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Anthony J. Dick v. John E. Wetzel

November 29, 2012


The opinion of the court was delivered by: Hon. John E. Jones III


November 29, 2012 Presently before the Court are two motions: (1) Petitioner Anthony Dick's motion for a stay of federal proceedings, (Doc. 33), and (2) Respondents' motion to dismiss the instant federal habeas corpus action without prejudice, (Doc. 23). For the reasons that follow, the Court will deny Petitioner's motion for a stay and grant Respondents' motion to dismiss.


Petitioner is a state prisoner who was sentenced to death on August 23, 2007, following his plea-based convictions for first-degree murder and related charges in the Court of Common Pleas, Columbia County, Pennsylvania. Petitioner's convictions and sentence were affirmed on August 18, 2009. Commonwealth v. Dick, 978 A.2d 956 (Pa. 2009), reargument denied, Commonwealth v. Dick, No. 548 CAP (Nov. 5, 2009). His timely petition for certiorari review was denied on April 19, 2010. Dick v. Pennsylvania, - U.S. -, 130 S.Ct. 2098, 176 L.Ed.2d 731 (2010).

On May 7, 2010, Petitioner filed a motion for leave to proceed in forma pauperis and for appointment of federal habeas corpus counsel. (Doc. 1.) The Court granted the motion on July 6, 2010, granting in forma pauperis status to Petitioner, appointing the Capital Habeas Corpus Units of the Federal Public Defender Office for the Middle District of Pennsylvania and the Federal Community Defender for the Eastern District of Pennsylvania ("FCDO") to represent Petitioner, and directing Petitioner to file his habeas petition by January 3, 2011. (Doc. 4.)

Prior to the date his federal habeas petition was due, on July 7, 2010, Petitioner filed a pro se petition for post-conviction collateral relief under Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. §§ 9541-9546. See Commonwealth v. Dick, No. CP-19-CR-0000188-2006 (Columbia C.P.), Criminal Docket Sheet, available at (last visited November 28, 2012). On July 29, 2010, the PCRA court appointed Ms. Claudia Van Wyk, Esquire, of the FCDO to represent Petitioner in the PCRA proceedings and directed the filing of an amended counseled PCRA petition.*fn1 See id. That amended counseled PCRA petition was filed on September 25, 2012. See id.

Also before his federal habeas petition was due, Petitioner requested eight extensions of time in which to file his federal petition, (Docs. 5, 7, 9, 11, 14, 16, 18, 20), which were granted, (Docs. 6, 8, 10, 13, 15, 17, 19, 21), respectively.

On August 6, 2012, Respondents filed a motion to dismiss this action without prejudice, arguing that Petitioner has not yet exhausted his state court remedies and therefore this federal habeas action is premature. (Doc. 23.) They also argue that a stay of these federal proceedings would be inappropriate in this case where there is "plenty of time for [Petitioner] to file a federal habeas action if the state proceedings are exhausted without him attaining the remedy he desires in state court." (Doc. 24 at 12.) After the motion to dismiss was fully briefed, on October 17, 2012, Petitioner filed his habeas petition. (Doc. 32.) On that same date, Petitioner filed a motion to stay these proceedings and hold them in abeyance while he exhausts his first PCRA petition, as amended, filed in the Columbia County Court of Common Pleas. (Doc. 33.) These motions have been fully briefed and are ripe for disposition.


A. Statutory Framework

A district court is authorized to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner challenging the very fact or duration of his or her confinement. Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S. Ct. 1827, 36 L.Ed.2d. 439 (1973).

A petitioner filing for relief under the federal Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), must generally comply with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can consider the merits of his habeas corpus petition. Pursuant to § 2254(b)(1)(A), the petitioner must give the state courts an opportunity to review allegations of error before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004). "An applicant shall not be deemed to have exhausted the remedies available in the court 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); see also Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (finding that before a federal court can adjudicate claims under habeas corpus, interests of comity and federalism dictate that the state courts must have the first opportunity to decide a petitioner's claims).

AEDPA also establishes a one-year statute of limitations for filing a federal habeas corpus petition. 28 U.S.C. § 2244(d)(1); Wilson v. Beard, 426 F.3d 653, 659 (3d Cir. 2005). This one-year period runs from the date on which the judgment became final by the conclusion of direct review or when the time for seeking certiorari review expires. 28 U.S.C. § 2244(d)(1)(A); Clay v. United States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). The one-year limitations period is tolled, however, while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2); see also Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

Under Pennsylvania's Post Conviction Relief Act, a petitioner must file for PCRA relief within one year of the date the judgment becomes final. 42 Pa. Cons. Stat. ยง 9545(b)(1). For purposes of the PCRA, a judgment becomes final at the conclusion of direct review, including discretionary review in the United States Supreme ...

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