Kutenits v. Wetzel et al

Filing 5

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED THAT the petitioners motion to stay (Doc. 4.) is GRANTED and this case is STAYED pending further order of the Court. IT IS FURTHER ORDERED THAT within 30 days of the termination of thepetitioners related st ate-court PCRA proceedings, the petitioner shall file a written status report with the Court to inform the Court of the outcome of his state-court proceedings, and shall include a copy of the relevant state-court dispositions. Signed by Magistrate Judge Martin C. Carlson on July 2, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL KUTENITS,
Petitioner,
v.
JOHN WETZEL,
Respondent.

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Civil No. 1:13-CV-1682

(Chief Judge Kane)
(Magistrate Judge Carlson)

MEMORANDUM AND ORDER

State prisoners who turn to the federal courts seeking habeas corpus relief are
often called upon to chart a careful course between competing procedural shoals.
Prisoners who file prematurely may run afoul of one of the statutory prerequisites to
a state prisoner seeking habeas corpus relief in federal court, “exhaust[ion of] the
remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). Prisoners
who delay in filing may find that the one-year statute of limitations applicable to
habeas petitions under 28 U.S.C. § 2244, now bars their access to federal court.
Thus, prisoners often must endeavor to steer a course between the Scylla of § 2254's
exhaustion requirement and the Charybdis of the bar of the statute of limitations.
In these proceedings, each of the petitioners is an inmate in the custody of the
Pennsylvania Department of Corrections, and each is serving a sentence of life

imprisonment that was imposed after the petitioner was convicted of murder. Each
petitioner has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
arguing that his or her sentence of life imprisonment is unconstitutional under the
Eighth And Fourteenth Amendments to the United States Constitution, in light of the
United States Supreme Court’s holding in Miller v. Alabama, 567 U.S. ____, 132 S.
Ct. 2455 (2012). We are overseeing pre-trial management in each of these cases.
Each of the petitioners has moved the Court to stay and hold these proceedings
in abeyance pending the outcome of post-conviction applications brought pursuant
to Pennsylvania’s Post-Conviction Relief Act, 42 Pa. Cons. Stat. Ann. §§ 9541-9546
(PCRA), all of which are currently pending in Pennsylvania state courts. (Doc. 4.)
The petitioners seek to stay their federal proceedings while they complete the process
of exhausting their claims in state court, in order to guard against the possibility that
their federal habeas petitions could later be found to be untimely under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
The AEDPA imposes a one-year statute of limitations on applications for writs
of habeas corpus. Under 28 U.S.C. § 2244(d)(1)(A), the statute of limitations begins
to run from “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” At the same time, the
AEDPA obligates petitioners to exhaust their claims in state court before proceeding
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with a habeas corpus petition in federal court, but provides that the limitations period
is tolled during the pendency of a “properly filed” state post-conviction petition. 28
U.S.C. § 2244(d)(2).
When a petitioner files a petition which contains unexhausted claims, the court
has several courses available to it. First, the court can dismiss the petition without
prejudice, so that the petitioner can either return to state court and totally exhaust his
claims, or proceed in federal court on a petition which raises only wholly exhausted
issues. Rose v. Lundy, 455 U.S. 509 (1982). This total exhaustion approach
facilitates the important goals of federalism and comity that are essential to the
exhaustion rule, and allows for complete legal and factual development of these cases
in the state legal system before petitions are presented in federal court. However,
because strict compliance with this total exhaustion rule can create procedural
dilemmas for some petitioners who may be unable to fully exhaust state remedies on
petitions before the one-year statute of limitations prescribed for state habeas
petitions elapses, the courts have adopted another procedure which may be employed
in a limited number of cases, a “stay and abeyance” procedure in which the federal
habeas petition is stayed pending exhaustion of state remedies by the petitioner.
Rhines v. Weber, 544 U.S. 269 (2005). According to the Supreme Court:

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[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner's failure to
present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for
the petitioner's failure to exhaust his claims first in state court.
Moreover, even if a petitioner had good cause for that failure, the district
court would abuse its discretion if it were to grant him a stay when his
unexhausted claims are plainly meritless.
Rhines v. Weber, 544 U.S. at 277. Therefore, in order to qualify for a stay and
abeyance a petitioner should “satisf[y] the three requirements for a stay as laid out in
Rhines: good cause, potentially meritorious claims, and a lack of intentionally
dilatory litigation tactics.” Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir.2009).
As noted, each of these cases has been brought following the Supreme Court’s
decision in Miller, which was issued on June 25, 2012. In each instance, the
petitioners have moved to stay and hold in abeyance their federal habeas petitions in
order to guard against the possibility that Pennsylvania state courts hold that Miller
is not retroactively applicable, and, therefore, that the PCRA petitions were not
“properly filed” so as to toll the one-year limitations period.

See Pace v.

DiGuglielmo, 544 U.S. 408, 416-17 (2005) (holding that time limits are filing
conditions, and where state court rejected petitioner’s PCRA petition as untimely, it
was not “properly filed,” and, therefore, he was not entitled to statutory tolling of his
federal habeas petition under 28 U.S.C. § 2244(d)(2)).

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Furthermore, it is noteworthy that in each instance, the respondents have
concurred in the stay request. This concurrence reflects a recognition by state
authorities that the state courts should, in the first instance, have the opportunity to
address this issue as matter of state law. Adopting this course has merits on several
scores. First, it may make federal proceedings unnecessary. In any event, this course
will promote judicial economy if federal habeas corpus proceedings later prove
necessary once the application of Miller to these petitioners has been fully addressed
by the state courts.
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court held that a district
court may stay, in limited circumstances, enter an order staying and holding in
abeyance a petition for writ of habeas corpus, provided that there is good cause to do
so, that the petition raises potentially meritorious claims, and there is an absence of
intentionally dilatory litigation tactics. Id. at 278; see also Heleva v. Brooks, 581
F.3d 187, 192 (3d Cir. 2009). Upon consideration, we find that all three of these
considerations are satisfied, and that there is good cause to issue orders staying and
holding in abeyance each of these habeas proceedings while the petitioners complete
the process of exhausting their claims in Pennsylvania state courts. Furthermore, we
observe that in each of these cases, it appears that the respondents have concurred in
the requested relief. In addition, we note that this course of action has been expressly
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adopted by judges of this Court in other cases in which state prisoner petitioners have
recently filed claims based upon the Supreme Court’s decision in See, e.g., Tarselli
v. Folino, No. 4:CV-13-939, 2013 WL 2177769, at *3 (M.D. Pa. May 20,
2013)(Brann, J.) (granting a stay in the context of Miller exhaustion); accord Klinger
v. Walsh, et al., No. 4:CV-13-1537 (Rep’t & Rec., June 14, 2013, Blewitt, Magis. J.).
Finally, we note that, unlike a decision dismissing a petition as unexhausted,
“motions to stay litigation . . . , are non-dispositive motions under Rule 72(a). See,
e.g., Gonzalez v. GE Group Adm'rs, Inc., 321 F.Supp.2d 165, 166 (D.Mass.2004);
Torrance v. Aames Funding Corp., 242 F.Supp.2d 862, 865 (D.Or.2002); All Saint's
Brands, Inc. v. Brewery Group Den., A/S, 57 F.Supp.2d 825, 833 (D.Minn.1999);
Herko v. Metro. Life Ins. Co., 978 F.Supp. 141, 142 n. 1 (W.D.N.Y.1997).”
PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010). Therefore, the
decision to grant, deny or lift a stay rests within the jurisdiction and sound discretion
of a United States Magistrate Judge under 28 U.S.C. §636(b)(1)(A), subject to appeal
to the district court for an abuse of that discretion. Touton, S.A. v. M.V. Rizcun
Trader, 30 F. Supp. 2d 508, 510 (E.D. Pa. 1998)(“[T]he Court finds that neither the
grant of the stay of proceedings . . ., nor the lift of said stay, constituted ‘injunctive
relief’ in excess of the Magistrate Judge's authority under § 636(b)(1)(A).”).

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In this case, having found that the relevant factors enunciated in Rhines are
fully satisfied, further finding that the respondents concur in staying these cases, and
mindful that “when an outright dismissal could jeopardize the timeliness of a
collateral attack, a stay is the only appropriate course of action,” Crews v. Horn, 360
F.3d 146, 154 (3d Cir. 2004), we will grant the motions to stay these proceedings.
Accordingly, IT IS HEREBY ORDERED THAT the petitioner’s motion to stay
(Doc. 4.) is GRANTED and this case is STAYED pending further order of the Court.
IT IS FURTHER ORDERED THAT within 30 days of the termination of the
petitioner’s related state-court PCRA proceedings, the petitioner shall file a written
status report with the Court to inform the Court of the outcome of his state-court
proceedings, and shall include a copy of the relevant state-court dispositions.
So ordered this 2d day of July 2013.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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