HOLLMAN v. HORN et al

Filing 4

OPINION AND ORDER THAT UPON CONSIDERATION OF THE MOTION TO HOLD FEDERAL PROCEEDINGS IN ABEYANCE (DOC. NO. 2), IT IS ORDERED THAT PETITIONER'S MOTION IS GRANTED. THIS CIVIL ACTION IS STAYED PENDING DISPOSITION BY THE STATE COURTS OF PETITIONER� 39;S PENDING STATE POST-CONVICTION PETITION. THE CLERK SHALL PLACE THIS CASE IN CIVIL SUSPENSE AND MARK IT CLOSED FOR STATISTICAL PURPOSES. PETITIONER SHALL NOTIFY THIS COURT OF THE DISPOSITION OF THE ABOVE-MENTIONED STATE COURT PROCEEDINGS WITHIN 14 DAYS OF THE FINAL DISPOSITION OF THOSE PROCEEDINGS. SIGNED BY JUDGE LOUIS H. POLLAK ON 2/2/07. (Attachments: # 1 order) 2/6/07 ENTERED AND COPIES MAILED, E-MAILED.(gs)

HOLLMAN v. HORN et al

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I N THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA

C H E S T E R HOLLMAN, III, P e t i t io n e r , C iv il Action No. 06-3867 v. M A R T IN HORN, Commissioner, P e n n s ylv a n ia Department of Corrections; and CHARLES ERICKSON, Superintendent o f the State Correctional Institution at R e tre a t, R e s p o n d e n ts .

O P IN IO N F e b ru a ry 2, 2007, O n August 29, 2006, petitioner Chester Hollman, III filed a "mixed" 1 petition for a w rit of habeas corpus in this court (Docket #1) challenging the validity of his underlying c rim in a l conviction.2 On the same day, petitioner filed a Motion to Hold Federal

That is, his petition contains some claims that have been exhausted in state court, and some which have not. See Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (citing Rose v. Lundy, 455 U.S. 509 (1982)). "On May 4, 1993, a Common Pleas Court jury in Philadelphia convicted Hollman of second-degree murder, possession of an instrument of crime, robbery, and criminal conspiracy." Hollman v. Wilson, 158 F.3d 177, 178 (3d Cir. 1998) (affirming denial of previous habeas
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P r o c e e d i n g s in Abeyance (Docket #2), asking this court to place the case in suspense p e n d in g ongoing, parallel postconviction proceedings in Pennsylvania state court. Petitioner asserts that the unexhausted claims contained in his petition are based upon e v id e n c e which he did not discover, and could not have, through due diligence, d is c o v e re d , prior to August 30, 2005. For that reason, he claims that he has not had time to exhaust the process of state review as required by the Antiterrorism and Effective D e a th Penalty Act (AEDPA). See 28 U.S.C. § 2254(b)(1) (making exhaustion of state p o s tc o n v ic tio n remedies, in most cases, a condition precedent to the granting of federal h a b e as relief). Because the current state proceedings will not be complete within one year o f the date on which Hollman's federal petition could have been filed, see id. § 2 2 4 4 (d )(1 ) (general one-year limitation period for filing of federal habeas petitions), he re q u e sts that rather than dismissing his petition without prejudice, the court suspend his p e titio n -- p re se rv in g the original, timely filing date--while he seeks to prevail on, or, at le a s t, to exhaust, his currently unexhausted federal claims before the Pennsylvania courts. AEDPA's statutory tolling provision, see id. § 2244(d)(2), normally protects a p e titio n e r from the risk of having his federal limitation period lapse during pendency of a sta te petition, and therefore dismissal without prejudice, rather than a stay or civil s u s p e n se , is typically the appropriate disposition of a mixed petition.3 In this case,

petition). See, e.g., Harris v. Beard, 393 F. Supp. 2d 335, 340 (E.D. Pa. 2005) (finding, on facts presented, that "dismiss[al] without prejudice . . . achieves the best balance between . . . 2
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h o w e v e r, petitioner argues that his particular situation renders it unlikely that he will be e lig ib le for statutory tolling, so that a dismissal would run a substantial risk of unfairly d e p riv in g him of any subsequent opportunity to obtain relief in a federal forum. I agree. A Pennsylvania trial court ruled on September 22, 2006 that petitioner's P C R A petition based on the allegedly newly-discovered evidence is untimely4 -- a n d a s ta te petition dismissed as untimely is not a "properly filed" petition entitling the p e titio n e r to tolling of the federal limitation period under § 2244(d)(2). Satterfield v. J o h n so n , 434 F.3d 185, 191­92 (3d Cir.), cert. denied, 127 S. Ct. 198 (2006); Pace v. D iG u g lie lm o , 544 U.S. 408, 413 (2005). Although the state court's untimeliness ruling is m a k in g its way through the state appeal procedures, the uncertainty it engenders as to

AEDPA's exhaustion requirement and limitations period, on the one hand, and the habeas petitioner's interest in preserving federal review of his state conviction, on the other hand."). The Pennsylvania Post Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. § 9541, et seq., provides the framework for state collateral review of criminal convictions. Like its federal counterpart, the PCRA contains a time bar, see 42 Pa. Cons. Stat. § 9545(b)(1), and an exception to this time bar for newly-discovered evidence. See id. § 9545(b)(1)(ii). The question of timeliness under Pennsylvania state law was discussed by this court, on similar facts, in Green v. Folino: Generally, the [PCRA] requires that petitions be filed within one year of the date judgment becomes final. However, the statute includes an exception for [newlydiscovered evidence] . . . . This case implicates the exception . . . . the state court's timeliness evaluation will require a detailed factual inquiry into when, with the exercise of due diligence, he could have ascertained the existence of his claim. No. 03-674, 2006 WL 2092575, at *6 (E.D. Pa. July 26, 2006) (citations omitted) (concluding that petitioner had "`reasonable confusion' about whether his state filing will be deemed timely"). The court in Green, noting that "a petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute `good cause' for him to file in federal court," id. (citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)), granted the petitioner's motion to place his case in suspense. Id. 3
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s ta tu to ry tolling of petitioner's federal claim persuades me that there is a substantial lik e lih o o d that, if this petition is dismissed without prejudice, it will be time-barred by the tim e the state proceedings are exhausted and petitioner's claims are otherwise ripe for re v iew in this court.5 P r e c is e ly because this kind of situation can place even the diligent petitioner in a d ilem m a between abandoning his unexhausted claims in federal court in order to ensure f e d e ra l review of his exhausted claims, on the one hand, and pursuing exhaustion of his u n e x h a u ste d claims in state court at the risk of losing federal review as to all of his c la im s , on the other hand, the Third Circuit has mandated the application of a "stay and a b e ya n c e " procedure in these circumstances. Crews v. Horn, 360 F.3d 146, 154 & n.5 (3d C ir. 2004) ("[W]hen an outright dismissal could jeopardize the timeliness of a collateral a tta c k , a stay is the only appropriate course of action."). The Supreme Court has endorsed th is procedure, and has defined the "limited circumstances" in which it is a p p ro p ria te -- i.e ., where (1) "the petitioner had good cause for his failure to exhaust," (2) " h is unexhausted claims are potentially meritorious," and (3) "there is no indication that th e petitioner engaged in intentionally dilatory litigation tactics." Rhines v. Weber, 544 U .S . 269, 273, 278 (2005) (citing Crews) (noting that where these conditions are met, "it lik e l y would be an abuse of discretion for a district court to deny a stay and to dismiss a m ix e d petition"); see also Harris v. Beard, 393 F. Supp. 2d 335, 339 (E.D. Pa. 2005)

Without the benefit of statutory tolling, it would appear that petitioner's time limitation period lapsed, at the latest, on December 28, 2006. 4

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(a p p lyin g Rhines factors, but dismissing where state court petition was clearly timely and w o u ld thus entitle petitioner to tolling under § 2244(d)(2)). "A petitioner's reasonable confusion about whether a state filing would be timely w ill ordinarily constitute `good cause' for him to file in federal court." Pace v. D iG u g lie lm o , 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. 269). Petitioner p rese n ts colorable evidence that his unexhausted claim under Brady v. Maryland, 373 U .S . 83, (1963), is based on new information which was previously undiscoverable, and th e PCRA contains an exception allowing out-of-time petitions based on newlyd is c o v e re d evidence. See supra, note 4. Although he appears to have promptly, d ilig e n tly, and in good faith pursued this new claim in the state courts, the fact-intensive n a tu re of his claim and the fact that one Pennsylvania court has already denied his PCRA p e titio n as untimely indicate that he has a "reasonable confusion" about whether his state f ilin g will be deemed timely. I find that petitioner has good cause for his failure to e x h a u st state remedies before filing his petition with this court. P e titio n e r's newly-discovered evidence consists of an affidavit, dated August 30, 2 0 0 5 , which appears to be the recantation of a key prosecution witness from petitioner's trial. Petitioner claims that the attestations in the affidavit provide the foundation for a fe d era l constitutional claim under Brady, and that this information could not have, th ro u g h due diligence, been discovered before August 30, 2005.6 Although "[c]ourts

Petitioner states, and the affidavit supports, that his counsel had diligently contacted the witness several times since petitioner's conviction, but that she had not, until now, revealed the 5

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h a v e historically viewed recantation testimony with great suspicion." Landano v. Rafferty, 8 5 6 F.2d 569, 572 (3d Cir. 1988) (citing United States v. Kearney, 682 F.2d 214, 219 (D .C . Cir. 1982)), the purpose of this inquiry is not to evaluate the credibility or merits of p e titio n e r's new evidence. The affidavit is facially valid and signed under pains of p e rju ry, and the information therein, if true, may undermine the petitioner's conviction. This is sufficient to render petitioner's claims "potentially meritorious." Finally, as noted above, rather than engaging in delay, petitioner has diligently p u rs u e d state relief since discovery of this new information, while also filing a protective p e titio n in this court. Cf. Pace, 544 U.S. at 416. Therefore, because the petitioner is substantially at risk of falling into the kind of p roc ed u ral trap that, under Rhines and Crews, district courts are encouraged to help him a v o id , and because it appears that petitioner's unexhausted claims meet the requirements a n n o u n c ed in Rhines for applying the "stay-and-abeyance" procedure, his motion to place h is petition in abeyance will be granted in an order accompanying this opinion.

information which provides the foundation for petitioner's Brady claim. 6