United States District Court, W.D. Pennsylvania
Paradise Baxter Magistrate Judge
Lee Moffatt (the "Petitioner") is a state prisoner.
He has filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (ECF No. 1). The Respondents have
filed a motion in which they contend that this case should be
dismissed because the Petitioner is exhausting his remedies
in state court. (ECF No. 6). For the reasons set forth below,
the Respondents' motion to dismiss is granted, the
petition is dismissed without prejudice, and a certificate of
appealability is denied. Additionally, the Petitioner's
motion for appointment of counsel (ECF No. 11) is denied.
November 12, 2014, in the Court of Common Pleas of Erie
County (the "trial court") at Criminal Docket 46 of
2014, a jury found the Petitioner guilty of numerous crimes,
including robbery, conspiracy to commit robbery, and
terroristic threats. Garrett A. Taylor, Esquire, represented
him. On January 27, 2015, the trial court sentenced the
Petitioner to an aggregate term of imprisonment of 10-20
years. The Petitioner did not file a direct appeal with the
Superior Court of Pennsylvania.
around October 29, 2015, the Petitioner filed with his trial
court a pro se collateral motion for relief from his
judgments of sentence pursuant to Pennsylvania's Post
Conviction Relief Act ("PCRA"), 42 Pa.C.S. §
9541 et seq. in which he alleged, inter
alia, that Attorney Taylor provided him with ineffective
assistance for failing to file a direct appeal. The trial
court appointed new counsel, William J. Hathaway, Esquire, to
represent the Petitioner. On April 28, 2016, it granted the
PCRA petition and reinstated the Petitioner's right to
file post-sentence motions and a direct appeal with the
Superior Court. (See Criminal Docket Sheet, ECF No. 6-1 at
trial court subsequently denied the Petitioner's
post-sentence motion and the Petitioner, through Attorney
Hathaway, filed a direct appeal with the Superior Court.
(Id. at 12-13). That appeal is pending before the
Superior Court at docket number 997 WDA 2016. (Id.
around December 1, 2016, the Petitioner filed with this Court
his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). On
February 10, 2017, the Respondents filed their motion to
dismiss (ECF No. 6), and on or around March 27, 2017, the
Petitioner filed his reply (ECF No. 10) and a motion for
appointment of counsel (ECF No. 11).
state prisoner seeking federal habeas relief is at the same
time exhausting his remedies in state court, the general rule
is that the federal court should dismiss the case before it
without prejudice. See, e.g.. Rose v.
Lundy, 455 U.S. 509 (1982). That rule applies in this
case, since the trial court reinstated the Petitioner's
direct appeal rights nunc pro tunc and he is
currently exhausting his remedies in the Superior Court.
issue of staying and abeying federal habeas cases is a fairly
recent development necessitated by the interaction of the
one-year statute of limitations enacted by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"),
28 U.S.C. § 2244(d)(2) and the pre-AEDPA rule set forth
in Rose v.
that required that federal courts dismiss without prejudice
habeas petitions that contain unexhausted claims. Rhines
v. Weber, 544 U.S. 269, 275 (2005) ("As a result of
the interplay between AEDPA's 1-year statute of
limitations and Lundy's dismissal requirement,
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.");
see also Heleva v. Brooks, 581 F.3d 187, 189-90 (3d
Cir. 2009). In Rhines v. Weber, the Supreme Court
held that in order to avoid predicaments that may arise in
attempting to comply with AEDPA's statute of limitations
while at the same time exhausting claims in state court, a
state prisoner may file a "protective" habeas
petition in federal court and ask the district court to stay
and abey the federal habeas proceeding until state remedies
are exhausted. 544 U.S. at 276-78; see also Pace v.
DiGuglielmo, 544 U.S. 408, 416-17 (2005); Ellison v.
Rogers, 484 F.3d 658, 662-63 (3d Cir. 2007); Crews
v. Horn, 360 F.3d 146 (3d Cir. 2004).
is no reason for this Court to stay this case instead of
dismissing it without prejudice. Because the trial court
reinstated the Petitioner's direct appeal rights nunc
pro tunc, AEDPA's limitations period has not started
to run. Jimenez v. Quarterman, 555 U.S. 113, 121
(2009) ("We hold that, where a state court grants a
criminal defendant the right to file an out-of-time direct
appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his
judgment is not yet 'final' for purposes of §
2244(d)(1)(A). In such a case, 'the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review' must
reflect the conclusion of the out-of-time direct appeal, or
the expiration of the time for seeking review of that
appeal.") Therefore, although the Court has the
discretion to issue a stay and abeyance in the appropriate
habeas case, the Petitioner has failed to demonstrate why his
case is one of those in which the Court should exercise that
the Petitioner's motion to appoint counsel (ECF No. 11),
he has no constitutional right to counsel in this habeas
proceeding, Pennsylvania v. Finley, 481 U.S. 551,
555 (1987), and, because this is a non-capital case, he has
no statutory right to counsel either. See 18 U.S.C.
§ 3599(a)(2). Whether to appoint counsel in this action
lies within the discretion of the Court (unless there is an
order for an evidentiary hearing, see Rule 8 of the Rules
Governing Section 2254 Cases), and there is no reason for the
Court to exercise that discretion at this time.
jurists of reason would not find it debatable whether this
case should be dismissed without prejudice. See Slack v.
McDaniel529 U.S. 473, 484 (2000). ...