The opinion of the court was delivered by: Gene E.K. Pratter United States Districtjudge
AND NOW , this 25 th day of January, 2011, having considered the Petition for Writ of Habeas Corpus filed by Plaintiff William Cummings (Docket No. 1), U.S. Magistrate Judge Elizabeth Hey's Report & Recommendations (Docket No. 14), and Mr. Cummings' Objections thereto (Docket No. 15), it is hereby ORDERED that:
1. The Report & Recommendations are APPROVED and ADOPTED .
2. Mr. Cummings' Objections are OVERRULED .*fn1
3. Mr. Cummings' Petition is DISMISSED without prejudice to Mr. Cummings' ability to seek habeas relief once he has exhausted his state court remedies.
In his Objections to the Report & Recommendation, Mr. Cummings asserts (although without supplying any documentary support) that "since this petition has been filed, the Pennsylvania Superior Court has 'quashed' [his] ... appeal." The Court shall interpret this claim as a suggestion that Mr. Cummings may have exhausted his state remedies in the time since Magistrate Judge Hey filed her Report & Recommendation. On this basis, Mr. Cummings moves, "in the interest of judicial economy," to be allowed to amend his petition so that he might avoid dismissal.
However, "in evaluating whether a petitioner has exhausted available state remedies, a court must consider the remedies available at the time the petition was filed." Riley v. Owens, 1987 U.S. Dist. LEXIS 9444, *4 (E.D.Pa. 1987) (emphasis added) (citing Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982)). Magistrate Judge Hey's finding regarding exhaustion is thus as valid as it would be if Mr. Cummings' state remedies have, in fact, been exhausted during the time since his petition was filed or even since the Report & Recommendation was written and entered.
Magistrate Judge Hey has noted that given the timeline of Mr. Cummings' case, there is little concern that a subsequent habeas petition would be untimely in federal court. Thus, this Court will not exercise its discretion to stay this matter pursuant to Heleva v. Brooks, 581 F.3d 187 (3d Cir. 2009).
4. There is no probable cause to issue a certificate of appealability. *fn2
5. The Clerk of Court shall mark this case CLOSED
for all purposes, including statistics.