May v. Wetzel et al

Filing 22

MEMORANDUM (Order to follow as separate docket entry) re 20 MOTION to Stay filed by District Attorney of Lebanon County, PA Signed by Honorable Malachy E Mannion on 1/30/14. (bs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
FREEMAN MAY,

:

Petitioner

: CIVIL ACTION NO. 3:12-2572

v.

:

JOHN E. WETZEL, Secretary
Designee, Pennsylvania
Department of Corrections;
LOUIS FOLINO, Superintendent
of the State Correctional
Institution at Greene; and
MARIROSA LAMAS,
Superintendent of the State
Correctional Institution at
Rockview,

(MANNION, J.)

:
: (THIS IS A CAPITAL CASE)
:
:
:
:

Respondents
:
MEMORANDUM
Before the court is a motion to stay these federal proceedings, filed by
Respondent John E. Wetzel, et.al., and concurred in by Petitioner Freeman
May, a convicted Pennsylvania state prisoner. (Doc. No. 20.) For the reasons
that follow, the motion to stay (Doc. No. 20) will be denied, the federal stay of
execution (Doc. No. 8) will be lifted, on February 28, 20141, and the matter will
be dismissed without prejudice to re-filing once the Petitioner has properly
exhausted his state court remedies.

1

The court will leave the existing federal stay in place until February 28,
2014, in order to allow the Petitioner sufficient time to move for a stay of
execution in the Pennsylvania PCRA court in which his case is currently
pending, in case he has not yet done so.

I.

Background
Petitioner was first convicted and sentenced to death in March 1991 in

the Court of Common Pleas of Lebanon County, Pennsylvania. On direct
appeal, the Pennsylvania Supreme Court affirmed the conviction but vacated
the death sentence and remanded it for a new sentencing trial.
Commonwealth v. May, 656 A.2d 1335 (Pa. 1995). Following a second
sentencing trial in December 1995, Petitioner was again sentenced to death.
Commonwealth v. May, 710 A.2d 44 (Pa. 1998). The Pennsylvania Supreme
Court affirmed the sentence on direct appeal. Id. Petitioner then sought relief
under Pennsylvania’s Post Conviction Relief Act (“PCRA”), see 42 Pa. Cons.
Stat. Ann. §§9541 et seq. In May 2006, the Pennsylvania Supreme Court
affirmed his conviction, but vacated Petitioner’s sentence and ordered a third
sentencing trial. Commonwealth v. May, 889 A.2d 559 (Pa. 2006). In October
2008, Petitioner was again sentenced to death in the Lebanon County Court.
Commonwealth v. May, 31 A.3d 668 (Pa. 2011). On November 23, 2011, the
Pennsylvania Supreme Court affirmed Petitioner’s sentence. Id. Petitioner’s
timely petition for certiorari review was denied on October 1, 2012. May v.
Pennsylvania, 133 S. Ct. 190 (2012).
On December 20, 2012, Petitioner filed in this court a motion for leave
to proceed in forma pauperis and for appointment of federal habeas corpus
counsel. (Doc. No. 1.) On January 3, 2013, the court granted the motion,
(Doc. No. 3), and issued a scheduling order directing Petitioner to file a

2

petition for habeas corpus relief on or before July 1, 2013, (Doc. No. 2).2 By
order dated January 23, 2013, Petitioner’s motion for a stay of execution was
granted. (Doc. No. 8.)
Before his habeas petition was due, Petitioner requested two extensions
of time in which to file the petition, (Doc. Nos. 9, 14), which were granted,
(Doc. Nos. 10, 16), respectively. Thereafter, Petitioner filed his habeas
petition on September 13, 2013. (Doc. No. 17.) On that same date, Petitioner
requested an extension of time in which to file his memorandum of law in
support of his habeas petition. (Doc. No. 18.) By order dated September 13,
2013, the court granted that motion. The supporting memorandum was due
on or before November 12, 2013. (Doc. No. 19.)
On October 16, 2013, Respondent filed the instant motion to stay the
federal proceedings in order to permit Petitioner to properly exhaust his state
court remedies. (Doc. No. 20.) In this motion, Respondent informs the court
that Petitioner is also the subject of a new PCRA petition timely filed in state
court on or about August 19, 2013. (Id.) On September 25, 2013, the state
trial court provided Petitioner with sixty (60) days from that date to file an
amended PCRA petition. (Id.)
On November 8, 2013, counsel for the Petitioner filed a status report,
(Doc. No. 21), with the court. In this report, counsel indicated its concurrence
2

This case was originally assigned to the Honorable Robert D. Mariani.
By verbal order issued on January 7, 2013, the case was reassigned to the
undersigned.
3

in the Respondent’s motion to stay and indicated that, in light of the motion
to stay, it did not intend to file its memorandum of law in support of its habeas
petition on November 12, 2013, as previously ordered unless otherwise
directed to do so by the court.
Based on Respondent’s representation that his case has yet to proceed
beyond the State PCRA court, the court will address here not only
Respondent’s motion for a stay of proceedings, but also revisit the need for
a federal stay of execution. For the reasons that follow, the court will deny the
motion to stay these proceedings, will lift the previously imposed federal stay
of execution, and dismiss the habeas petition without prejudice.

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 (1973).
A petitioner filing for relief under the federal Antiterrorism and Effective

4

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 (2004). “An applicant shall not be deemed to have
exhausted the remedies available in the courts 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 (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. §1154(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 (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 (2005).

5

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 conclusion of direct review, including discretionary review in the
United States Supreme Court and the Pennsylvania Supreme Court, or at the
expiration of time for seeking such review. Id. §9545(b)(3).

B.

May’s Petition

Although courts may enter 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 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 his claims in state court prior to filing his federal
petition.
Rhines v. Weber, 544 U.S. 269, 277 (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).
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Unlike Rhines and Heleva, in the case at bar, there is little concern
denying the 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 October 1, 2012. On
August 19, 2013, Petitioner filed a petition for PCRA relief in the Court of
Common Pleas of Lebanon County. See Commonwealth v. May, CP-38-CR0000071-1990, Criminal Docket Sheet. Thus, the filing of Petitioner’s PCRA
petition tolled the one-year limitation period. 28 U.S.C. §2244(d)(2).
Therefore, once Petitioner properly exhausts his claims through the PCRA
process, he will still have 42 days remaining on his one-year limitation period
in which to file a timely habeas petition. Because there is no real danger that
denying the stay of proceedings on Petitioner’s federal petition will result in
his federal claims becoming time barred, the court will deny the motion for a
stay of these federal proceedings.

C.

Stay of Execution

On January 9, 2013, Governor Tom Corbett signed a warrant for the
execution of Petitioner, scheduling his execution for March 5, 2013. (Doc. No.
4.) On January 23, 2013, this court granted Petitioner’s motion to stay the
execution. (Doc. No. 8.) Petitioner’s execution date has lapsed,3 and his
3

Pursuant to 61 Pa. Cons. Stat. Ann. §4302,

(a) Time. - 7

execution is no longer imminent, because the original execution warrant has
expired and no new warrant has been issued. While the court recognizes that
Pennsylvania law requires the reissuance of the warrant upon vacation of the
federal stay, it also permits the Pennsylvania courts to grant another stay for
post-conviction purposes upon a finding that “the petitioner makes a strong
showing of likelihood of success on the merits.” 42 Pa. Cons. Stat.
§9545(c)(2). Thus, upon renewal of the execution warrant, Petitioner may file
a motion to stay the execution in the PCRA court, where the case correctly
belongs at this stage of the proceedings.

III.

Conclusion
Because Petitioner is afforded sufficient time to return to this court after

he properly exhausts his state court remedies, the Respondent has failed to

(1) After the receipt of the record pursuant to 42 Pa.C.S.
§9711(I) (relating to sentencing procedure for murder of the first
degree), unless a pardon or commutation has been issued, the
Governor shall, within 90 days, issue a warrant specifying a day
for execution which shall be no later than 60 days after the date
the warrant is signed.
(2) If, because of a reprieve or a judicial stay of the
execution, the date of execution passes without imposition of the
death penalty, unless a pardon or commutation has been issued,
the Governor shall, within 30 days after receiving notice of the
termination of the reprieve or the judicial stay, reissue a warrant
specifying a day for execution which shall be no later than 60
days after the date of reissuance of the warrant.
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satisfy the good cause requirement under Rhines for the issuance of a federal
stay and abeyance order in this case. Consequently, the court will deny the
instant motion to stay. Additionally, Petitioner’s stay of execution will be lifted
on February 28, 2014, and his petition for writ of habeas corpus will be
dismissed without prejudice to his right to re-file a petition once he has
properly exhausted his state courts remedies.
A certificate of appealability will not issue. An order consistent with this
memorandum will issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: January 30, 2014
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2012 MEMORANDA\12-2572-01.wpd