Dick v. Beard et al

Filing 39

MEMORANDUM (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY J. DICK,
Petitioner,
v.
JOHN E. WETZEL, Secretary,
Pennsylvania Department of
Corrections; LOUIS S. FOLINO,
Superintendent of the State Correctional
Institution at Greene; and, MARIROSA
LAMAS, Superintendent of the State
Correctional Institution at Rockview,
Respondents

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Civ. No. 1:10-CV-00988
Hon. John E. Jones III

THIS IS A CAPITAL CASE

MEMORANDUM
November 29, 2012
Presently before the Court are two motions: (1) Petitioner Anthony Dick’s
motion for a stay of federal proceedings, (Doc. 33), and (2) Respondents’ motion
to dismiss the instant federal habeas corpus action without prejudice, (Doc. 23).
For the reasons that follow, the Court will deny Petitioner’s motion for a stay and
grant Respondents’ motion to dismiss.
I.

BACKGROUND
Petitioner is a state prisoner who was sentenced to death on August 23,

2007, following his plea-based convictions for first-degree murder and related

charges in the Court of Common Pleas, Columbia County, Pennsylvania.
Petitioner’s convictions and sentence were affirmed on August 18, 2009.
Commonwealth v. Dick, 978 A.2d 956 (Pa. 2009), reargument denied,
Commonwealth v. Dick, No. 548 CAP (Nov. 5, 2009). His timely petition for
certiorari review was denied on April 19, 2010. Dick v. Pennsylvania, — U.S. —,
130 S.Ct. 2098, 176 L.Ed.2d 731 (2010).
On May 7, 2010, Petitioner filed a motion for leave to proceed in forma
pauperis and for appointment of federal habeas corpus counsel. (Doc. 1.) The
Court granted the motion on July 6, 2010, granting in forma pauperis status to
Petitioner, appointing the Capital Habeas Corpus Units of the Federal Public
Defender Office for the Middle District of Pennsylvania and the Federal
Community Defender for the Eastern District of Pennsylvania (“FCDO”) to
represent Petitioner, and directing Petitioner to file his habeas petition by January
3, 2011. (Doc. 4.)
Prior to the date his federal habeas petition was due, on July 7, 2010,
Petitioner filed a pro se petition for post-conviction collateral relief under
Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§
9541-9546. See Commonwealth v. Dick, No. CP-19-CR-0000188-2006 (Columbia
C.P.), Criminal Docket Sheet, available at http://ujsportal.pacourts.us (last visited
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November 28, 2012). On July 29, 2010, the PCRA court appointed Ms. Claudia
Van Wyk, Esquire, of the FCDO to represent Petitioner in the PCRA proceedings
and directed the filing of an amended counseled PCRA petition.1 See id. That
amended counseled PCRA petition was filed on September 25, 2012. See id.
Also before his federal habeas petition was due, Petitioner requested eight
extensions of time in which to file his federal petition, (Docs. 5, 7, 9, 11, 14, 16,
18, 20), which were granted, (Docs. 6, 8, 10, 13, 15, 17, 19, 21), respectively.
On August 6, 2012, Respondents filed a motion to dismiss this action
without prejudice, arguing that Petitioner has not yet exhausted his state court
remedies and therefore this federal habeas action is premature. (Doc. 23.) They
also argue that a stay of these federal proceedings would be inappropriate in this
case where there is “plenty of time for [Petitioner] to file a federal habeas action if
the state proceedings are exhausted without him attaining the remedy he desires in
state court.” (Doc. 24 at 12.) After the motion to dismiss was fully briefed, on
October 17, 2012, Petitioner filed his habeas petition. (Doc. 32.) On that same
date, Petitioner filed a motion to stay these proceedings and hold them in abeyance

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On June 29, 2012, the Attorney General’s office filed a motion to appoint new counsel
for Petitioner in the PCRA court, seeking the removal of FCDO as counsel. See Commonwealth
v. Dick, No. CP-19-CR-0000188-2006, Criminal Docket Sheet. After hearing oral argument on
October 1, 2012, the PCRA court denied the Commonwealth’s motion to appoint new counsel
for Petitioner. See id.
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while he exhausts his first PCRA petition, as amended, filed in the Columbia
County Court of Common Pleas. (Doc. 33.) These motions have been fully
briefed and are ripe for disposition.
II.

DISCUSSION
A.

Statutory Framework

A district court is authorized to “entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a). A petition for writ of habeas
corpus is the exclusive federal remedy for a state prisoner challenging the very fact
or duration of his or her confinement. Preiser v. Rodriguez, 411 U.S. 475, 499, 93
S. Ct. 1827, 36 L.Ed.2d. 439 (1973).
A petitioner filing for relief under the federal Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), must generally comply with the
exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), before a federal court can
consider the merits of his habeas corpus petition. Pursuant to § 2254(b)(1)(A), the
petitioner must give the state courts an opportunity to review allegations of error
before seeking relief in federal court. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct.
1347, 158 L.Ed.2d 64 (2004). “An applicant shall not be deemed to have
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exhausted the remedies available in the court of the State, within the meaning of
this section, if he has the right under the law of the State to raise, by any available
procedure, the question presented.” 28 U.S.C. § 2254(c); see also Rose v. Lundy,
455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) (finding that before
a federal court can adjudicate claims under habeas corpus, interests of comity and
federalism dictate that the state courts must have the first opportunity to decide a
petitioner’s claims).
AEDPA also establishes a one-year statute of limitations for filing a federal
habeas corpus petition. 28 U.S.C. § 2244(d)(1); Wilson v. Beard, 426 F.3d 653,
659 (3d Cir. 2005). This one-year period runs from the date on which the
judgment became final by the conclusion of direct review or when the time for
seeking certiorari review expires. 28 U.S.C. § 2244(d)(1)(A); Clay v. United
States, 537 U.S. 522, 525, 123 S.Ct. 1072, 155 L.Ed.2d 88 (2003). The one-year
limitations period is tolled, however, while a properly filed application for state
post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d)(2); see
also Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).
Under Pennsylvania’s Post Conviction Relief Act, a petitioner must file for
PCRA relief within one year of the date the judgment becomes final. 42 Pa. Cons.
Stat. § 9545(b)(1). For purposes of the PCRA, a judgment becomes final at the
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conclusion of direct review, including discretionary review in the United States
Supreme Court, or at the expiration of time for seeking such review. Id. §
9545(b)(3).
B.

Dick’s Petition

Although courts have routinely entered stays to permit petitioners to exhaust
state post-conviction proceedings, the United States Supreme Court has recognized
that:
Stay and abeyance, if employed too frequently, has the potential to
undermine [AEDPA’s] purpose. Staying a federal habeas petition
frustrates AEDPA’s objective of encouraging finality by allowing a
petition to delay the resolution of the federal proceedings. It also
undermines AEDPA’s goal of streamlining federal habeas
proceedings by decreasing a petitioner’s incentive to exhaust all his
claims in state court prior to filing his federal petition.
Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005).
Accordingly, stays of federal habeas petitions pending the exhaustion of state
remedies are available only where: (1) the petitioner has shown good cause for
failing to exhaust his claims first in state court; (2) his unexhausted claims are
potentially meritorious; and (3) the petitioner has not engaged in intentionally
dilatory litigation tactics. Rhines, 544 U.S. at 277-78; Heleva v. Brooks, 581 F.3d
187, 190 (3d Cir. 2009) (permitting stays of AEDPA petitions presenting
unexhausted claims).
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Unlike Rhines and Heleva, in the case at bar, there is little concern that
declining to enter a stay in this matter will in any way prejudice Petitioner’s ability
to seek federal habeas relief. The statute of limitations on Petitioner’s federal and
state post-conviction proceedings began to run on April 19, 2010. On July 7, 2010,
Petitioner filed a pro se PCRA petition in the Columbia County Court of Common
Pleas. See Commonwealth v. Dick, No. CP-19-CR-0000188-2006, Criminal
Docket Sheet. An amended PCRA petition was filed by Petitioner’s appointed
counsel on September 25, 2012. See id. Thus, the filing of Petitioner’s PCRA
petition tolled AEDPA’s one-year limitation period. 28 U.S.C. § 2244(d)(2).
Therefore, once Petitioner exhausts his claims through the PCRA process, he will
have 286 days remaining on his one-year limitation period in which to file a timely
habeas petition. Because there is no real danger that failing to stay the proceedings
on Petitioner’s federal petition will result in his federal claims becoming time
barred,2 entering a stay in this matter is not warranted. See, e.g., Frey v. Beard,

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Petitioner’s argument that dismissing his habeas petition may subject him to changes in
the law if Pennsylvania qualifies as an “opt-in” state under AEDPA is unavailing, as
Pennsylvania has yet to be subject to such “opt-in” provisions. See Sherwood v. Beard, No.
1:10-CV-1073, 2011 WL 6888653, at *3 (M.D. Pa. Dec. 30, 2011) (rejecting argument that
Pennsylvania will qualify as an “opt-in” state where petitioner provides no supporting evidence
beyond speculation); (Doc. 38 at 3, Petitioner’s Reply to Brief in Opposition to Motion to Stay
and Abey Habeas Proceedings) (explaining that U.S. Department of Justice comment period for
implementing this regulation has closed, and the case reached final rule stage on March 3, 2012,
but no final regulation has yet been issued).
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No. 1:07-CV-00260, 2012 WL 5845548 (M.D. Pa. Nov. 19, 2012) (lifting a stay in
capital habeas proceeding when the petitioner would have 228 days to file a timely
federal habeas petition after exhausting his claims in state court); Housman v.
Wetzel, No. 1:11-CV-0167, 2012 WL 983551 (M.D. Pa. Mar. 22, 2012) (denying
stay of federal proceedings where 109 days remained to timely file a federal habeas
petition); Sherwood v. Beard, No. 1:10-CV-1073, 2011 WL 6888653 (M.D. Pa.
Dec. 30, 2011) (denying stay in capital case where petitioner had “ample time to
file a new habeas petition after exhausting his state claims”); Walter v. Beard, No.
1:09-CV-2465, 2011 WL 5593125 (M.D. Pa. Nov. 17, 2011) (refusing to grant a
stay in a capital habeas proceeding when the petitioner would have 256 days to file
a timely federal habeas petition after exhausting her claims in state court);
Cummings v. Beard, No. 09-CV-4033, 2011 WL 239794 (E.D. Pa. Jan. 25, 2011)
(concluding that where petitioner would have 248 days to file a timely federal
habeas petition a stay under Rhines or Heleva was not warranted). Further,
because Petitioner’s one-year statute of limitations to file a timely federal petition
has not run and is currently tolled, dismissal of the filed petition would not affect
Petitioner’s ability to re-file after exhausting his state court remedies. See
Sherwood, 2011 WL 6888653 (dismissing federal habeas petition without
prejudice as prematurely filed where state court had not had an opportunity to
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review petitioner’s claims).
III.

CONCLUSION
Because Petitioner is afforded ample time to return to this Court after he

exhausts his state collateral claims, he has failed to satisfy the good cause
requirement under Rhines. Finding that Petitioner has failed to show good cause
for the stay and abeyance as delineated in Rhines, his motion to stay federal
proceedings will be denied. Further, Respondents’ motion to dismiss this federal
habeas corpus action without prejudice will be granted, and Petitioner’s petition for
writ of habeas corpus will be dismissed without prejudice. A certificate of
appealability will be denied. An Order consistent with this Memorandum follows.

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