 2002).
The habeas statute of limitations also has alternative starting dates for cases involving governmental interference, new evidence or a new constitutional right that has been held to be retroactively applicable to cases on collateral review. 28 U.S.C. § 2244(d)(1)(B)-(D). However, since Petitioner has filed a timely habeas petition using the ordinary starting date and will be able to do so later if he promptly files a timely PCRA petition, it is not necessary to consider whether the alternative starting dates apply.
State court remedies are exhausted without seeking allocatur; instead, seeking review in the Pennsylvania Superior Court is sufficient. Lambert v. Blackwell, 387 F.3d at 233-34.
Therefore, this court concludes that the habeas petition should not be stayed pending exhaustion in the state courts. The claims Petitioner has presented already are fully exhausted and could be reviewed on their merits, but for Petitioner's desire to exhaust additional claims for later presentation to this court. Since, the petition can be dismissed, without prejudice to Petitioner's right to refile immediately upon exhaustion of state court remedies, the instant filing will not count as Petitioner's first habeas petition for purposes of 28 U.S.C. § 2244(b) or bar any subsequent filing. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998).
Since this petition should be dismissed, Petitioner's motion to compel production of documents (Doc. No. 7) is denied.
III. CONCLUSION
Petitioner has until February, 2007 to file a timely PCRA petition raising additional claims of error in his conviction. If he promptly files in state court to exhaust these claims, his year to file in federal court will automatically stop running until the state's highest court renders a decision or denies allocatur or Petitioner fails to appeal further. Hence, this Petition should not be stayed and held in abeyance. Instead, it should be dismissed, without prejudice, so that he can exhaust state court remedies before promptly returning to this court for habeas relief at the conclusion of state proceedings. Reasonable jurists would not debate this court's procedural disposition of Petitioner's claims, so no certificate of appealability should issue. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 4th day of August, 2006, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the habeas petition be DISMISSED without prejudice so that Petitioner can exhaust state court remedies and, thereafter, return to federal court promptly. Petitioner has not shown that reasonable jurists would debate this court's procedural disposition of his petition, thus, there is no probable cause to issue a certificate of appealability.
IT BE SO ORDERED.