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Talley v. Burns

United States District Court, Third Circuit

October 21, 2013

VINCENT TALLEY,
v.
SUPERINTENDENT BURNS, et al.

REPORT AND RECOMMENDATION

ELIZABETH T. HEY, Magistrate Judge.

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Vincent Talley, who is currently incarcerated at the Forest State Correctional Institution in Marienville, Pennsylvania. For the reasons that follow, I recommend that the petition be stayed pending the state courts' consideration of Talley's claim relying on the United States Supreme Court's recent decision in Miller v. Alabama, ___ U.S. ___ , 132 S.Ct. 2455 (2012).

I. FACTS AND PROCEDURAL HISTORY[1]

On March 15, 2000, a jury found Talley guilty of second degree murder, possession of an instrument of crime, and carrying a firearm without a license. See Commonwealth v. Talley, No. CP-51-CR-0610101-1999, Docket Sheets (Phila. C.C.P.). The charges arose from the March 19, 1999 shooting death of Marcus Williamson in Philadelphia. The Honorable John Poserina of the Court of Common Pleas of Philadelphia County sentenced Talley to life imprisonment without the possibility of parole for the murder and imposed no additional sentences on the other charges. Commonwealth v. Talley, No. 3369 EDA 2001 at 3 (Pa.Super. Dec. 19, 2002).

Talley filed a direct appeal challenging the trial court's denial of a suppression motion, the Commonwealth's reliance on hearsay and badgering a witness, ineffective assistance of counsel, and prosecutorial misconduct.[2] On December 19, 2002, the Superior Court affirmed the judgment of sentence. Commonwealth v. Talley, No. 3369 EDA 2001 (Pa.Super. Dec. 19, 2002). The Pennsylvania Supreme Court denied Talley's petition for allowance of appeal on March 30, 2004. Commonwealth v. Talley, No. 13 EAL 2003, Docket Sheets (Pa. Mar. 30, 2004).

In January 2005, Talley filed a PCRA petition, which was dismissed by the trial court on May 11, 2007. Commonwealth v. Talley, No. CP-51-CR-0610101-1999, Docket Sheets (Phila. C.C.P.). It does not appear that Talley filed an appeal. On July 9, 2010, Talley again filed a PCRA petition, and then amended that petition on August 15, 2012, to add a claim based on Miller.[3] Id . That petition remains pending.

On June 20, 2013, [4] Talley filed this petition for habeas corpus and an attached memorandum challenging his life sentence, relying on Miller.[5] See Doc. 1. In his memorandum, Talley asks that his life sentence be vacated and he be resentenced in accordance with Miller. Because Talley's Miller claim is unexhausted and pending in the state court, on October 10, 2013, the District Attorney filed a response, asking the court to stay consideration of the petition pending completion of the proceedings on Talley's pending PCRA petition. See Doc. 5 at 2.

II. DISCUSSION

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 his allegations of error before seeking relief in the federal court. Baldwin v. Reese , 541 U.S. 27, 29 (2004) (citing Duncan v. Henry , 513 U.S. 364, 365 (1995)). Pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),

[a]n 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).

Talley's Miller claim is clearly unexhausted. It is currently pending before the trial court in a PCRA petition. In Rhines v. Weber , 544 U.S. 269 (2005), the Supreme Court recognized that the exhaustion requirement can conflict with AEDPA's one year statute of limitations. The Supreme Court specifically considered the issue of mixed petitions, those containing both exhausted and unexhausted claims, observing that

[a]s a result of the interplay between AEDPA's 1-year statute of limitations and [Rose v.] Lundy's dismissal requirement, [455 U.S. 509 (1982)] petitioners who come to federal court with "mixed" petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.

Id. at 275. In such cases, if the petitioner can show good cause for failing to exhaust and that his unexhausted claims have potential merit, the Court approved the use of a "stay and abey" procedure. By staying the federal petition rather than dismissing it, a petitioner can 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. This procedure protects the concerns of both comity and finality by giving the state courts the first opportunity to address the unexhausted claims and preserving the petitioner's exhausted claims from an untimely fate if the federal court were to ...


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