SPENCE v. RENN et al

Filing 20

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LEVAR LEE ANTHONY SPENCE, :
Petitioner,
:
:
v.
:
:
RICHARD K. RENN, et al.,
:
Respondents.
:

1:17-cv-0881
Hon. John E. Jones III

MEMORANDUM
May 22, 2017
On October 31, 2016, Levar Lee Anthony Spence (“Spence”) initiated this
action in the United States District Court for the Eastern District of Pennsylvania
with the filing of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Doc. 1). He filed an Amended Petition, as instructed, on February 2, 2017. (Doc.
9). Spence is challenging a Court of Common Pleas of York County conviction
and sentence in criminal matter CP-67-CR-2201-2015.
On March 6, 2017, the Eastern District transferred the matter to this district
as “the district within which the State court was held which convicted and
sentenced him.” (Doc. 13, citing [2]8 U.S.C. § 2241(d); 28 U.S.C. § 1404(a); Doc.
16). It was received in this Court on May 18, 2017. (Doc. 18). Preliminary
review of the amended petition reveals that it is appropriate to enter an order
staying the matter pending exhaustion of state court remedies and to
administratively close the case.

I.

BACKGROUND
The following background is pertinent:
On January 14, 2016, Spence was convicted of the offenses of
possession with intent to deliver and possession of marijuana. See
Commonwealth v. Spence, CP-67-CR-3301-2015, Crim. Dkt. at 3. On
March 1, 2016, he was sentenced to an aggregate term of three to
eight years imprisonment. See id. Although Spence contends he
appealed, see Revised Hab. Pet. at 27-35, the docket does not show
any appeal was filed. See Crim. Dkt. at 6. It only shows that Spence
filed correspondence after the appeal period expired. See id. Spence
also has not filed a petition for collateral relief pursuant to
Pennsylvania’s Post Conviction Relief Act, 42 PA. C.S. § 9541 et seq.
(“PCRA”), though it appears that the statute of limitations period for
such a petition has not yet expired.

Spence v. McGinley, No. CV 16-5710, 2017 WL 907605, at *1 (E.D. Pa. Feb. 14,
2017), report and recommendation adopted, No. CV 16-5710, 2017 WL 902865
(E.D. Pa. Mar. 6, 2017) (footnotes omitted).
“Spence’s conviction became final on March 31, 2016, thirty days after his
judgment of sentence was entered. See 42 Pa. C.S. § 9545 (judgment becomes final
at the expiration of time for seeking direct review). He has one year from that date
to file a PCRA petition in the Pennsylvania state courts. See id. (PCRA petition
must be filed within one year of the date a judgment becomes final).” Id. at *2 n.2.
Spence “filed a request for a stay and abeyance based on allegations that he
is still litigating his case in the Pennsylvania Supreme Court. See 11/21/2016
Letter (doc. 2).” Id. at *1. Specifically, he is challenging the Supreme Court’s
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determination that his habeas corpus has been closed for failure to perfect. (Doc.
4, p. 2).
II.

DISCUSSION
A habeas petition may be brought in federal court by a prisoner who seeks to

challenge either the fact or duration of his confinement. Preiser v. Rodriguez, 411
U.S. 45, 494 (1973). The United States Supreme Court has held that, “in limited
circumstances,” “it is appropriate to stay and abey the federal habeas proceedings
while the petitioner exhausts his unexhausted claims in state courts.” Rhines v.
Weber, 544 U.S. 269, 277–278 (2005). A key pre-requisite to the granting of a
stay under the standard of Rhines is that there be a real danger that the petitioner
would, after dismissal without prejudice of the federal habeas action, be timebarred upon his return to federal court after the state proceedings are no longer
pending. A stay is an “appropriate course of action where an outright dismissal
could jeopardize the timeliness of a collateral attack.” Crews v. Horn, 360 F.3d 146
(3d Cir.2004).
It is recognized that the state court dockets do not reveal pending state court
proceedings, direct appeal or collateral, and it is certainly possible that, based on
the above depiction of the state court proceedings, and this Court’s independent
review of relevant state court dockets, that the petition is presently untimely.
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However, we feel that it is prudent to stay this matter and hold the petition in
abeyance so as to afford Spence the opportunity to complete his inquiry into the
Supreme Court’s decision to close his habeas matter based on failure to perfect.
(Doc. 4, p. 2).
An appropriate order will enter.

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