The opinion of the court was delivered by: NORMA SHAPIRO, Senior District Judge
Petitioner, David Addams, has filed timely objections to the Report and
Recommendation issued by Magistrate Judge Jacob P. Hart on November 14,
2003. Addams v. Meyers, Nos. 03-3789, 03-3790 (E.D. Pa. Nov. 14, 2003)
(Report and Recommendation) ("R & R"). The court conducts de novo review
of the portions of a magistrate judge's R & R to which specific
objections have been filed. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b).
On December 19, 1996, following a jury trial, Addams was convicted of
robbery and possession of an instrument of crime in the Court of Common
Pleas of Delaware County, as a result of a robbery in a Burger King. On
February 5, 1997, Honorable Kenneth Clouse sentenced Addams to 8 ½
20 years' imprisonment. On March 6, 1997, following a jury trial, Addams
was convicted of robbery and possession of an instrument of crime in the
Court of Common Please of Delaware County, as a result of a robbery in a
McDonald's. Addams appealed the two
convictions, (consolidated for purposes of direct appeal), and on
January 6, 1998, the Superior Court affirmed his sentences. The Supreme
Court of Pennsylvania denied allocatur on October 6, 1998.
On April 12, 1999, Addams filed petitions for collateral relief
pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. § 9541, et
seq. to attack both convictions. After appointment of counsel and an
evidentiary hearing, the PCRA Court denied relief on August 8, 2000.
Addams filed timely appeals from the denials of relief, which were
consolidated by the Superior Court. The Superior Court affirmed the PCRA
decisions on September 19, 2001. On February 21, 2002 the Supreme Court
of Pennsylvania denied allocator.
On April 8, 2002, Addams filed a second PCRA petition, attacking the
Burger King conviction. Retained counsel filed amended petitions. In the
Third Amended Petition, counsel attacked the credibility of a
Commonwealth witness who testified at the suppression hearing. On July
1, 2003, the PCRA petition was dismissed. Counsel filed an appeal of the
denial of PCRA relief on August 11, 2003. That appeal is currently
pending in the Superior Court.
Also on April 8, 2002, Addams filed a second PCRA petition attacking
the McDonald's conviction. Judge Clouse dismissed the petition on
December 16, 2002. Addams filed an appeal from the PCRA dismissal, but
that appeal was dismissed for failure to file the docketing information
required by Pa. R.A.P. 3517.
On May 8, 2003, Addams filed a third PCRA petition attacking the
McDonald's conviction. Counsel amended the petition on September 22,
2003. In the amended petition, counsel attacked the credibility of a
Commonwealth witness that testified at the suppression hearing in that
case. The third PCRA appeal in the McDonald's case is pending.
On June 24, 2003, Addams filed the instant federal petitions for writs
of habeas corpus. The petitions were referred to Magistrate Judge Jacob
C. Hart. Addams has since filed motions for leave to file a second
amended petition in each of the cases. Because Judge Hart considered the
content of these amended petitions as the basis for his R&R, these
motions are granted nunc pro tunc. In his R&R, dated November 14, 2003,
Judge Hart found each of Addams' Second Amended petitions presented a
clearly unexhausted claim. In the Burger King and McDonald's actions,
Addams complains the Court of Common Pleas relied on the perjured
testimony of a police officer who testified at the suppression hearing.
At the hearing Police Officer Bardo testified that in advance of Addams'
arrest, he found a note, containing a description of Addams' car and
suggesting it had been used in previous robberies, and that the note was
the basis for his identification of Addams' car and Addams' subsequent
arrest. Addams maintains the note was fabricated after the arrest for use
at the suppression hearing. Because Addams asserts these claims in his
two pending PCRA petitions, they are unexhausted. Finding the instant
petitions contain both exhausted and unexhausted claims and are therefore
mixed, and relying on Rose v. Lundy, 455 U.S. 509 (1982), Judge Hart
recommended the petitions be dismissed. R&R at 5.
Addams, filing objections to the R&R, claims that Judge Hart
improperly found his petitions procedurally barred. While not contesting
the procedural history as recited in the R&R, Addams alleges Judge Hart
erred in his conclusion that a habeas petition which contains both
exhausted and unexhausted claims must be dismissed. He argues that Judge
Hart erred in his reliance on Rose v. Lundy, 455 U.S. 509 (1982), a
pre-AEDPA case, and should have relied instead on the suggestion of the
Court of Appeals in Merritt v. Blaine, 326 F.3d 157, 170 n.10 (2003) that
the proper course of action is to stay a habeas petition with exhausted
unexhausted claims. He maintains Judge Hart properly should have
recommended stays, rather than dismissal of the federal habeas petitions,
until the claims dually asserted in the PCRA petitions and the instant
federal habeas petitions are exhausted.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") set
a limitations period of one year within which a petitioner may apply for
a federal writ of habeas corpus challenging a state court action. See
28 U.S.C. § 2244(d). Additionally 28 U.S.C. § 2254 requires exhaustion of
remedies available in state court before a federal habeas petition can be
granted. Noting the apparent tension between these two procedural
requirements, in Merritt v. Blaine supra, the Court of Appeals suggested
that when petitioners have filed habeas actions in federal court before
they have fully exhausted their state remedies, the appropriate procedure
is to stay, rather than dismiss, the action to avoid the risk of
jeopardizing the timeliness of the federal petition while waiting for the
state claims to be exhausted.
The recent decision in Crews v. Horn, No. 99-9008, 2004 U.S. App. LEXIS
4205 (3d Cir. Mar. 4, 2004) definitively addressed this question. In
Crews, considering a timely federal habeas petition containing a mix of
exhausted and unexhausted claims dismissed by the district court, the
Court of Appeals adopted the position that:
following AEDPA, while it usually is within a
district court's discretion to determine whether
to stay or dismiss a mixed petition, staying the
petition is the only appropriate course of action
where an outright dismissal `could jeopardize the
timeliness of a collateral attack.'
Id., at*15-*16. Finding there was a substantial danger Crews would be
time-barred from returning to federal court because his petition would be
filed after the expiration of the limitations
period if tolling did not apply, the court held:
district courts have the discretion to stay mixed
habeas corpus petitions but that, as in this case,
when an outright dismissal could jeopardize the
timeliness of collateral attack, a stay is the
only appropriate course of action.
Id., at* 15-* 17, *22.
Applying this teaching to the instant action, the appropriate course of
action is to stay Addams' habeas petitions. Addams's federal petitions
each state a claim included in each of his pending PCRA petitions, i.e.,
the Court of Common Pleas relied on perjured testimony and fabricated
evidence to support his conviction. If the court were to follow Judge
Hart's recommendation, and dismiss Addams' petitions, he later might be
barred from returning to federal court on the exhausted claims by the
one-year limitations period. Although Judge Hart's recommendation was
correct at the time it was made, the Court of Appeals holding in Crews
v. Horn supercedes his reliance on Rose v. Lundy in ...