STIRES v. SMEAL et al
Filing
11
MEMORANDUM/ORDER THAT PETITIONER'S MOTION TO DEFER FILING OF THE REPORT AND RECOMMENDATION IS DISMISSED AS MOOT; PETITIONER'S REQUEST FOR AN EXTENSION OF TIME TO FILE OBJECTIONS TO THE REPORT AND RECOMMENDATION IS GRANTED NUNC PRO TUNC; AND WITHIN THIRTY DAYS OF THE DATE THIS ORDER IS FILED THE STATE SHALL FILE A RESPONSE, ETC.. SIGNED BY HONORABLE LOUIS H. POLLAK ON 3/25/10. 3/26/10 ENTERED AND COPIES MAILED, E-MAILED AND FAXED. COPY OF MEMO/ORDER TO PRO SE(lvj, )
U N IT E D STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA
S T A N L E Y ORLIN STIRES, P e t i t io n e r , v. P A U L K. SMEAL, et al., R e s p o n d e n ts . C IV IL ACTION N o . 09-1366
M E M O R A N D U M /O R D E R P e titio n e r Stanley Orlin Stires seeks habeas corpus relief under 28 U.S.C. § 2254. Petitioner challenges his state convictions for driving under the influence of alcohol and re sis tin g arrest, asserting that (1) his arrest was unlawful, (2) he was denied his co n stitutio n al right to counsel, (3) his pre-trial, trial, and appellate counsel were in e f fe c tiv e , (4) the prosecution committed misconduct, and (5) three state court judges a b u se d their discretion. On June 11, 2009, this court referred the petition to United States M a g is tra te Judge L. Felipe Restrepo for a Report and Recommendation ("R&R"). See D o c k e t No. 5. On June 29, 2009, Judge Restrepo issued an R&R (Docket No. 6) r e c o m m e n d in g that the petition be dismissed without prejudice for the failure to exhaust s ta te remedies. The next day, petitioner filed a Motion to Defer Filing of the Report and
1
R e c o m m e n d a tio n (Docket No. 7),1 and on July 31, 2009, petitioner filed objections to the R & R (Docket No. 9) and a contemporaneous motion to stay this action pending the ex h au stio n of his state remedies (Docket No. 10).2 T h e R&R recommends dismissing the petition without prejudice because "the [ P e n n sylv a n ia Court of] Common Pleas docket indicates and petitioner acknowledges in h is habeas petition that PCRA proceedings are currently pending." R&R at 5. Stires's P C R A petition currently remains before the state courts, but petitioner seeks a stay of this a c tio n instead of dismissal on the basis of his claim "that a Sentence Termination without re v e rs a l of fraudulently achieved convictions could occur in the State Courts." Objections at 2. In particular, Stires avers that "the reversal of one or another of [his] c o n v i c tio n s without a reversal of all convictions could result in the expiration of [his] s e n te n c e " before federal review would be possible. Mot. to Stay at 1-2. Petitioner's request for a stay traces to a 2005 decision of the Supreme Court c o n f irm in g that a stay of an unexhausted petition is appropriate "if the petitioner had good c a u se for his failure to exhaust, his unexhausted claims are potentially meritorious, and th e re is no indication that the petitioner engaged in intentionally dilatory litigation ta c tic s." Rhines v. Weber, 544 U.S. 269, 278 (2005). Rhines, however, only considered Given that this motion was filed after Judge Restrepo's R&R, it will be d ism iss e d as moot. P e titio n e r's objections include language which I construe as a request to e x te n d the time to file the objections. See Objections at 2 ¶ 5. So construed, the request w ill be granted nunc pro tunc. 2
2 1
m ix e d habeas petitions that is, petitions presenting both exhausted and unexhausted c laim s. Stires's petition, by contrast, appears to present no exhausted claims. See O 'S u lliv a n v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state c o u rts one full opportunity to resolve any constitutional issues by invoking one complete ro u n d of the State's established appellate review process."); R&R at 3 ("Petitioner a c k n o w le d g e s that he did not seek allowance of appeal in the Supreme Court of P e n n s ylv a n ia on direct appeal."). Nevertheless, in September 2009 after Judge R e stre p o issued his R&R in this case the Third Circuit concluded that a stay under R h in e s may be appropriate even when a petition presents solely unexhausted claims. See H e le v a v. Brooks, 581 F.3d 187 (3d Cir. 2009) (reversing the district court's decision that w h o lly unexhausted petitions could not be stayed and remanding for consideration of the R h in e s test). Stires's petition is thus not categorically excluded from the possibility of a s ta y pending exhaustion of petitioner's state-court remedies. B ec au se it is not immediately clear from the existing record before this court w h e th e r or not Stires is entitled to a stay as opposed to dismissal, it is, this 25th day of M a rc h , 2010, hereby ORDERED as follows: (1 ) Petitioner's Motion to Defer Filing of the Report and Recommendation ( D o c k e t No. 7) is DISMISSED AS MOOT; (2 ) Petitioner's request for an extension of time to file objections to the Report and R e c o m m e n d a tio n (Docket No. 9) is GRANTED nunc pro tunc; and
3
(3 ) Within thirty (30) days of the date this order is filed, the state shall file a re sp o n s e to the petition addressing the question of whether the petition should be stayed p e n d in g exhaustion of petitioner's state court remedies in light of Heleva v. Brooks, 581 F .3 d 187 (3d Cir. 2009). Petitioner may file a reply in support of his request for a stay no la te r than thirty (30) days after the state's response is filed.
B Y THE COURT: /s /L o u is H. Pollak P o l la k , J.
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?