MICHAEL O'NEAL ECCLES, Petitioner.
TABB BICKELL, et al., Respondents.
WILLIAM W. CALDWELL, District Judge.
On April 16, 2013, Michael O'Neal Eccles filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition challenges his 2010 conviction in the Court of Common Pleas of Adams County, Pennsylvania, for robbery and conspiracy to commit robbery, after a plea of guilty. Petitioner has also filed a motion (Doc. 2) to proceed in forma pauperis and a motion (Doc. 3) to stay these proceedings.
We will grant Eccles' motion to proceed in forma pauperis but deny his motion to stay. We will also dismiss this petition without prejudice since Eccles had not yet exhausted his state-court remedies.
We base this background on the dockets from the common pleas and appellate courts, the 2254 petition, and the motion to stay.
On May 24, 2010, Eccles pled guilty to conspiracy to commit robbery and making a threat of immediate serious injury. On the same day, he was sentenced to eight to sixteen years in prison. He did not file a direct appeal. Commonwealth v. Eccles, CP-01-CR-0000079-2010 (Court of Common Pleas-Adams Cnty.).
On April 21, 2011, Eccles filed with the trial court a pro se petition under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. Ann. §§ 9541-9546. ( Id. ). On April 20, 2012, the court denied the PCRA petition. On May 10, 2012, Eccles filed a timely appeal to the Pennsylvania Superior Court. Commonwealth v. Eccles, 891 MDA 2012 (Pa. Super.). On December 5, 2012, the superior court affirmed the denial of Eccles' PCRA petition. On January 2, 2013, Eccles filed a timely petition for allowance of appeal with the Pennsylvania Supreme Court. Commonwealth v. Eccles, 44 MAL 2013 (Pa.). That petition is still pending. ( Id. ).
A 2254 petitioner must have exhausted his state-court remedies before a federal court can grant relief. See Rolan v. Coleman, 680 F.3d 311, 317 (3d Cir. 2012)("Title 28 U.S.C. § 2254 requires that a habeas petitioner exhaust the remedies available in the state courts before a federal court can exercise habeas corpus jurisdiction over his claim."). Generally, if state-court remedies have not been exhausted, the district court must dismiss the petition. Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012).
Eccles recognizes that he has not exhausted his state-court remedies, and he realizes the significance of the fact that his petition for allowance of appeal is still pending in the state supreme court. He nonetheless filed his 2254 petition because he fears that one filed later may be barred by the one-year statute of limitations for 2254 petitions, 28 U.S.C. § 2244(d)(1), if the supreme court denies him further appellate review, and he does not receive a copy of its order doing so until the limitations period has run. He has thus protectively filed his 2254 petition, and asks the court to stay the petition until the supreme court decides his petition for allowance of appeal.
We have the authority to stay a 2254 petition while the petitioner exhausts state-court remedies. Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir. 2009). To obtain a stay, the petitioner must show "good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.'" Id. at 190 (quoting Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 1535, 161 L.Ed.2d 440 (2005)).
We will not grant the stay because Petitioner has failed to show good cause for his failure to exhaust before he filed his 2254 petition. Petitioner asserts he has good cause because if the state supreme court denies his petition for allowance of appeal, he may not receive notice of the order in time before the statute of limitations runs to file another 2254 petition. (Doc. 3, Mot. to stay § 5).
Good cause may be shown if the amount of time left in the limitations period creates the risk that a petitioner may not be able to file a timely 2254 petition after exhaustion of state-court remedies. Id. at 192 n.3; Gerber v. Varano, ___ F.App'x___, ___, 2013 WL 341470, at *3 (3d Cir. 2013)(nonprecedential). However, here Petitioner has ...