DEEP v. WINGARD et al

Filing 13

ORDER denying 10 Motion to Dismiss; granting 12 Motion to Stay. The Section 2254 habeas case is stayed pending Petitioner's complete exhaustion of his state court remedies. The Parties are ordered to notify the Court in writing no later t han 45 days after the Pennsylvania Superior Court has issued its decision in Commonwealth v. Michael George Deep, No. 2025 WDA 20914. Signed by Chief Magistrate Judge Maureen P. Kelly on 3/4/2015. A copy of the Order together with this Notice of Electronic Filing are being sent to Petitioner via first class mail at his address of record. (tmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL DEEP,

)
)
)
vs.
)
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TREVOR WINGARD; ATTORNEY
)
GENERAL OF THE STATE OF
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PENNSYLVANIA,
)
Respondents. )
Petitioner,

Civil Action No. 14-831
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 10; 12

ORDER
Michael Deep (“Petitioner”) has filed a Petition for Writ of Habeas Corpus by a Person in
State Custody pursuant to 28 U.S.C. §2254 (the “Petition”). The Respondents, rather than filing
an Answer, filed a Motion to Dismiss, ECF No. 10, asserting that the Petition should be
dismissed without prejudice due to Petitioner having an appeal of his Post Conviction Relief Act
(“PCRA”) Petition currently pending in the Pennsylvania Superior Court. In their Motion to
Dismiss the Respondents do not provide the docket number of the pending appeal in the
Pennsylvania Superior Court upon which they base their request for dismissal. However, it
appears that the pending appeal that they were referring to was Commonwealth v. Michael
George Deep, No. 1280 WDA 2014 (Pa. Super. Notice of Appeal filed 8/8/2014) (hereinafter
“the First Appeal”).1 See ECF No. 10 at ¶ 3.n. (asserting that Petitioner’s “appeal is pending to
date” i.e., pending as of August 14, 2014, when the Respondents’ Motion to Dismiss was filed).
However, the Court takes judicial notice of the fact that the First Appeal ceased to be pending as
1

The dockets of the Superior Court for Commonwealth v. Michael George Deep, No. 1280
WDA 2014 are available at:
https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=1280+W
DA+2014
(site last visited 3/3/2015).

of September 17, 2014, when Petitioner filed a praecipe to discontinue the First Appeal and the
First Appeal was closed as of that date.
Even though the First Appeal, upon which the Respondents’ Motion to Dismiss was
based, is no longer pending, we take judicial notice of the fact that the Petitioner filed another
appeal concerning the same conviction that was both the subject of the First Appeal and the
subject of this habeas Petition. The second appeal is Commonwealth v. Michael George Deep,
No. 2025 WDA 2014 (Pa. Super. Notice of Appeal filed 12/15/2014) (hereinafter, the “Second
Appeal”).2 The Second Appeal is currently pending in the Pennsylvania Superior Court.
Petitioner filed a Response to the Respondents’ Motion to Dismiss, opposing dismissal of
the Petition. ECF No. 11. Subsequently, Petitioner also filed a “Motion to Postpone Habeas
Corpus Proceedings Until Exhaustion of Newly Discovered Evidence Claims in State Court” (the
“Motion to Stay”). ECF No. 12. In the Motion to Stay, Petitioner argued that he has a currently
pending appeal in the Pennsylvania Superior Court, i.e., the Second Appeal, and he wishes to
exhaust his state court remedies. Even though the Court ordered the Respondents to file a
Response to Petitioner’s Motion to Stay by February 18, 2015, no such Response was filed.
Therefore, Respondents’ Motion to Dismiss, ECF No. 10, is hereby DENIED. Dismissal
of the currently pending Petition, even if without prejudice, could jeopardize the timeliness of
any later filed habeas Petition in this Court. In order to avoid such a potential pitfall for
Petitioner, the Motion to Dismiss is DENIED. See, e.g., Crews v. Horn, 360 F.3d 146, 149 – 50

The dockets of the Superior Court for Commonwealth v. Michael George Deep, No. 2025
WDA 2014 are available at:
2

https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=2025+W
DA+2014
(site last visited 3/3/2015).
2

(3d Cir. 2004) (“in view of the time limitations imposed by the AEDPA, where outright
dismissal ‘could jeopardize the timeliness of a collateral attack,’ a district court would abuse that
discretion if it were not to offer to the petitioner the opportunity of staying, rather than
dismissing, the petition.”).
Instead, the Court hereby GRANTS Petitioner’s Motion to Stay, ECF No. 12, and the
Petition is hereby STAYED pending complete exhaustion of Petitioner’s state court remedies.
Rhines v. Weber, 544 U.S. 269 (2005) (allowing a stay and abeyance of a habeas petition in
order to permit a petitioner to exhaust state court remedies). The parties are ORDERED to
notify this Court in writing no later than 45 days after the Pennsylvania Superior Court has
issued its decision in Commonwealth v. Michael George Deep, No. 2025 WDA 20914. Upon
being notified of the Superior Court’s disposition and the filing of any Petition for Allowance of
Appeal in the Pennsylvania Supreme Court, this Court will consider lifting the stay at that time,
if appropriate.
BY THE COURT,
s/ Maureen P. Kelly
MAUREEN P. KELLY
CHIEF UNITED STATES MAGISTRATE JUDGE
Date: March 4, 2015

cc:

All Counsel of Record via CM-ECF
Michael Deep
HA-1444
SCI Laurel Highlands
5706 Glades Pike
P.O. Box 631
Somerset, PA 15501-0631
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