United States District Court, E.D. Pennsylvania
JUSTIN CARTER, Petitioner, Pro se, HUNTINGDON, PA.
For THE DISTRICT ATTORNEY OF THE COUNTY OF LEHIGH, Respondent: JEFFREY S. DIMMIG, LEAD ATTORNEY, LEHIGH COUNTY DIST ATTY OFFICE, ALLENTOWN, PA.
REPORT AND RECOMMENDATION
MARILYN HEFFLEY, UNITED STATES MAGISTRATE JUDGE.
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Justin Carter (" Petitioner" or " Carter"), a prisoner incarcerated at the State Correctional Institution in Huntingdon, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY
On September 21, 2007, following a jury trial before the Honorable Alan M. Black of the Lehigh County Court of Common Pleas, Carter was convicted of third degree murder. The conviction arose from the stabbing death of Gregory Leon Benton on January 12, 2007, during an altercation which occurred outside a bar in Allentown, Pennsylvania. On November 28, 2007, Carter was sentenced to a prison term of 20 to 40 years. Carter did not appeal the sentence.
On May 20, 2008, Carter filed a petition pursuant to Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. § 9545 et seq. (" PCRA"). Counsel was appointed and an amended petition was filed raising several claims of ineffective assistance of trial counsel, including a claim that trial counsel was ineffective for failing to file a direct appeal. After conducting an evidentiary hearing, the PCRA court granted Carter's petition in part, reinstating his right to file a direct appeal nunc pro tunc.
Petitioner filed his nunc pro tunc appeal and on June 8, 2009, the Pennsylvania Superior Court affirmed the judgment of sentence. Thereafter, Carter filed a petition for allowance of appeal, which was denied by the Pennsylvania Supreme Court on October 22, 2009. Petitioner did not pursue a writ of certiorari in the United States Supreme Court. Accordingly, the judgment of sentence became final on January 20, 2010, when the 90-day period for seeking such review expired.
On October 18, 2010, Carter filed a second PCRA petition, which the court treated as a timely first petition because his appellate rights had been reinstated. Counsel was appointed to represent Carter and an amended PCRA petition was filed on his behalf. Following an evidentiary hearing, Judge Black denied Carter's PCRA petition on November 22, 2011 and no appeal was taken. However, on February 16, 2012, Carter filed a petition seeking permission to file an appeal nunc pro tunc. On June 4, 2012, the PCRA court granted Carter's petition and reinstated his right to appeal the denial of his PCRA petition nunc pro tunc. Carter filed an appeal and on September 10, 2013, the Superior Court affirmed the order denying Carter's PCRA petition.
On September 19, 2013, Carter filed a third PCRA petition. On October 14, 2013, the Honorable William E. Ford issued a notice of intent to dismiss the petition without a hearing, finding that it was untimely. Petitioner filed a response to the notice of intent, but on November 19, 2013, the PCRA court dismissed the petition as untimely. See Doc. No. 1, Ex. 1 at 17. On January 17, 2014, Carter filed an appeal of the denial of his PCRA petition with the Pennsylvania Superior Court. On June 17, 2014, the Pennsylvania Superior Court affirmed the denial of Carter's PCRA petition as untimely. Carter subsequently filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which remains pending.
The present federal habeas petition, which includes a request for stay and abeyance, was filed on November 25, 2013, approximately a month and one-half before Carter appealed the denial of his most recently filed PCRA petition to the Superior Court. Doc. No. 2. In his petition, Carter raises the following claims in support of his request for habeas relief: (1) the trial court gave an erroneous, misleading jury instruction; (2) the Commonwealth failed to meet its burden of proving the elements of third degree murder; (3) his trial counsel failed to object to the erroneous, misleading jury instruction; and (4) his direct appeal counsel was ineffective for failing to inform him that the jury instruction was wrong and misleading. Further, in subsequent amendments to his habeas petition, Carter argues that he is " statutorily innocent." 
Respondents filed a response requesting that Carter's habeas petition be denied or in the alternative, that his request for a stay and abeyance be granted during the pendency of his state collateral review. Doc. No. 8. At the direction of this court, the Respondents filed a supplemental response on July 29, 2014, addressing Carter's procedural default argument. Doc. No. 13. Thereafter, Petitioner filed a reply to the Respondents' supplemental response. Doc. No. 14.
A. Carter's Petition for Stay and Abeyance
Absent unusual circumstances, the federal courts 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 mandates that the state courts be given a full and fair opportunity to address the petitioner's claims. See Edwards v. Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 146 L.Ed.2d 518 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488-89, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)). This means " that state prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). To exhaust a claim for relief, " [a] state prisoner must 'fairly present' all federal claims to the highest state court." Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002). The exhaustion requirement is not a mere formality, but is based on rules of comity between state and federal courts. O'Sullivan, 526 U.S. at 844.
In the instant matter, Carter acknowledges that his claims are not exhausted. When an avenue remains for a petitioner to exhaust his or her claims in state court, a habeas petition would ordinarily be dismissed without prejudice to allow the petitioner to exhaust the claims before returning to federal court. Lines v. Larkins, 208 F.3d 153, 159-60 (3d Cir. 2000). However, in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), the United States Supreme Court held that a stay and abeyance may issue in limited circumstances where the district court determines there was good cause for a petitioner's failure to exhaust claims first in state court and where the claims are not plainly meritless. Id. at 275. The Court noted that if a district court dismisses a habeas petition near the end of the one-year statute of limitations period, a petitioner's chances of being able to file in state court and return to federal court within the limitations period are slim. Id.
Carter's conviction became final on January 20, 2010, 90 days after the Pennsylvania Supreme Court denied his petition for allowance of appeal. See Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999) (judgment becomes final at the conclusion of direct review or the expiration of time for filing such review, including the time for filing a petition for writ of certiorari in the United States Supreme Court). This was after he filed his first PCRA petition and was granted permission to file a direct appeal nunc pro tunc. Petitioner's time for filing a PCRA petition expired one year from that date or on January 20, 2011. He waited 271 days to file a timely PCRA petition on October 18, 2010, which was denied following an evidentiary hearing before Judge Black. The Pennsylvania Superior Court affirmed the denial of that petition on September 10, 2013. Carter's federal limitations period remained tolled while his properly filed petition remained pending until October 10, 2013, when his time for petitioning the Pennsylvania Supreme Court for review expired. See 28 U.S.C. § 2244(d)(2) (" The time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection"). Consequently, Petitioner had 94 days remaining in his federal limitations period, or until January 12, 2014, to file a federal petition for writ of habeas corpus.
On September 19, 2013, Carter filed a third PCRA petition, which as previously stated, is on appeal before the Pennsylvania Supreme Court. If this petition had been properly filed, it would have further tolled the federal limitations period. However, given that the PCRA deadline had expired ...