September 20, 2013
CHRISTOPHER McENEANEY, Petitioner,
JOHN KERESTES, et al., Respondents.
REPORT AND RECOMMENDATION
DAVID R. STRAWBRIDGE, Magistrate Judge.
Before the Court is a counseled petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Christopher McEneaney, who is currently incarcerated at the State Correctional Institution Mahanoy in Frackville, Pennsylvania. For the reasons that follow, we recommend that the petition be stayed pending the state courts' consideration of McEneaney's claim relying on the United States Supreme Court's recent decision in Miller v. Alabama, 132 S.Ct. 2455 (2012).
I. FACTS AND PROCEDURAL HISTORY
McEneaney was convicted in the Delaware County Court of Common Pleas on March 23, 2007 of first degree murder. He was sixteen years old at the time of the offense. He was sentenced to a term of life imprisonment, without the possibility of parole, by the Honorable Patricia H. Jenkins on May 7, 2007. On June 8, 2009, the Superior Court affirmed the judgment of conviction. Commonwealth v. McEneaney, Appeal Docket Sheet, No. 1473 EDA 2007 (Pa.Super. Ct.). He did not seek review in the Pennsylvania Supreme Court.
On or about August 3, 2009, McEneaney filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. §§ 9541, et seq. ("PCRA"). The court appointed Scott D. Galloway, Esquire, as counsel. Attorney Galloway eventually filed an Amended PCRA petition, which he later supplemented, albeit several weeks after a deadline given to him by the court. The PCRA Court denied Petitioner's requests for the appointment of new counsel during this time and, finding no merit in the claims that Petitioner sought to raise, ultimately dismissed the PCRA petition on February 10, 2011. Attorney Galloway did not appeal that dismissal, nor does McEneaney appear to have attempted to do so pro se. 
McEneaney retained new counsel, Teri B. Himebaugh, Esquire, on July 26, 2011. She filed a second action in the PCRA Court seeking nunc pro tunc relief and alleging that her client's Sixth Amendment rights were violated in that Attorney Galloway abandoned him on PCRA review and thus deprived him of his opportunity to litigate various claims of ineffective assistance of trial and/or appellate counsel. On August 21, 2002, he supplemented his petition to assert that his Eighth Amendment rights were violated when he was sentenced as a juvenile to life without the possibility of parole, in light of Miller v. Alabama, 132 S.Ct. 2455 (June 25, 2012). The PCRA Court dismissed his petition on October 16, 2012 as untimely. McEneaney's appeal of that denial of relief is currently pending before the Superior Court. See Commonwealth v. McEneaney, Appeal Docket Sheet, No. 3002 EDA 2012 (Pa.Super. Ct.) (reflecting submission of appeal to panel on June 17, 2013).
On June 18, 2013, and again through Attorney Himebaugh, McEneaney filed his petition for habeas relief in this Court. In what is couched as a single ground for relief, Petitioner asserts that the state courts violated his Sixth, Eighth, and Fourteenth Amendment rights in the dismissal of PCRA petition as untimely and in the refusal to reinstate his appellate rights where he alleged ineffective assistance of trial, appellate, and post-conviction counsel, "and [in the rejection of] his entitlement to sentencing relief pursuant to Miller v. Alabama . " (Pet. at 9.) His petition identifies 17 claims that he had wanted to raise in his initial PCRA review or which he contends were improperly dismissed by the PCRA Court without benefit of a hearing. (Pet. at Attach. 1).
In conjunction with his counseled habeas petition, McEneaney also filed a motion to stay his petition. (Doc. No. 2.) He argues that a stay is necessary not only to permit him to exhaust all of his state claims but also because of the pendency of Commonwealth v. Cunningham before the Pennsylvania Supreme Court, addressing whether Miller may be applied retroactively to a state prisoner who had already had a PCRA petition dismissed as McEneaney has. Petitioner argues that "[t]he federal court should refrain from hearing and deciding the Miller claim until after the state court rules on Cunningham, supra, " and requests "that the Court place the habeas petition in abeyance/suspense until such time as he has exhausted his state appeals and/or Commonwealth v. Cunningham has been decided." (Mot. for Stay at 9.)
Upon referral from the Honorable Jan E. DuBois for preparation of a Report and Recommendation, we directed the Delaware County District Attorney to respond to Petitioner's motion for a stay. In their response submitted on August 14, 2013, Respondents confirmed that they do not oppose a stay of this proceeding until after the conclusion of state appellate court review of the pending PCRA petition. (Resp. [Doc. No. 5] at 8.)
Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that the petitioner give the state courts an opportunity to review and correct his allegations of error before he seeks relief in the federal court. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004). The governing statute, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), further provides that a habeas petitioner is not in compliance with this exhaustion requirement "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 "claim" that McEneaney identifies, with its several component parts, is clearly unexhausted, as the issues raised there are currently before the Superior Court in his appeal of the October 16, 2012 dismissal of his second PCRA petition. As the Supreme Court recognized in Rhines v. Weber, 544 U.S. 269 (2005), however, the exhaustion requirement can conflict with AEDPA's one year statute of limitations. In that case the Court approved the use of a "stay and abey" procedure for petitioners who could show good cause for failing to exhaust a claim with potential merit claim and who came to federal court to ensure that the unexhausted claim was being presented within the statute of limitations. The Court recognized that by staying the federal petition rather than dismissing it as unexhausted, the petitioner could complete the state procedures necessary to comply with AEDPA's exhaustion requirement without the need to re-file at a point in time that might be outside of the statute of limitations. Rhines, 544 U.S. at 278.
Apart from the circumstances of Rhines involving a "mixed" petition presenting exhausted and unexhausted claims, both the Supreme Court and the Third Circuit have sanctioned the filing of a "protective" habeas petition with a request that consideration of the petition be stayed pending exhaustion of state remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); Heleva v. Brooks, 581 F.3d 187, 191 (3d Cir. 2009). In addition, the Third Circuit, relying on language in Pace, concluded that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute good cause' [satisfying the test laid out in Rhines ] for him to file in federal court." Heleva, 581 F.3d at 191 (quoting Pace, 544 U.S. at 416).
McEneaney has specifically asked the Court to stay consideration of his habeas petition and Respondents do not oppose the requested stay. They recognize that, depending on the retroactive effect of Miller, McEneaney's sentence may have to be revisited by the state court given Petitioner's status as a juvenile offender given a mandatory sentence of life without the possibility of parole. See Resp. at 8-9 (recognizing that "[i]f the Pennsylvania Supreme Court rules in the pending Cunningham case that Miller should apply retroactively to cases [that have] already finished direct appeal, petitioner will have another avenue of relief to pursue in state court, " that is, to file another PCRA petition within 60 days from the date of such a decision). It is still possible, therefore, for Petitioner to obtain desired relief in the state court as to his mandatory sentence, if not also his entire conviction should the Superior Court find merit in his other claims. Finally, we note that many other courts in this district are following the "stay and abey" approach in similar circumstances. See, e.g., Elliott v. Folino, Civ. A. No. 13-1944, 2013 WL 3943163 (E.D. Pa. July 31, 2013) (order of Yohn, J., approving and adopting Report of Hey, M.J.); Graber v. Harry, Civ. A. No. 13-3369, 2013 WL 3929629 (E.D. Pa. July 30, 2013) (order of Davis, J., approving and adopting Report of Rice, M.J.); Figueroa v. Wenerowicz, Civ. A. No. 13-2687, 2013 WL 3929628 (E.D. Pa. July 30, 2013) (order of Diamond, J., approving and adopting Report of Angell, M.J.); Stinson v. Wenerowicz, Civ. A. No. 13-1814, 2013 WL 3084441 (E.D. Pa. June 18, 2013) (order of Joyner, J., approving and adopting Report of Hey, M.J.); Correa v. Harlow, Civ. A. No. 12-1954, 2012 WL 3041818 (E.D. Pa. July 24, 2012) (Report of Rice, M.J.), approved and adopted by Sanchez, J. (July 31, 2012).
Under the circumstances, staying consideration of McEneaney's petition is consistent with Pace/Rhines and with Petitioner's interest in preserving an opportunity for federal review. If he is unsuccessful in obtaining relief in the state court, he may then reactivate this federal petition once his Miller claim and his other claims are exhausted. Therefore, we recommend that this matter be placed in suspense and that Petitioner and Respondents be required to notify the Court within thirty days of the conclusion of the state court proceedings so that the fully exhausted habeas petition may proceed in this Court.
Our Recommendation follows.
AND NOW, this 20th day of September, 2013, IT IS RESPECTFULLY RECOMMENDED that the Court STAY consideration of the habeas petition and HOLD IT IN ABEYANCE on the civil suspense docket pending exhaustion of state court remedies. IT IS FURTHER RECOMMENDED that the Court require Petitioner and Respondents to notify the court within thirty days of the conclusion of the state appellate proceedings so that the habeas petition may proceed in this Court.
Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.
AND NOW, this day of, 2013, upon careful and independent consideration of the petition for a writ of habeas corpus and accompanying motion to stay, the response, and available state court records, and after review of the Report and Recommendation of United States Magistrate Judge David R. Strawbridge, it is ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is placed IN SUSPENSE until the conclusion of the state appellate proceedings; and
3. Petitioner and Respondents SHALL NOTIFY the Court within thirty days of the conclusion of the state proceedings so that the habeas petition may proceed in this Court.