United States District Court, M.D. Pennsylvania
May 21, 2004.
ROBERT S. BARNHART, Petitioner
KENNETH D. KYLER, Superintendent, et al., Respondents
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court are objections (Doc. 14) by petitioner,
Robert S. Barnhart ("Barnhart"), to the report of the magistrate judge
finding petitioner's claim of unconstitutional denial of parole by
respondent, the Pennsylvania Board of Probation and Parole ("Board"), to
be procedurally barred and recommending dismissal of the petition for
writ of habeas corpus without prejudice to allow petitioner to seek
additional state collateral review of his claim. Petitioner contends that
his procedural default should be excused. Alternatively, he requests that
the instant action be held in abeyance while he pursues available state
Resolution of the objections requires an examination of the twin
doctrines of exhaustion and procedural default. For the following
reasons, the court adopts the finding of the magistrate judge that
petitioner's claim is procedurally barred. However, the court concludes
that a stay of this action is not warranted because state remedies are unavailable. Therefore, the court will dismiss
the petition for writ of habeas corpus with prejudice.
I. Statement of Facts,
Only the procedural history of Barnhart's journey from the Board
through the state and federal courts is material to resolution of the
instant petition, and it may be summarized briefly. Barnhart, serving a
thirteen to thirty-year sentence of imprisonment relating to a 1980
conviction for rape and aggravated assault,*fn1 sought and was denied
parole on several occasions, the last by written decision of the Board on
April 24, 2002.*fn2 (Doc. 1 ¶¶ 1, 3-6; Doc. 10, Exs. A-F, N).
Barnhart responded by filing a petition for writ of mandamus in the
Commonwealth Court of Pennsylvania. (Doc. 10, Exs. J-K). He claimed that
the Board had applied post- 1996 parole guidelines to his pre- 1996
conviction in violation of the Ex Post Facto Clause of the Constitution.
See, U.S. CONST. art. I, § 9, cl. 3. The revised guidelines
emphasize public safety rather than rehabilitation as the "foremost"
factor in parole decisions. See PA. STAT. ANN. tit. 61, §
331.1. The commonwealth court rejected Barnhart's claim and denied the
petition by order dated November 22, 2002. Barnhart filed a motion for
reargument, which the court denied on December 12, 2002. (Doc. 10, Exs.
D-E). On January 13, 2003, Barnhart filed a notice of appeal to the Supreme
Court of Pennsylvania. (Doc. 10, Ex. K). The court quashed the action as
untimely, citing Pennsylvania Rule of Appellate Procedure 903(a), which
requires appeals to be filed within thirty days of the final order of the
lower court. It denied Barnhart's subsequent motion for reargument on May
21, 2003. (Doc. 10, Exs. H-I).
Barnhart filed the instant petition for writ of habeas corpus on
December 17, 2003, presenting the same claim of unconstitutional denial
of parole previously raised in the state petition for writ of mandamus.
(Doc. 1). In a report and recommendation dated March 10, 2004, the
magistrate judge to whom the case was assigned found that the claim was
procedurally barred by Barnhart's failure to file a timely appeal from
the order of the commonwealth court but concluded that Barnhart could
obtain further review through a state petition for writ of habeas corpus.
(Doc. 13). The report recommended that the case be dismissed without
prejudice to Barnhart's right to re-file his federal petition after the
Supreme Court of Pennsylvania was given an opportunity to adjudicate the
merits of the claim. (Doc. 13).
The "Great Writ" serves a unique role in the American legal system.
See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807)
(Marshall, C.J.). It provides a means by which prisoners, in state
custody pursuant to valid and enforceable judgments of state courts, may
challenge the legality of their detention in the inferior courts of the
federal government. 28 U.S.C. § 2254(a): see, Ex parte
Royall, 117 U.S. 241, 247-53 (1886). District courts presented with a petition for writ of
habeas corpus have the authority indeed the obligation to
overturn the judgment of a state tribunal and order the release of the
prisoner when necessary to vindicate rights guaranteed under the United
States Constitution. 28 U.S.C. § 2254(a): see Brown v.
Alien, 344 U.S. 443, 482-87 (1953): Mickens-Thomas v.
Vaughn, 355 F.3d 294, 309-10 (3d Cir. 2004). No other legal process
vests in federal courts such authority. Lehman v. Lycoming County
Children's Servs. Agency, 458 U.S. 502, 513 (1982) ("Federal habeas
involves a substantial thrust by the federal system into the sphere
normally reserved to the states and hence a change in the federal-state
balance.") (quoting Sylvander v. New Eng. Home for Little
Wanderers, 584 F.2d 1103, 1111-12 (1st Cir. 1978)). The Great Writ
serves as a stalwart protector of individual constitutional rights but
represents a significant encroachment on the sovereignty of the
Jurisprudential concerns over the intrusive nature of the writ, and the
desire to promote comity between the state and federal judiciaries, gave
rise to a pair of related doctrines, exhaustion and procedural default,
designed to accord greater deference to the adjudicatory authority of
state courts. See Coleman v. Thompson, 501 U.S. 722, 730
(1991): Wainwright v. Sykes. 433 U.S. 72, 80-81 (1977):
Rovail, 117 U.S. at 253. These doctrines operate to give state courts the
initial opportunity to pass on the legality of custody under federal law.
Murray v. Carrier, 477 U.S. 478, 485 (1986): Rose v.
Lundy, 455 U.S. 509, 516 (1982). Exhaustion requires that the
prisoner invoke available state procedures for presentation of a federal
claim before raising the claim in a petition for writ of habeas corpus.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999);
Rose, 455 U.S. at 516. Procedural default requires the district
court to reject a federal claim, even if meritorious, if previously
dismissed by the state courts based on a procedural violation.
Lambrix v. Singletary, 520 U.S. 518, 523 (1997):
Wainwright, 433 U.S. at 78-79. Together, these doctrines ensure
that a federal court will have the ability to negate a state decision
only after the state courts have had an adequate opportunity to
hear and pass on the merits of the claim. O'Sullivan, 526 U.S.
The interrelationship of these kindred doctrines has confounded the
federal judiciary. See, e.g., id., at 850-51 (Stevens, J.,
dissenting) (criticizing majority for "improperly comm[ing]" the
doctrines). Exhaustion may be established through default, since a
procedural bar may render state remedies unavailable. Id., at
844-45. Procedural default may be established through failure to exhaust,
if procedural rules operate to preclude resort to state courts.
Id., Where one doctrine ends and the other begins is a question
more often posited than answered and a distinction generally emphasized
but rarely clarified.
The confusion overshadowing these doctrines is evident in the briefs
and report filed in this case. Barnhart contends that procedural default
should be excused based on a failure to exhaust. The Board argues that the
claim is unexhausted and yet focuses its argument on procedural default.
The magistrate judge, cognizant that the parties veered off course,
concluded that the claim is procedurally defaulted but that exhaustion
cannot be excused.*fn4 Ships passing in the night is an apt metaphor.
See, HENRY WADSWORTH LONGFELLOW, The Theologian's Tale:
Elizabeth, in TALES OF A WAYSIDE INN 224 (Riverside Press 1913)
To set a signal in this darkness, the court will conduct a review of
each doctrine, examining its etiology and its application in this case.
Following this discussion, the court will examine whether procedural
default should result in dismissal or a stay of the action.
A. Exhaustion Doctrine
Exhaustion arose originally as a judicial construct, to balance the
need to protect individuals from unconstitutional detentions with the
desire to limit intrusions into states' adjudicatory power.
Rose, 455 U.S. at 515. Although now codified, the doctrine's
interpretation continues to be animated by the same equitable principles
from which it sprung. O'Sullivan, 526 U.S. at 844. The
statutory version of the exhaustion requirement provides as follows: 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.
28 U.S.C. § 2254(c). The Supreme Court has adopted a
significantly relaxed interpretation of the phrase "any available
procedure." O'Sullivan, 526 U.S. at 844. It is generally
unnecessary for the petitioner to resort to "extraordinary remedies,"
such as "a suit for injunction" or "a writ of prohibition," to satisfy
the exhaustion requirement. Id. (quoting Wilwording v.
Swenson, 404 U.S. 249, 249-50 (1971) (per curiam)). Instead, the
petitioner need only present the claims through an established procedural
path, one that concludes with review in the high court of the state.
Id. at 845; Castille v. Peoples, 489 U.S. 346, 351
(1989): Wilwording. 404 U.S. at 249-50; Brown, 344 U.S. at 447.
Once the petitioner completes one full round of the state's standard
review process, the claim is considered exhausted even if alternative
channels of review exist. O'Sullivan, 526 U.S. at 844-45.
Presentation of the claim through the state judicial system for
purposes of exhaustion does not require compliance with procedural rules.
Id.; Picard v. Connor, 404 U.S. 270, 275 (1971); Swanger
v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984); United States
ex rel. Geisler v. Walters, 510 F.2d 887. 892 (3d Cir. 1975);
see also Castille, 489 U.S. at 351. The doctrine requires
merely that the petitioner present the claim to the state courts.
Swanger, 750 F.2d at 295; Geisler, 510 F.2d at 892.
It mandates exposure, not actual adjudication. See O'Sulliva,
526 U.S. at 845. Late or untimely filings, even if insufficient under
state procedural rules, satisfy the exhaustion doctrine. Id., Swanger, 750 F.2d
at 295; Geisler, 510 F.2d at 892. Direct appeal serves as the
most clearly acceptable means of exhausting a claim, but presentation
through other procedural paths is equally effective to meet the
requirement. See O'Sullivan, 526 U.S. at 845:
Castille, 489 U.S. at 351: Lines v. Larkin,
208 F.3d 153, 159 (3d Cir. 2000).
The instant case presents a rare example where an "extraordinary"
remedy provides the standard means of exhaustion. Pennsylvania does not
permit prisoners to challenge a denial of parole by the Board through
direct appeal, but does permit collateral attack through a mandamus
petition filed in the original jurisdiction of the Commonwealth Court of
Pennsylvania. See Coady v. Vaughn, 770 A.2d 287, 290-94 (
Pa. 2001): Rogers v. Pa. Bd. of Prob. & Parole. 724 A.2d 319,
323 n.5 (Pa. 1999). An adverse ruling by the commonwealth court may, in
turn, be appealed as of right to the Supreme Court of Pennsylvania.
See, 42 PA. CONS. STAT. §§ 723(a), 761(a): Werner v.
Zazyczny, 681 A.2d 1331, 1335 n.5 (Pa. 1996). This process
constitutes the standard means by which a prisoner may challenge a denial
of parole, completion of which satisfies exhaustion regardless of the
potential availability of other collateral remedies. See
Mickens-Thomas v. Vaughn, 321 F.3d 374, 376 n.2 (3d Cir. 2003).
Through his mandamus action, Barnhart met the exhaustion requirement.
He filed a petition for writ of mandamus in the commonwealth court,
presenting the claim now raised in the instant habeas petition. After it
was denied on the merits, he filed an appeal to the Supreme Court of
Pennsylvania, presenting the same claim. That this appeal was rejected as untimely does not
frustrate exhaustion. See O'Sullivan, 526 U.S. at 845;
Swange, 750 F.2d at 295. An adjudication on the merits was not
required. The claim was presented to the state supreme court through the
standard and appropriate procedural channel. Exhaustion is established.
See O'Sullivan, 526 U.S. at 845: Castille, 489 U.S.
B. Procedural Default Doctrine
The same federalism and comity concerns that animate the exhaustion
requirement also drive the procedural default doctrine.
Wainwright, 433 U.S. at 78-79; see also Lambrix, 520
U.S. at 523; Harris v. Reed, 489 U.S. 255, 260-64 (1989);
Caldwell v. Mississippi, 472 U.S. 320, 327 (1985). Just as
federal courts must decline to reach a federal issue that has not yet
been presented to state courts, they must also refuse to address an issue
that has been rejected by state courts based on a state procedural
violation. Edwards v. Carpenter, 529 U.S. 446, 451 (2000):
Gray v. Netherland, 518 U.S. 152, 162 (1996); Toulson v.
Beyer, 987 F.2d 984, 987 (3d Cir. 1993). Federal courts may question
the judgment of state courts on issues of federal law, but not on matters
of state law. Lambrix, 520 U.S. at 523; Coleman, 501
U.S. at 750. When a procedural default stands as an "independent and
adequate" ground for denying the claim, respect for the state court's
application of its own law dictates that the federal court decline to
reach the federal issue, even if meritorious. Id.; see also
Lambrix, 520 U.S. at 523; Harris, 489 U.S. at 260-64.
When procedural default is raised, the court must generally engage in a
tripart analysis. See, e.g., Neely v. Zimmerman, 858 F.2d 144,
147 (3d Cir. 1988). ederal habeas relief is barred by a default if: (1) a violation of
a state procedural rule did, in fact, occur; (2) the procedural rule is
"adequate" to support the decision and "independent" of federal law;*fn5
and (3) the default cannot be excused for "cause" or due to a potential
"fundamental miscarriage of justice." See, e.g., id., The court
will address each prong in turn.
1. State Procedural Default
To find a procedural default, the district court must analyze the state
proceedings and civil and appellate rules to determine whether the state
supreme court would likely reject the claim as barred.
O'Sullivan, 526 U.S. at 846-47; Castille, 489 U.S. at
351: Douglas v. Horn. 359 F.3d 257, 262 (3d Cir. 20Q4): Meritt v.
Blaine, 326 F.3d 157, 166 (3d Cir.), cert. denied, 124 So.
Ct. 317 (2003). Obviously, this task is simplified when the state courts
have identified a particular rule as grounds for rejecting the claim.
However, a federal court may find a default even in the absence of a
state court decision delineating the procedural bar. See
O'Sullivan., 526 U.S. at 846-47. Where the claim was not presented
to the state courts or was denied without explanation, the federal court
may presume that a default occurred if a state procedural rule clearly
bars the action. Id.: Doctor v. Walters, 96 F.3d 675, 680-81
(3d Cir. 1996). That a procedural default occurred in this case is obvious. In quashing
Barnhart's appeal, the Supreme Court of Pennsylvania cited Pennsylvania
Rule of Appellate Procedure 903, which requires appeals to be taken
within thirty days of the final order. See, PA. R. APP. P.
903(a). The commonwealth court denied Barnhart's petition for writ of
mandamus on November 22, 2002. Under Rule 903, an appeal was due by
December 22, 2002. Barnhart did not file a notice of appeal until January
Despite the decision of the Supreme Court of Pennsylvania, finding his
appeal barred under Rule 903, Barnhart argues that his appeal was timely
based on his interpretation of the Pennsylvania Rules of
Appellate Procedure. This contention is meritless. Default is a question
of state law and the ruling of the Supreme Court of Pennsylvania is
dispositive.*fn6 See Castille, 489 U.S. at 351;
Douglas, 359 F.3d at 262; Meritt, 326 F.3d at 166.
2. "Adequate" State Law Ground
Default will be recognized as a bar to federal relief only when the
procedural rule stands as an "adequate" ground for rejection of the
claim. Lee v. Kemna, 534 U.S. 362, 375-76 (2002): Lambrix. 520
U.S. at 523: Coleman, 501 U.S. at 750. If the rule is applied
inconsistently, or only rarely, then the respect owed to the state court
decision lessens significantly. Wainwright, 433 U.S. at 85-86;
Harris, 489 U.S. at 260-64. In these circumstances, the federal court may overlook the
procedural default and reach the underlying federal issue without
improperly impinging upon the state's adjudicatory authority. Id.;
see also Lee, 534 U.S. at 375-76.
Gauging the adequacy of a state procedural rule requires an examination
of the clarity of the provision and the consistency of its application.
Id.; Wainwright, 433 U.S. at 85-86. These considerations are
usually expressed as three factors: (1) application of the procedural
rule is "unmistakable," (2) the state supreme court did not address the
merits of the claim,*fn7 and (3) judicial application of the procedural
rule is consistent in similar instances. Doctor, 96 F.3d at
683-84; see O'Sullivan, 526 U.S. at 844; Harris, 489
U.S. at 262; Wainwright, 433 U.S. at 85-86. A failure of any of
these factors renders the procedural rule inadequate to bar habeas
review. Doctor, 96 F.3d at 683-84.
Pennsylvania Rule of Appellate Procedure 903 is patently applicable to
Barnhart's mandamus action. Mandamus petitions challenging a denial of
parole by the Board are within the original jurisdiction of the
Commonwealth Court of Pennsylvania. Coady, 770 A.2d at 290-94.
Appeals from these actions are controlled by Rule 1101, which provides
that appeals "shall be taken to the Supreme Court [of Pennsylvania] in the manner prescribed in Chapter 9 (appeals from
lower courts)." PA. R. APP. P. 1101(b). Under Rule 903, a notice of
appeal must be filed within thirty days of the commonwealth court's
decision. Id., 903(a). Contrary to Barnhart's assertion, this
period is not tolled by the filing of a motion for reconsideration, a
fact made unmistakably clear both by the absence of an express tolling
provision in Rule 903 and by subsequent rules warning against such an
assumption. See id., 1701 notes (stating that the "better
procedure" to avoid losing appellate rights is to file a notice of appeal
and motion for reconsideration at the same time). Pennsylvania rules
plainly state that the period for appeal of an action brought within the
original jurisdiction of the commonwealth court is thirty days from the
date of the final order, regardless of an intervening motion for
Barnhart's primary challenge goes to application of the rule itself. He
argues that this case is not properly governed by Rules 1101 and 903, but
by Rule 1113(a), which tolls the thirty-day period for filing an appeal
during the pendency of a motion for reconsideration in the commonwealth
court.*fn8 See id., 1113(a). This argument is meritless.
Rule 1113 governs only petitions for allowance of appeal to the supreme court.
See id. It does not address appeals as of right from the denial of a petition for writ of mandamus filed within the original
jurisdiction of the commonwealth court. Id.
Alternatively, Barnhart argues that a standing order of the supreme
court vitiates the application of Rule 903. The order in question, Order
No. 218, provides, in pertinent part, as follows:
[I]n all appeals from criminal convictions or
post-conviction relief matters, a litigant shall
not be required to petition for rehearing or
allowance of appeal following an adverse decision
by the Superior Court in order to be deemed to
have exhausted all available state remedies
respecting a claim of error.
Id. 1114 historical notes. Even assuming the relevancy of
this order to questions of procedural default, it is plainly inapplicable
here. It addresses only requests for review of orders of the superior
court, not the commonwealth court. See id., Order No. 218
facially has no relevance to the appeal of a denial of a petition for
writ of mandamus (which is not a "criminal conviction" or a
"post-conviction relief matter") by the commonwealth court. See id.:
see also Burkett v. Love, 89 F.3d 135
, 137-38 (3d Cir. 1996).
Pennsylvania Rule of Appellate Procedure 903 speaks in unmistakable
language and was applied by the state supreme court in this case to
refuse to hear the merits of Barnhart's claim. Moreover, it has been
applied consistently by other state tribunals. See, e.g., In re
Trust Under Deed of Green, 779 A.2d 1152, 1156-57 (
Pa. Super. 2001); see also, Bond v. Fulcomer, 864 F.2d 306, 312
(3d Cir. 1989) (discussing consistent application of Rule 903),
cited with approval in Doctor, 96 F.3d at 678-79. Indeed, the
time constraints of Rule 903 are viewed as jurisdictional, not susceptible to equitable waiver absent a "breakdown in the
court's operation." See, e.g., Commonwealth v. Coolbaugh,
770 A.2d 788, 791 (Pa. Super. 2001) (finding a "breakdown in the court's
operation" when the lower court erroneously advised the litigant of the
proper appeal period): see also Green, 779 A.2d at 1156-57.
Barnhart has not cited and the court has not discovered any case in which
an untimely notice of appeal was overlooked based on a mere
misunderstanding of procedural requirements. See Bond. 864 F.2d
at 312. Therefore, the court concludes that Pennsylvania appellate rules
were adequate to support dismissal of Barnhart's claim.
3. "Cause" or "Fundamental Miscarriage of
When a procedural default represents an independent and adequate ground
for denial of a claim, the petitioner may secure federal review only if
he or she can establish "cause" for the error or the unique potential for
a "fundamental miscarriage of justice" in the absence of federal court
review. Edwards, 529 U.S. at 451; Murray, 477 U.S. at
488. Both concepts are predicated on equitable concerns.
Harris, 489 U.S. at 260-64; see also Coleman, 501
U.S. at 750. "Cause" requires proof that an external factor prevented
compliance with the procedural rule at issue. Murray, 477 U.S.
at 488; Cristin v. Brennan, 281 F.3d 404, 420 (3d Cir.),
cert. denied, 537 U.S. 897 (2002). A fundamental miscarriage of
justice may be found if the petitioner presents evidence of actual
innocence of the underlying criminal charges. Schlup v. Delo,
513 U.S. 298. 327 (1995). In such a case, justice demands that the federal court overlook the procedural default and
entertain the claim. Harris, 489 U.S. at 260-64; see also
Coleman, 501 U.S. at 750.
Neither of these principles applies in this case. Barnhart failed to
file a timely appeal to the Supreme Court of Pennsylvania under the
erroneous assumption that his motion for reconsideration tolled the
limitations period. This misinterpretation of clearly established
Pennsylvania law is neither reasonable nor the result of external
factors. See Cristin, 281 F.3d at 420 (stating that "cause"
generally requires external impediment rather than mere "inadvertence" of
petitioner); Jones v. Morton, 195 F.3d 153, 160 (3d Cir. 1999)
(stating that the petitioner's "misunderstanding" of appellate rights is
not "cause" for procedural default). No evidence suggests that Barnhart
received incorrect information regarding the appeal period from an
attorney or representative of the judiciary. He apparently understood the
availability of review and simply chose not to invoke it until his motion
for reconsideration was denied. His decision, however unwise, is not
"cause" to excuse a procedural default. See Cristin, 281 F.3d
The case subjudice also presents no risk of a fundamental
miscarriage of justice. This exception is limited to truly extraordinary
cases, where there is a showing of "actual innocence" by the petitioner.
Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000): see
also Schlup, 513 U.S. at 327. Barnhart does not contest his guilt of
the underlying crimes, but challenges only the denial of parole. Refusing
to consider the petition could not result in a miscarriage of justice,
and default will not be excused. C. Dismissal or Stay
Procedural default bars relief but does not mandate dismissal.
Rejection of a claim by a state tribunal on procedural grounds does not
always foreclose other state courts from hearing the claim. Ex parte
Hawke, 321 U.S. 114, 116 (1944) (per curiam). quoted in Rose. 455
U.S. at 515-17; Holloway v. Horn, 355 F.3d 707, 717-18 (3d Cir.
2004). These other avenues for relief are not explored in the context of
exhaustion analysis, which requires only completion of the "standard"
appellate process, without resort to "extraordinary" remedies.
O'Sullivan, 526 U.S. at 844. Thus, a claim may be considered
both exhausted and procedurally defaulted even though a state court would
entertain the merits of the claim.
The availability of other state court remedies creates a dilemma for
federal courts. Prior to recent statutory changes, lack of exhaustion or
procedural default generally resulted in dismissal without prejudice.
See Rose, 455 U.S. at 522; Bond., 864 F.2d at 312.
Such action imposed no serious hardship on the petitioner, who could
return to federal court with the same claim after completing habeas
prerequisites in the state system. See Rose, 455 U.S. at 509,
522; Bond, 864 F.2d at 312: see also Crews v. Horn.
360 F.3d 146, 150-53 (3d Cir. 2004). The enactment of the Antiterrorism
and Effective Death Penalty Act ("AEDPA") of 1996, Pub.L. No. 104-132,
110 Stat. 1218, imperils past judicial practices. Crews, 360
F.3d at 150-53. The AEDPA amendments to 28 U.S.C. § 2244 impose
strict new limitations periods for initial and subsequent petitions for
writ of habeas corpus. Duncan v. Walker, 533 U.S. 167, 179
(2001); Crews, 360 F.3d at 150-53. Relief is available under
these provisions only if a petition is filed in the federal system within
one year of the final court judgment on the claim. 28 U.S.C. § 2244
(d)(1). This period is not tolled during the pendency of federal habeas
proceedings, even when the district court dismisses the claim without
prejudice to allow the petitioner to exhaust state remedies.*fn9
Duncan, 533 U.S. at 181-82; see,
28 U.S.C. § 2244(d)(2). After one year, a petitioner is precluded from
filing another federal petition. Crews, 360 F.3d at 150-53; see
also, 28 U.S.C. § 2244(b)(1), (d)(1); Stewart v.
Martinez-Villareal, 523 U.S. 637. 640-45 (1998): Jones,
195 F.3d at 159-61. Hence, time is of the essence. With or without
prejudice, dismissal often acts as a bar to subsequent petitions raising
Courts of appeal have responded to the preclusive effect of the
amendments by liberalizing the power of district judges to stay habeas
actions, permitting the petitioner to return to state court and exhaust
state remedies. Crews, 360 F.3d at 150-53 (citing Zarvela
v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001)): see also Gray. 518 U.S.
at 162; Engle v. Isaac., 456 U.S. 107, 125 n.28 (1982). This
protects the petitioner's ability to obtain federal review of valid
constitutional claims and preserves the state courts' opportunity to
adjudicate the claims in the first instance. Crews, 360 F.3d at
151-54: see also, Duncan, 533 U.S. at 181-82
(Stevens, J., concurring). When confronted with a habeas petition
containing an unexhausted claim, the federal court should stay the action
whenever dismissal would expose the petitioner to the limitations period of the habeas statute.
Crews, 360 F.3d at 151-54.
No similar rule has yet been applied to procedurally defaulted claims,
but the same reasoning supports a stay in these circumstances. Both the
default and exhaustion doctrines rest on principles of comity and
federalism, informed by equitable interests concerning the rights of the
petitioner. Granberry v. Greer, 481 U.S. 129, 134-35 (1987);
Rose, 455 U.S. at 515; Wainwright, 433 U.S. at 78-79;
see also O'Sullivan, 526 U.S. at 845. Procedural default denies
state courts the first opportunity to hear a claim, but federal courts
need not dismiss the petition to protect this prerogative when other
state remedies remain available. If reasonable means of state review
exist, the federal court should hold a procedurally defaulted claim in
abeyance pending completion of those proceedings. See Bond, 864
F.2d at 312; see also Crews, 360 F.3d at 150-53.*fn10
Dismissal would be an empty gesture to the state's interest at the habeas
Dismissal of the instant case would preclude Barnhart from returning to
federal court with his claim. The Board denied Barnhart's application for
parole on April 24, 2002, triggering commencement of the one-year
limitations period for filing a federal habeas petition.*fn11
See, 28 U.S.C. § 2244 (d)(1). This period was tolled during
the pendency of the mandamus proceedings, which concluded on December 22,
2002, when the period for appeal to the supreme court expired. See
Carey v. Saffold, 536 U.S. 214, 220-21 (2002). It was not tolled,
however, by the untimely appeal, the subsequent motion for
reconsideration, or the instant federal petition for writ of habeas
corpus. See Douglas, 359 F.3d at 260-62; Merritt, 326
F.3d at 161-62. The AEDPA required Barnhart to file his petition by
December 22, 2003. See, 28 U.S.C. § 2244(d)(1). This date
having passed, Barnhart is now barred from raising his claim in federal
court through a new petition for writ of habeas corpus.
A stay would be appropriate if Pennsylvania law offers Barnhart a
collateral remedy. Specifically, the court must examine whether Barnhart
"has the right under the law of the State to raise, by any available
procedure, the question presented." 28 U.S.C. § 2254(c);
see, id. § 2254(b); Lines, 208 F.3d at
162-64; Lambert v. Blackwell, 134 F.3d 506, 517-22 (3d Cir.
1997): see also Gray. 518 U.S. at 162: Engle, 456 U.S. at 125 n.28. Of
course, it is somewhat difficult to forecast how a state tribunal will
react to a renewed application for relief, even in the face of a
seemingly clear procedural bar. See Wilwording, 404 U.S. at 250
("Whether the State would have heard petitioner's claims in any of the suggested
alternative proceedings is a matter of conjecture. . . .) However, the
mere possibility of an unexpected or aberrant decision by a state
tribunal does not render the district court incapable of resolving the
availability of state remedies. Wilwording, 404 U.S. at 250,
cited in Q'Sullivan, 526 U.S. at 844; Wenger v.
Frank, 266 F.3d 218, 223-24 (3d Cir. 2001); Powell v.
Wyrick, 657 F.2d 222. 224 (8th Cir. 1981), cited in Santana v.
Fenton, 685 F.2d 71, 76 n.3 (3d Cir. 1982). Indeed, the federal
judiciary has extensive experience in the divination of hypothetical
state court rulings. See Erie R.R. Co. v. Tompkins,
304 U.S. 64, 79-80 (1938) (holding that the Constitution requires federal
courts in diversity cases to apply law of the state, as it would be
interpreted by the state supreme court in the circumstances). Federal courts
may rely on clearly established precedent to predict that state courts,
presented with an application for relief, would refuse to entertain the
claims. O'Sullivan, 526 U.S. at 844; Doctor, 96 F.3d at
681-83; Alien v. Attorney Gen, 80 F.3d 569, 573 (1st Cir. 1996)
("If stare decisis looms . . . and there is no plausible reason
to believe that a replay will persuade the [state] court to reverse its
field[, the federal court may consider the claims exhausted.]").
This is necessarily a delicate balance. See Lines, 208 F.3d
at 164-69; Doctor, 96 F.3d at 681-83; Toulson, 987
F.2d at 987-89. If there is any "reasonable probability" that the state
courts would hear the claims, the federal court should stay the case to
permit the petitioner to pursue those remedies. Santana, 685
F.2d at 76 n.3 (quoting Powell, 657 F.2d at 224); see
Crews, 60 F.3d at 154; Merritt, 326 F.3d at 170 n.10; see also Gray, 518 U.S. at 162;
Engle, 456 U.S. at 125 n.28. But when state rules clearly
preclude additional review the federal court has an obligation to stop
the "procedural merry-go-round" and dismiss the petition. Cruz v.
Warden of Dwight Corr. Ctr., 907 F.2d 665, 671 (7th Cir. 1990):
see also, Fitzsimmons v. Yeager, 391 F.2d 849, 857 (3d Cir.
1968) (en banc) ("[L]itigants should not be sent on patently futile,
circular journeys in formal search of relief which has already been
A stay of these proceedings to permit Barnhart to return to the state
judicial system would be futile, and dismissal is appropriate. As the
Third Circuit has recognized, the only avenue potentially available in
Pennsylvania to pursue a denial of parole claim, other than a petition
for writ of mandamus, is a petition for writ of habeas corpus. See,
Coady v. Vaughn, 251 F.3d 480, 489-90 (3d Cir. 2001);
Burkett, 89 F.3d at 142: see also Rogers, 724 A.2d at
322. Yet, the procedural default of a mandamus petition bars a state
habeas action just as it bars federal relief. See 42 PA. CONS.
STAT. § 6503(b) (" [T]he writ of habeas corpus shall not be available
if a remedy may be had by post-conviction hearing proceedings authorized
by law."). Pennsylvania courts enforce a fair presentation requirement
quite similar to that imposed by federal courts in habeas actions,
see Commonwealth v. McNeil, 665 A.2d 1247, 1250 (
Pa. Super. 1995), cited in Doctor, 96 F.3d at 680; Commonwealth v.
Wolfe, 605 A.2d 1271, 1273 (Pa. Super. 1992). cited in Doctor.
96 F.3d at 680; Commonwealth ex rel. Wardrop v. Warden. State Corr.
Inst. at Dallas, 352 A.2d 88, 89-90 (Pa. Super. 1975).
cited in, Hankins v. Fulcomer, 941 F.2d 246, 251 n.10
(3d Cir. 1991), and they have consistently held that procedural
default, during direct review or collateral proceedings, bars a
subsequent state habeas petition raising the claim, see, e.g.,
Commonwealth v. O'Brian, 811 A.2d 1068, 1070-71 (
Pa. Super. 2002): Moore v. Roth, 331 A.2d 509, 510 (Pa. Super. 1974).
Barnhart's failure to file a timely notice of appeal of the commonwealth
court order precludes review of his denial of parole claim in a state
petition for writ of habeas corpus.*fn12 Futility of one remedial path does not, of course, foreclose others.
See Hawke, 321 U.S. at 116. Indeed, the undefinable panoply of
procedural devices available in judicial proceedings ensures that, for
each potential means of relief found to be precluded, two more will
arise. See Wilwording, 404 U.S. at 250; Alien, 80
F.3d at 573. But the district court need not slay this Hydra. So long as
the petitioner is accorded a reasonable opportunity to invoke standard
channels of direct and collateral state court review, dismissal of a
procedurally defaulted petition is appropriate and works no injustice
against the rights of the vigilant to secure habeas relief. See
O'Sullivan, 526 U.S. at 844; Crews, 360 F.3d at 150-53.
The district court need not and should not perpetuate an endless cycle of
procedural maneuverings in the state and federal judiciaries.
Fitzsimmons, 391 F.2d at 857; Alien, 80 F.3d at 573;
see also Barefoot v. Estelle, 463 U.S. 880, 888-89 (1983). The
Great Writ follows the rule that litigation must come to an end.
That time has come in this case. Standard review channels were open to
Barnhart, but are now closed by his procedural default. No reasonably
apparent procedure remains available by which Barnhart can secure state
court consideration of the merits of his claim. The petition for writ of
habeas corpus will be dismissed with prejudice. An appropriate order will issue. ORDER
AND NOW, this 21st day of May, 2004, upon consideration of the report
and recommendation of the magistrate judge (Doc. 13), and the objections
thereto (Doc. 14), and for the reasons stated in the accompanying
memorandum, it is hereby ORDERED that:
1. The recommendation of the magistrate judge
(Doc. 13) is ADOPTED except as modified in the
2. The petition for writ of habeas corpus (Doc. 1)
is DISMISSED with prejudice.
3. A certificate of appealability is DENIED.
4. The Clerk of Court is directed to CLOSE this