United States District Court, W.D. Pennsylvania
KEVIN R. SHAY, Petitioner,
WARDEN GILMORE, THE DISTRICT ATTORNEY OF THE COUNTY OF ALLEGHENY, and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
S. Cercone District Judge.
ORDER STAYING CASE
Maureen P. Kelly United States Magistrate Judge.
R. Shay ("Petitioner") has filed a Petition Under
28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person
in State Custody (the "Petition"). ECF No. 5. In
the Petition, Petitioner attacks his conviction and/or
sentence which was obtained in the Court of Common Pleas of
Allegheny County. Commonwealth v. Shay.
CP-02-CR-0012705-2011 (CCP Allegheny County). We take
judicial notice of the dockets in Petitioner's criminal
case. Those dockets reveal that he has a
currently pending appeal in the Pennsylvania Superior Court
which was filed August 2019. Petitioner also concedes in the
Petition that he has such an appeal currently pending. ECF
No. 5 ¶ 12.d.
the existence of Petitioner's pending appeal in the
Superior Court, concerning the very conviction/sentence that
he sought to attack via the current Petition in this Court,
the Court issued an Order to Show Cause why this case should
not be stayed pending Petitioner's complete exhaustion of
his state court remedies. ECF No. 6. Petitioner has now filed
his Response to the Order to Show Cause (the
"Response"). ECF No. 7.
in the Response persuades the Court not to require that
Petitioner first exhaust his state court remedies and only
thereafter, come back to federal court to prosecute this
Petition. Wakefield v. Gilmore, CV 19-983, 2019 WL
6918395, at *3 (W.D. Pa. Oct. 8, 2019) ("Petitioner has
failed to carry his burden to allege facts, showing that he
exhausted his state court remedies with respect to this
Petition or that exhaustion should be excused due to
extraordinary circumstances."), report and
recommendation adopted, 2019 WL 6911633 (W.D. Pa. Dec.
19, 2019). Because Petitioner has a currently pending appeal
in the Superior Court, he has not exhausted his state court
remedies. Lovasz v. Vaughn, 134 F.3d 146, 148 (3d
Cir. 1998)("Nor should we discourage petitioners from
exhausting all their claims in state court, even by means of
a second or subsequent petition for post-conviction relief
where permissible under state law, before seeking habeas
review in federal court.")(emphasis added);
Richardson v. Miller, 716 F.Supp. 1246, 1266 (W.D.
Mo. 1989) ("Fay v. Noia, then explained that
the doctrine of exhaustion has always been based solely on
principles of comity and, as such, did no more than establish
a 'rule of timing' under which, as a matter of
comity, the State courts would be afforded the first
opportunity to consider a state prisoner's federal claims
before a federal court should exercise the habeas corpus
power and jurisdiction conferred on it by 28 U.S.C. §
2254(a).") (citations omitted). Nor has Petitioner
established any extraordinary circumstances so as to excuse
exhaustion. In fact, he seeks to rely on a state law case,
Le, Commonwealth v. Munjz, 164 A.3d 1189 (Pa. 2017)
to establish the alleged wrongfulness of his conviction. In
such a situation, it seems particularly appropriate to defer
any federal action until the state courts have themselves
determined the significance of a state court decision, if
any, for Petitioner's conviction.
because Petitioner has a currently pending appeal in the
Pennsylvania Superior Court concerning the very same
conviction/sentence that he seeks to attack herein, this case
is ORDERED to be STAYED. Upon complete exhaustion of his
state court remedies, Petitioner may reopen this case by
filing a Notice to the Court that the Superior Court has
decided his appeal and either that he did not file a Petition
for Allowance of Appeal in the Pennsylvania Supreme Court or
that he did. Petitioner is ordered to file his Notice to the
Court, no later than 45 days after the Pennsylvania Superior
Court has decided his appeal. Failure to file the Notice to
the Court in a timely manner could result in the dismissal of
the case for failure to prosecute.
accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1), and Rule 72.C.2 of the Local Rules of Court, the
parties are allowed fourteen (14) days from the date of this
Order to file an appeal to the District Judge which includes
the basis for objection to this Order. Any appeal is to be
submitted to the Clerk of Court, United States District
Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.
Failure to file a timely appeal will constitute a waiver of
any appellate rights.
 The dockets in Petitioner's
criminal case are available at:
(site last visited 12/26/2019).