October 21, 2013
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
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. 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. Id . That petition remains pending.
On June 20, 2013,  Talley filed this petition for habeas corpus and an attached memorandum challenging his life sentence, relying on Miller. 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.
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 dismiss a mixed petition. Id. at 278. Whether to stay a petition under Rhines is discretionary with the district court, guided by the timeliness concerns at issue. Id. at 277-78.
The Third Circuit subsequently held that Rhines was not limited only to mixed petitions, i.e., petitions raising both exhausted and unexhausted claims, but was applicable to cases presenting only unexhausted claims. Heleva v. Brooks , 581 F.3d 187 (3d Cir. 2009). The Third Circuit cited to the Supreme Court decision in Pace v. DiGuglielmo , 544 U.S. 408 (2005), in holding that a petitioner may file a "protective" petition, even when the petition contains only unexhausted claims. 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).
In his petition, Talley specifically asked the court to stay consideration of his petition. Doc. 1 at 15 (prayer for relief). Less than two months after the Miller decision, Talley filed an amended PCRA petition presenting the claim to the state court. Just prior to the year anniversary of the Miller decision, Talley filed a protective habeas in this court to ensure federal review if he is unsuccessful in obtaining relief in the state court. Depending on the retroactive effect of Miller, Talley's sentence may have to be revisited by the state court. The District Attorney does not oppose granting a stay, and suggests that the trial court has been holding Talley's PCRA petition awaiting the Pennsylvania Supreme Court's decision in Commonwealth v. Cunningham, No. 38 EAP 2012 (Pa., argued Sept. 12, 2012 and resubmitted on briefs on Aug. 13, 2013), in which the court has been asked to determine whether Miller applies retroactively to cases that were final when Miller was decided.
Under the circumstances, staying consideration of Talley's petition is consistent with both Rhines and Talley's interests in preserving an opportunity for federal review. If Talley is unsuccessful in obtaining relief in the state court, he may then reactivate this federal petition once his Miller claim is exhausted. Therefore, I recommend that his habeas petition be placed in suspense and that Petitioner and Respondents notify this court within thirty days of the conclusion of the state court proceedings, so that the habeas petition may proceed in this court if necessary.
For the foregoing reasons, I make the following:
AND NOW, this 21st day of October ____, 2013, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be placed in suspense pending Petitioner's 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 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 writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, 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.
3. Petitioner and Respondents shall notify the court within thirty days of the conclusion of the state proceedings so the habeas petition may proceed in this court.