Bennett v. Commonwealth Of Pennsylvania et al

Filing 14

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 11/8/17. (rw)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRICE BENNETT,
Petitioner,
v.
COMMONWEALTH OF
PENNSYLVANIA, et al.,
Respondents

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No. 1:17-CV-01202
(Judge Kane)

MEMORANDUM
On July 10, 2017, Brice Bennett, an inmate confined at the State Correctional Institution
at Mahanoy, Pennsylvania, filed the instant petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Doc. No. 1.) On July 20, 2017, Petitioner filed an application seeking leave to
proceed in forma pauperis. (Doc. No. 4.) Named as Respondents are the Commonwealth of
Pennsylvania and the Pennsylvania State Attorney General.1
On August 9, 2017, in accordance with United States v. Miller, 197 F.3d 644 (3d Cir.
1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued a formal notice to
Petitioner that he either could have his petition ruled on as filed, or withdraw his petition and file
one all-inclusive § 2254 petition within the one-year statutory period prescribed by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). (Doc. No. 7.) The Order further
advised Petitioner that if he did not return his notice of election within forty-five (45) days, the
Court would proceed to rule on the petition as filed. (Id.)
Petitioner did not return his notice of election, and therefore, the Court issued an Order to
Show Cause upon Respondent on October 5, 2017. (Doc. No. 8.) On October 25, 2017,
1

The Court notes that Petitioner has named improper Respondents. The proper Respondent is
the Warden at SCI-Mahanoy. See 28 U.S.C. §§ 2242 and 2243. See also Nunez v. Lindsay, No.
3:CV-07-0051, 2007 WL 706245, at *1 n.1 (M.D. Pa. Feb. 12, 2007) (“The proper Respondent
in a petition for writ of habeas corpus is the official having custody of the applicant.”).

Respondent filed a response to the petition, asserting that this matter should be stayed pending
the disposition of Petitioner’s PCRA petition currently pending before the Pennsylvania Superior
Court. (Doc. No. 12.) Based upon the petition, Respondent’s response, and accompanying
exhibits, the Court will dismiss the petition without prejudice to Petitioner refiling a habeas
petition once he has exhausted his state court remedies.
I.

BACKGROUND
In his petition, Bennett appears to challenge the gradation of a 2013 conviction in the

York County Common Pleas for Retail Theft, categorized as a Felony in the Third Degree.
(Doc. No. 1.) He provides that he was convicted on July 12, 2013 and sentenced on October 30,
2013 to one-and-a-half to three years’ imprisonment. (Id.) On December 16, 2013, Petitioner
filed a direct appeal to the Superior Court. Commonwealth v. Bennett, 2231 MDA 2013 (Pa.
Super. Ct. 2014). The two issues raised in Petitioner’s direct appeal challenged the sufficiency
of the evidence for retail theft and the weight of the evidence. Id. The Superior Court affirmed
the York County Court of Common Pleas sentence on September 16, 2014. (Id.) Petitioner then
filed a petition for allowance of appeal with the Pennsylvania Supreme Court on October 9,
2014, which was denied on April 17, 2015. Commonwealth v. Bennett, 732 MAL 2014 (Pa.
2015); see Commonwealth v. Bennett, CP-67-CR-822-2013.
Petitioner then filed a timely PCRA petition on April 23, 2015, which he subsequently
amended on June 29, 2015. (Id.) Petitioner provides that his PCRA petition raises the issue that
the gradation of his retail theft charge is incorrect. (Doc. No. 1.) The York County Court of
Common Pleas denied Petitioner’s PCRA petition on January 30, 2017, and Petitioner filed a
notice of appeal to the Superior Court on February 1, 2017. Commonwealth v. Bennett, CP-67-

CR-822-2013; see Commonwealth v. Bennett, 244 MDA 2017 (Pa. Super. Ct. 2017).
Petitioner’s PCRA petition is currently pending before the Pennsylvania Superior Court.
On October 25, 2017, Respondent filed a response to the Show Cause Order, providing
that the sole issue raised by Petitioner in his current habeas petition is a challenge to the
gradation of his retail theft charge, an issue that was only raised during Petitioner’s PCRA
hearing. (Doc. No. 12 at 3.) Furthermore, Respondent argues that because the state courts have
not yet had an opportunity to address the merits of Petitioner’s claim, his current habeas petition
should be stayed until he has exhausted his state court remedies. (Id.)
II.

DISCUSSION
Based upon the petition, and Respondent’s response and accompanying exhibits, it is

apparent that Petitioner has not exhausted his remedies in state court. Federal habeas relief is
only available where state remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(c); Rose v.
Lundy, 455 U.S. 509, 515-20 (1982). Absent exceptional circumstances, a habeas petition is not
cognizable until the petitioner has exhausted all means of relief under state law. 28 U.S.C. §
2254(b)(1)(A). A petitioner “shall not be deemed to have exhausted the remedies available … if
he has the right under the law of the State to raise, by any procedure, the question presented.” 28
U.S.C. § 2254(c). The exhaustion doctrine is rooted in the tradition of comity, and the state must
be given the “initial opportunity to pass upon and correct alleged violations of its prisoners’
[constitutional] rights.” Alston v. Diguglielmo, No. 07-CV-2618, 2009 WL 2096214 (E.D. Pa.
July 14, 2009) (quoting case omitted).
“A state prisoner is generally barred from obtaining federal habeas relief unless the
prisoner has properly presented his or her claims through one ‘complete round of the State’s
established appellate review process.’” Woodford v. Nqo, 548 U.S. 81, 92 (2006) (internal

citations omitted); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (providing that
exhaustion does not require state prisoners to invoke extraordinary remedies, the state courts
must be afforded one full opportunity to resolve any constitutional issues via completion of the
State’s established appellate review process). Fair presentation requires that the “substantial
equivalent” of both the legal theory and the facts supporting the federal claim are submitted to
the state courts, and the same method of legal analysis applied in the federal courts must be
available to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1230 (3d Cir.
1992). The exhaustion requirement is satisfied if the petitioner’s claims are presented through a
collateral proceeding, such as a petition under the PCRA, and it is not necessary to present
federal claims to state courts both on direct appeal and in a PCRA proceeding. Id.
Here, Petitioner has not shown that he has satisfied the exhaustion requirement. While
Petitioner has exhausted his direct appeals, the only two issues raised were the sufficiency of the
evidence and the weight of the evidence. See Commonwealth v. Bennett, 2231 MDA 2013 (Pa.
Super. Ct. 2014). In Petitioner’s instant habeas petition, he raises neither the sufficiency of the
evidence nor the weight of the evidence. Rather, Petitioner raises the argument that the
gradation of his retail theft charge is incorrect, an issue that is currently pending before the
Pennsylvania Superior Court. Petitioner’s habeas claim challenging the gradation of his retail
theft charge is therefore unexhausted.
The Court further finds that because Petitioner’s AEDPA statute of limitations has been
tolled while his instant claim is pending with the Pennsylvania Superior Court, the “stay and
abeyance” approach does not need to be utilized. See Roth v. Reitz, Civ. No. 3:CV-11-2085,
2012 WL 359976, at *4 (M.D. Pa. Jan. 9, 2012), report and recommendation adopted, Roth v.
Reitz, Civ. No. 1:11-CV-2085, 2012 WL 359918 (M.D. Pa. Feb. 2, 2012). Petitioner’s statute of

limitations will be tolled while he has a properly filed appeal pending with the state courts. See
Rhines v. Weber, 544 U.S. 269 (2005); 28 U.S.C. § 2244(d)(2) (any time devoted to pursuing a
properly filed application for state post-conviction relief or other collateral relief is excluded
from the limitations period); Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003).
The United States Supreme Court expressed the following concerns with the “stay and
abeyance” approach:
if employed too frequently, [it] has the potential to undermine the
[] twin purposes [behind the statute of limitations and the
exhaustion doctrine]. Staying a federal habeas petition frustrates
AEDPA’s objective of encouraging finality by allowing a
petitioner 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 of
his claims in state court prior to filing his federal petition.
Rhines, 544 U.S. 269, 277 (2005). Accordingly, the Supreme Court emphasized that a “stay and
abeyance” should be available only in “limited circumstances” “where the district court has
determined that there was good cause for the petitioner’s failure to exhaust his claims first in the
state court, and that the claims sought to be exhausted are not ‘plainly meritless.’” Myers v.
Warden of SCI-Albion, Civ. No. 4:08-CV-0100, 2010 WL 1838178, at *5 (M.D. Pa. May 6,
2010) (citing Rhines, 544 U.S. at 277)).
Since Petitioner presently has a collateral appeal pending with the Pennsylvania Superior
Court regarding the denial of his PCRA Petition, the Court will dismiss his habeas petition
without prejudice to the re-filing of a habeas petition after Petitioner has properly exhausted his
state court remedies with respect to his gradation claim.
III.

CONCLUSION
Based upon the foregoing, Petitioner’s petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254 will be dismissed without prejudice. An appropriate Order follows.