STIRES v. SMEAL et al

Filing 20

MEMORANDUM/ORDER THAT PETITIONER'S MOTION FOR RECONSIDERATION IS DENIED. THE CLERK IS DIRECTED TO MAIL PETITIONER A COPY OF DOCKET NOS. 14 AND 19 TO PETITIONER ALONG WITH A COPY OF THIS MEMORANDUM/ORDER. THE PETITION FOR WRIT OF HABEAS CORPUS AN D PETITIONER'S MOTION TO STAY ACTION PENDING EXHAUSTION OF STATE REMEDIES ARE REMANDED TO U.S. MAGISTRATE L. FELIPE RESTREPO FOR A SUPPLEMENTAL REPORT AND RECOMMENDATION. SIGNED BY HONORABLE LOUIS H. POLLAK ON 8/9/10. 8/10/10 ENTERED AND COPIES MAILED TO PRO SE WITH #14 & #19 AND FAXED.(mbh, ).

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA STANLEY ORLIN STIRES, Petitioner, v. JON D. FISHER, et al., Respondents. CIVIL ACTION No. 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 pursuant to 28 U.S.C. § 2 2 5 4 . On June 29, 2009, United States Magistrate Judge Felipe L. Restrepo issued a R e p o rt and Recommendation ("R&R") (Dkt. No. 6) recommending that, in light of S tire s's still-pending State Post Conviction Relief Act ("PCRA") petition, the § 2254 p e titio n be dismissed without prejudice for failure to exhaust state court remedies. On J u ly 31, 2009, Stires filed objections to the R&R (Dkt. No. 9) and a Motion to Stay A c tio n Pending Exhaustion of State Remedies (Dkt. No. 10). On March 15, 2010, this c o u rt ordered (Dkt. No. 11) respondents to file a response addressing the question of w h e th e r or not Stires's motion should be stayed pursuant to the Third Circuit's opinion in H e le v a v. Brooks, 581 F.3d 187 (3d Cir. 2009). Respondents complied on May 28, 2010

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(D k t. No. 14),1 and on June 4, 2010, Stires filed a brief (Dkt. No. 15) with additional e v id e n c e in support of his motion to stay. In a memorandum dated June 30, 2010 (Dkt. No. 17), this court rejected Stires's th e o ry that he is entitled to a stay because his allegedly impending release would preclude h im from seeking post-exhaustion relief in federal court, but noted that Stires's June 4, 2 0 1 0 brief also included a claim that the state had unduly delayed ruling on his PCRA p e titio n . I therefore ordered respondents to file a further response addressing the q u e stio n s of whether (a) there has been an inordinate delay in processing Stires's petition, an d , if so, (b) whether petitioner should nevertheless be required to exhaust his state court rem ed ies. Respondents did so on July 28, 2010 (Dkt. No. 19).2 In his June 4, 2010 brief, Stires claims that he should be excused from having to e x h a u st his state court remedies because state-created delays and impediments preclude a v ia b le state remedy. See Reply at 4, 9. This argument is grounded in an exception to the g e n e ra l rule that a federal court "may not entertain a petition for a writ of habeas corpus Petitioner states that he never received a copy of this document, and it is not c le a r that respondents served their most recent submission on Stires. Accordingly, the C le rk will be directed to forward a copy of both of respondents' filings to petitioner, and h e n c ef o rth , respondents must take pains to insure that petitioner is served with copies of th e ir filings in this case. O n July 19, 2010, Stires filed a document captioned as a Motion for R e c o n sid e ra tio n of the June 30, 2010 memorandum/order (Dkt. No. 18). This motion will b e denied, because it does not actually challenge any of the determinations reached in this c o u rt's June 30, 2010 memorandum. However, the motion does include evidence re lev a n t to Stires's "inordinate delay" argument, which I consider for purposes of this m em o ra n d u m . -2 2 1

u n le ss the petitioner has first presented each of his claims to the state's highest tribunal." See Lee v. Stickman, 357 F.3d 338, 340 (3d Cir. 2004) (citations omitted). Because e x h a u stio n "is not a jurisdictional matter but a matter of comity," id. at 341 (citing Story v . Kindt, 26 F.3d 402, 405 (3d Cir. 1994)), "[f]ederal courts need not defer to the state ju d icia l process when there is no appropriate remedy at the state level or when the state p ro c e ss would frustrate the use of an available remedy," Story, 26 F.3d at 405; see also 28 U .S .C . § 2254(b)(1)(B). A state remedy may be rendered effectively unavailable by, a m o n g other things, "[i]nexcusable or inordinate delay by the state in processing claims f o r relief." Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986). When "such a delay h a s rendered the state remedy ineffective to protect the rights of the petitioner," the b u rd e n shifts to the state to demonstrate why exhaustion should still be required. Id. In Lee v. Stickman, 357 F.3d 338 (3d Cir. 2004), for example, the Third Circuit e x c u se d the exhaustion requirement on the ground of "inordinate delay" because the p e titio n e r had shown that, at the time he filed his federal petition, his PCRA petition "had b e e n before the Pennsylvania state courts for almost eight years with no resolution." 357 F .3 d at 343. Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986), meanwhile, presents the " s h o rte s t delay" ever held by the Third Circuit to be inordinate. Cristin v. Brennan, 281 F .3 d 404, 411 (3d Cir. 2002). In Wojtczak, the Court of Appeals found that a lack of any a c tiv ity on a PCRA petition for the first thirty-three months after it was filed constituted a n inordinate delay sufficient to obviate the exhaustion requirement. Wojtczak, 800 F.2d

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a t 354. In doing so, the Third Circuit rebuffed the argument that the petitioner was re sp o n s ib le for any delays because of "his inability to cooperate with his lawyers," instead h o ld in g that the delays were caused by "disinterest on the part of court appointed counsel a n d [by] a failure on the part of the court to require [counsel] to provide minimally e f f e c tiv e representation." Id. at 356. In Cristin v. Brennan, 281 F.3d 404 (3d Cir. 2002), b y contrast, the Third Circuit rejected a claim that a twenty-seventh month delay in re so lv in g a PCRA petition made relief in state court "effectively unavailable" under W o jtc za k . Id. at 404. In so holding, the Court of Appeals both declined to "further re d u c e the threshold" set by Wojtczak "of delay making state court processes ineffective" a n d noted that, unlike in Wojtczak, the state courts "were responsive to Cristin's case, had h e ld argument, and offered a hearing." Id. In this case, the Northampton County Common Pleas Court Docket shows that S tire s's judgment of sentence was affirmed by the Pennsylvania Superior Court on F e b ru a ry 25, 2008. See Common Pleas Ct. Dkt. No. CP-48-CR-556-2005 ("Comm. Pl. D k t." ), at 18. Stires filed his first PCRA petition roughly one month thereafter, on March 2 6 , 2008. Id. The petition was denied fifteen months later, on June 26, 2009. Id. at 27. In light of Cristin, this fifteen month interval does not constitute an inordinate delay, e s p e c ia lly since, during that time, the PCRA court held multiple hearings and, on at least o n e occasion, directed Stires's counsel to file an amended petition on his behalf. See id . at 18-27. Further, while Stires's appeal from the PCRA court's denial of his petition

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re m a in s pending before the Superior Court, any delay in ruling on Stires's appeal is due in su b sta n tial part to (1) Stires's motion to seek leave to appeal nunc pro tunc from the d e n ia l of his petition after he (or his counsel) failed to do so timely, see id. at 28-29, and (2 ) a dispute concerning the supplementation of the record on appeal, see id. at 32-35. The state courts promptly addressed both of these motions. Accordingly, the Superior C o u rt's delay in ruling also does not, as of this writing, demonstrate that state remedies a re effectively unavailable to petitioner. As Stires has not presented any further arguments in support of his request for a s ta y, this court would normally dismiss his federal petition without prejudice pending e x h a u stio n of his state court remedies. It appears, however, that Stires might be barred by the statute of limitations from refiling a federal petition if his current petition were d is m is s e d . Unless one of several rare circumstances applies, a § 2254 petition must be f ile d no later than one year after "the date on which the judgment became final by the c o n c lu s io n of direct review or the expiration of the time for seeking such review." 28 U .S .C . § 2244(d)(1)(A). That period is tolled for "[t]he time during which a properly f ile d application for State post-conviction or other collateral review with respect to the p e rtin e n t judgment or claim is pending," id. § 2244(d)(2), but, in this case, it is unclear w h e th e r Stires's petition remains properly filed before the state courts. After the PCRA co u rt denied the state petition on June 26, 2009, Stires did not immediately appeal. In fa ct, it seems that Stires did not file an appeal until after the PCRA court issued an order,

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d a ted September 14, 2009, granting Stires the right to appeal to the Superior Court nunc p r o tunc within thirty days. Common Pls. Dkt. 29. Stires's appeal was then filed on O c to b e r 16, 2009. See id. at 30. Assuming that this sequence of events resulted in Stires's appeal being improperly f ile d , the one-year statute of limitations in § 2244 may now have run, leaving Stires w ith o u t an opportunity to re-file a federal petition if the current petition were to be d is m is s e d . The parties have not yet addressed this issue, however, and Judge Restrepo ­ w h o s e R&R was issued before the PCRA court denied Stires's petition ­ has also had no o c c a sio n to consider the statute of limitations question. Accordingly, this court will re m a n d Stires's petition, and his motion for a stay, to Judge Restrepo for a supplemental R & R addressing (1) whether Stires's PCRA petition remains properly filed before the P e n n s ylv a n ia state courts, and (2) whether, if Stires's appeal to the Superior Court was n o t properly filed, his federal petition should be stayed instead of dismissed on statute of lim ita tio n s grounds. F o r these reasons, it is, this 6th day of August, 2010, hereby ORDERED as f o l lo w s : (1 ) Petitioner Stanley Orlin Stires's motion for reconsideration (Docket No. 18), is D E N IE D ; (2) The Clerk is directed to mail petitioner a copy of Docket Nos. 14 and 19 to p e titio n e r along with a copy of this Memorandum/Order; and

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(3 ) The Petition for Writ of Habeas Corpus (Docket No. 1) and petitioner's Motion to Stay Action Pending Exhaustion of State Remedies (Docket No. 10) are REMANDED to United States Magistrate Judge L. Felipe Restrepo for a supplemental Report and R e c o m m e n d a tio n addressing (1) whether petitioner's PCRA petition remains properly f ile d before the Pennsylvania state courts, and (2) whether, if Stires's appeal was not p ro p e rly filed, his federal petition should be stayed instead of dismissed on statute of lim ita tio n s grounds. B Y THE COURT: /s /L o u is H. Pollak P o l la k , J.

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