Miller v. Tennis

Filing 58

ORDER denying Miller's motion for appt of cnsl 56 w/out prejudice to his rt to request cnsl upon completion of the state PCRA litigation or upon ct's excuse of exhaustion req'mt & ORDERING defts to file w/ the ct no later than 5:00 pm on 8/9//13 a report apprising ct of outcome of 6/12/13 state ct hearing on motion to stipulate to exhaustion. (See order for complete details.) Signed by Honorable Christopher C. Conner on 7/26/13. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GARY ADAM MILLER,
Petitioner,
v.
MARIROSA LAMAS, et al.,
Respondents

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Civil Action No. 4:10-CV-51
(Judge Conner)

ORDER
AND NOW, this 26th day of July, 2013, upon consideration of the motion for
appointment of counsel, filed pro se by petitioner Gary Miller, and it appearing that
a district court may appoint counsel to represent an indigent petitioner in a 28
U.S.C. § 2254 proceeding when “the interests of justice so require,”18 U.S.C. §
3006A(a)(2)(B), and that on April 24, 2012 (Doc. 51), the court issued an order
denying petitioner’s motion to lift the stay of his petition for a writ of habeas corpus,
filed pursuant to 28 U.S.C. § 2254, which was imposed by order dated March 8, 2011
(Doc. 39), directing that this case shall remain stayed pending completion of the
state court litigation under Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S. §
9541 et seq., see also McKernan v. Varner, 2003 WL 21771738, Civ. A. No. 02-7835, at
*1 (E.D. Pa. July 18, 2003) (stating that a state prisoner must exhaust all state court
remedies before applying for federal habeas relief), and it appearing that Miller is
represented by Mr. William Shreve in his state court PCRA litigation, which
remains ongoing (see Doc. 57),1 it is hereby ORDERED that:
1

The court notes that Miller’s PCRA litigation has been ongoing since 2010.
In his report recommending that the court stay the instant § 2254 motion pending

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1.

Miller’s motion is DENIED without prejudice to his right to request
counsel upon completion of the state PCRA litigation, or upon the
court’s excuse of the exhaustion requirement.

2.

Defendants are hereby ORDERED to file with the court, no later than
5:00 p.m., August 9, 2012, a report apprising the court of the outcome
of the June 12, 2013 state court hearing on the motion to stipulate to
exhaustion.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

exhaustion of state remedies, Magistrate Judge Carlson recognized that there had
been some delay in the state court proceedings, but that the courts appeared to now
be “diligently pursuing” Mr. Miller’s case. (Doc. 37 at 13). Accordingly, the court
declined to excuse the exhaustion requirement on the grounds of inordinate delay,
but directed that the parties file status reports at 90 day intervals, apprising the
court of the status of the PCRA litigation. (See Doc. 39; see also Doc. 37 at 13
(quoting Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986)). On May 21, 2012,
the court denied Mr. Miller’s motion to lift the stay, adopting Magistrate Judge
Carlson’s recommendation that progress in the state courts counseled against
lifting the stay. However, that was over a year ago, and this case has been stayed
for approximately two and a half years. As the court has been informed in the tenth
status report, Mr. Miller, through his new counsel Mr. Shreve, requested argument
on a motion to stipulate as to the exhaustion of state remedies, which was to occur
on June 14, 2013.
The court will order counsel for defendants to file a report detailing the
outcome of that hearing, so that the court may determine whether it is now
appropriate to excuse Mr. Miller from the exhaustion requirement. In the
meantime, the court will deny Mr. Miller’s motion for counsel, but without
prejudice to his right to seek counsel should the PCRA litigation conclude, or the
court excuse the exhaustion requirement.