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

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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
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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

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(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.

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