United States District Court, M.D. Pennsylvania
10, 2017, Brice Bennett, an inmate confined at the State
Correctional Institution at Mahanoy, Pennsylvania, filed the
instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. No. 1.) On July 20, 2017,
Petitioner filed an application seeking leave to proceed
in forma pauperis. (Doc. No. 4.) Named as
Respondents are the Commonwealth of Pennsylvania and the
Pennsylvania State Attorney General.
August 9, 2017, in accordance with United States v.
Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued a
formal notice to Petitioner that he either could have his
petition ruled on as filed, or withdraw his petition and file
one all-inclusive § 2254 petition within the one-year
statutory period prescribed by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). (Doc. No.
7.) The Order further advised Petitioner that if he did not
return his notice of election within forty-five (45) days,
the Court would proceed to rule on the petition as filed.
did not return his notice of election, and therefore, the
Court issued an Order to Show Cause upon Respondent on
October 5, 2017. (Doc. No. 8.) On October 25, 2017,
Respondent filed a response to the petition, asserting that
this matter should be stayed pending the disposition of
Petitioner's PCRA petition currently pending before the
Pennsylvania Superior Court. (Doc. No. 12.) Based upon the
petition, Respondent's response, and accompanying
exhibits, the Court will dismiss the petition without
prejudice to Petitioner refiling a habeas petition once he
has exhausted his state court remedies.
petition, Bennett appears to challenge the gradation of a
2013 conviction in the York County Common Pleas for Retail
Theft, categorized as a Felony in the Third Degree. (Doc. No.
1.) He provides that he was convicted on July 12, 2013 and
sentenced on October 30, 2013 to one-and-a-half to three
years' imprisonment. (Id.) On December 16, 2013,
Petitioner filed a direct appeal to the Superior Court.
Commonwealth v. Bennett, 2231 MDA 2013 (Pa. Super.
Ct. 2014). The two issues raised in Petitioner's direct
appeal challenged the sufficiency of the evidence for retail
theft and the weight of the evidence. Id. The
Superior Court affirmed the York County Court of Common Pleas
sentence on September 16, 2014. (Id.) Petitioner
then filed a petition for allowance of appeal with the
Pennsylvania Supreme Court on October 9, 2014, which was
denied on April 17, 2015. Commonwealth v. Bennett,
732 MAL 2014 (Pa. 2015); see Commonwealth v.
then filed a timely PCRA petition on April 23, 2015, which he
subsequently amended on June 29, 2015. (Id.)
Petitioner provides that his PCRA petition raises the issue
that the gradation of his retail theft charge is incorrect.
(Doc. No. 1.) The York County Court of Common Pleas denied
Petitioner's PCRA petition on January 30, 2017, and
Petitioner filed a notice of appeal to the Superior Court on
February 1, 2017. Commonwealth v. Bennett, CP-67-
CR-822-2013; see Commonwealth v. Bennett, 244 MDA
2017 (Pa. Super. Ct. 2017). Petitioner's PCRA petition is
currently pending before the Pennsylvania Superior Court.
October 25, 2017, Respondent filed a response to the Show
Cause Order, providing that the sole issue raised by
Petitioner in his current habeas petition is a challenge to
the gradation of his retail theft charge, an issue that was
only raised during Petitioner's PCRA hearing. (Doc. No.
12 at 3.) Furthermore, Respondent argues that because the
state courts have not yet had an opportunity to address the
merits of Petitioner's claim, his current habeas petition
should be stayed until he has exhausted his state court
upon the petition, and Respondent's response and
accompanying exhibits, it is apparent that Petitioner has not
exhausted his remedies in state court. Federal habeas relief
is only available where state remedies have been exhausted.
28 U.S.C. § 2254(b)(1)(c); Rose v. Lundy, 455
U.S. 509, 515-20 (1982). Absent exceptional circumstances, a
habeas petition is not cognizable until the petitioner has
exhausted all means of relief under state law. 28 U.S.C.
§ 2254(b)(1)(A). A petitioner “shall not be deemed
to have exhausted the remedies available … if he has
the right under the law of the State to raise, by any
procedure, the question presented.” 28 U.S.C. §
2254(c). The exhaustion doctrine is rooted in the tradition
of comity, and the state must be given the “initial
opportunity to pass upon and correct alleged violations of
its prisoners' [constitutional] rights.” Alston
v. Diguglielmo, No. 07-CV-2618, 2009 WL 2096214 (E.D.
Pa. July 14, 2009) (quoting case omitted).
state prisoner is generally barred from obtaining federal
habeas relief unless the prisoner has properly presented his
or her claims through one ‘complete round of the
State's established appellate review process.'”
Woodford v. Nqo, 548 U.S. 81, 92 (2006) (internal
citations omitted); O'Sullivan v. Boerckel, 526
U.S. 838, 844-45 (1999) (providing that exhaustion does not
require state prisoners to invoke extraordinary remedies, the
state courts must be afforded one full opportunity to resolve
any constitutional issues via completion of the State's
established appellate review process). Fair presentation
requires that the “substantial equivalent” of
both the legal theory and the facts supporting the federal
claim are submitted to the state courts, and the same method
of legal analysis applied in the federal courts must be
available to the state courts. Evans v. Court of Common
Pleas, 959 F.2d 1227, 1230 (3d Cir. 1992). The
exhaustion requirement is satisfied if the petitioner's
claims are presented through a collateral proceeding, such as
a petition under the PCRA, and it is not necessary to present
federal claims to state courts both on direct appeal and in a
PCRA proceeding. Id.
Petitioner has not shown that he has satisfied the exhaustion
requirement. While Petitioner has exhausted his direct
appeals, the only two issues raised were the sufficiency of
the evidence and the weight of the evidence. See
Commonwealth v. Bennett, 2231 MDA 2013 (Pa. Super. Ct.
2014). In Petitioner's instant habeas petition, he raises
neither the sufficiency of the evidence nor the weight of the
evidence. Rather, Petitioner raises the argument that the
gradation of his retail theft charge is incorrect, an issue
that is currently pending before the Pennsylvania Superior
Court. Petitioner's habeas claim challenging the
gradation of his retail theft charge is therefore
Court further finds that because Petitioner's AEDPA
statute of limitations has been tolled while his instant
claim is pending with the Pennsylvania Superior Court, the
“stay and abeyance” approach does not need to be
utilized. See Roth v. Reitz, Civ. No. 3:CV-11-2085,
2012 WL 359976, at *4 (M.D. Pa. Jan. 9, 2012), report and
recommendation adopted, Roth v. Reitz, Civ. No.
1:11-CV-2085, 2012 WL 359918 (M.D. Pa. Feb. 2, 2012).
Petitioner's statute of limitations will be tolled while
he has a properly filed appeal pending with the state courts.
See Rhines v. Weber, 544 U.S. 269 (2005);
28 U.S.C. § 2244(d)(2) (any time devoted to pursuing a
properly filed application for state post-conviction relief
or other collateral relief is excluded from the limitations
period); Merritt v. Blaine, 326 F.3d 157 (3d Cir.
United States Supreme Court expressed the following concerns
with the ...