Filing 10


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SKOCZALEK v. LAWLER et al Doc. 10 IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF PENNSYLVANIA H E N R Y SKOCZALEK v. R A Y M O N D LAWLER, et al. : : : M EM ORANDUM S e p te m b e r 15, 2010 P re s e n tly before the Court is a pro se petition for writ of habeas corpus (Docs. No. 1 , 4) filed pursuant to 28 U.S.C. 2254 by Henry Skoczalek ("Petitioner"), an individual c u rre n tly incarcerated at the State Correctional Institution at Huntingdon. Also before the C o u rt is Petitioner's unopposed motion for a stay (Doc. No. 1) of his habeas petition p e n d in g a resolution of his recently filed state PCRA petition. For the reasons that f o llo w , the stay will be granted and the habeas petition be held in abeyance pending e x h a u s tio n of state court remedies. F A C T S AND PROCEDURAL HISTORY On June 13, 2007, Petitioner entered a plea of not guilty to the charges of a g g ra v a te d assault and simple assault. On July 31, 2007, the Honorable Glenn B. B ro n so n of the Court of Common Pleas of Philadelphia County sentenced Petitioner to te n (10) to twenty (20) years of imprisonment. N o direct appeal was filed. On July 13, 2008, Petitioner filed a pro se petition u n d e r Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Con. Stat. 9451, et s e q ., alleging ineffective assistance of trial counsel. See Exhibit 1 to Petitioner's N o . 10-1703 C IV IL ACTION Memorandum of Law in Support of Writ of Habeas Corpus, at 2-7. On August 14, 2009, a hearing was held on Petitioner's PCRA petition and PCRA relief was denied. See P e titio n e r's Memorandum of Law in Support of Writ of Habeas Corpus, at 2. The P e n n sylv a n ia Superior Court dismissed Petitioner's appeal of the denial of PCRA relief o n March 17, 2010, for failure to file a brief. Id. at 2. On April 12, 2010, Petitioner filed a motion for a stay (Doc. No. 1) of his habeas p e titio n pending a resolution of his state PCRA petition. On April 16, 2010, Petitioner f ile d his second PCRA petition. See Petitioner's Memorandum of Law in Support of W rit of Habeas Corpus, at 3. Respondents herein filed a response on August 16, 2010, s ta tin g that they have no objection to Petitioner's motion to stay his petition for writ of h a b e a s corpus. (Doc. No. 9). D ISC U S S IO N A federal court, absent unusual circumstances, should not entertain a petition for w rit of habeas corpus unless the petitioner has first satisfied the exhaustion requirement o f 28 U.S.C. 2254. See 28 U.S.C. 2254(b). Under 2254(b), a petitioner will not be d e e m e d to have exhausted available state remedies if he had the right under the law of the s ta te to raise, by any available procedure, the question presented. O'Sullivan v. Boerckel, 5 2 6 U.S. 838 (1999) ("we ask not only whether a prisoner has exhausted his state re m e d ie s , but also whether he has properly exhausted those remedies, i.e., whether he has f a irly presented his claims to the state courts"); see also Picard v. Connor, 404 U.S. 270 2 (1971). The exhaustion requirement is rooted in considerations of comity and is designed to protect the role of the state court in the enforcement of federal law and to prevent d is ru p tio n of state judicial proceedings. Rose v. Lundy, 455 U.S. 509, 518 (1982); C a stille v. Peoples, 489 U.S. 346, 349 (1989). In order for a claim to be exhausted a p e titio n e r must present each claim in the habeas petition to every available level of state c o u rt review. Lambert v. Blackwell, 387 F.3d 210, 232 (3d Cir. 2004). The habeas c o rp u s petitioner has the burden of proving exhaustion of all available state remedies. Toulsen v. Beyer, 987 F.2d 984, 987 (3d Cir.1993). W h e n confronted with a "mixed petition" containing both exhausted and u n e x h a u ste d claims the Supreme Court has held that federal courts may "stay the petition a n d hold it in abeyance while the petitioner returns to state court to exhaust his previously u n e x h a u ste d claims." Rhines v. Weber, 544 U.S. 269, 274-275 (2005). The possibility of a stay eliminates the potential "risk of [petitioners] forever losing their opportunity for a n y federal review of their unexhausted claims." Id. at 275. The Third Circuit has held th a t the granting of a stay is proper "when an outright dismissal could jeopardize the tim e lin e s s of a collateral attack." Crews v. Horn, 360 F.3d 146, 154 (3d Cir. 2004). F u rth e r, the Supreme Court has stated that it would be "an abuse of discretion for a d is tric t court to deny a stay and to dismiss a mixed petition if the petitioner had good c a u s e for his failure to exhaust, his unexhausted claims are potentially meritorious, and th e re is no indication that the petitioner engaged in potentially dilatory tactics." Rhines, 3 544 U.S. at 278. A petitioner may file a "protective" petition meriting a stay even where only u n e x h a u ste d claims are at issue. Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir 2009). "Indeed a distinction between mixed and non-mixed petitions would make no sense in the c o n te x t of granting a stay to avoid penalizing a prisoner for reasonable confusion about s ta te court filing requirements." Id. at 191. In order to prevail, a petitioner must satisfy th e three requirements for a stay as laid out in Rhines: good cause, potentially meritorious c la im s , and a lack of intentionally dilatory litigation tactics. See Id.; Rhines, 544 U.S. at 278. In discussing "good cause" the Supreme Court has determined that a petitioner's re a s o n a b le confusion about whether a state filing would be timely will ordinarily c o n s titu te "good cause" for him to file in federal court. Pace v. DiGuglielmo, 544 U.S. 4 0 8 , 416-417 (2005). In the instant matter, Petitioner timely filed his initial PCRA p e titio n on July 13, 2008. Counsel was appointed and after a hearing held on August 14, 2 0 0 9 , PCRA relief was denied. An appeal was filed in the Superior Court of P e n n sylv a n ia . The Superior Court dismissed Petitioner's petition on March 17, 2010 for f a ilu re to file a brief. I conclude that as a result of counsel's failure to file a brief on P e titio n e r's behalf in Superior Court, there is a reasonable possibility that Petitioner will b e permitted to file an appeal of the denial of PCRA relief in the Pennsylvania Superior C o u rt nunc pro tunc, enabling Petitioner to exhaust his state court remedies. 4 The Supreme Court has determined, in discussing whether a petitioner's claims are p o te n tia lly meritorious, that the district court would abuse its discretion if it were to grant a stay when a petitioner's claims are "plainly meritless." Rhines, 544 U.S. at 277; see a ls o Mahoney v. Bostel, 366 Fed. Appx. 368, 370 (3d Cir. 2010). In the instant case, I do n o t find that Petitioner's claims will ultimately be found meritorious, however, I decline to find that his claims are "plainly meritless." Further, I note that respondents did not a s s e rt that Petitioner's claims are "plainly meritless." F in a lly, there is no indication that Petitioner is engaging in potentially dilatory ta c tic s . Rhines, 544 U.S. at 278. On the contrary, Petitioner appears to have been diligent in filing his various appeals. For the foregoing reasons, and in light of the fact that the District Attorney for P h ila d e lp h ia County has no objection, Petitioner's motion to stay his petition for writ of h a b e a s corpus will be granted, and the petition stayed pending resolution of Petitioner's c la im s presently under review in the Pennsylvania state courts. A n appropriate order follows. 5

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