Opinion
CIVIL NO. 3:18-CV-2071
11-28-2018
FOSTER LEE TARVER, Petitioner, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al., Respondents.
(Judge Mannion)
( ) REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
In this case we are asked to consider the latest chapter in a legal saga which has spanned nearly five decades. The petitioner, Foster Lee Tarver, was charged by state authorities for his participation in a December 1968 homicidal crime spree, and in June of 1969, Tarver, who was then a minor, was convicted of murder, robbery and other offenses. Tarver was then sentenced to life imprisonment. (Doc. 1.) The factual background of these offenses was summarized by the Pennsylvania Supreme Court in its 1971 decision affirming Tarver's conviction and sentence in the following terms:
On the morning of December 2, 1968, Tarver, acting in concert with Samuel Barlow, Jr., and Sharon Margarett Wiggins, executed an armed robbery of the Market Street Branch of the Dauphin Deposit Trust
Company in Harrisburg. During the robbery, a customer in the bank was shot both by Tarver and Wiggins. Six bullets entered his body causing instant death. Following the robbery, the felons fled from the scene in a Chevrolet Sedan which they stole on the same morning from a parking lot in Harrisburg. About two blocks from the bank, the three abandoned the Chevrolet Sedan and entered a Buick Sedan which they had previously stolen in Pittsburgh and parked in this pre-arranged location in Harrisburg to aid in their flight from arrest. While fleeing in the Buick, the felons were apprehended by the police and the money stolen from the bank totaling Seventy Thousand ($70,000) Dollars was recovered. The major portion of the money was found in the Buick Sedan and about Forty-Five Hundred ($4500) Dollars was found in and around the abandoned Chevrolet Sedan.Commonwealth v. Tarver, 284 A.2d 759, 760-61 (1971).
During the hearing to determine the degree of guilt, Tarver testified and did not deny his participation in the commission of the robbery. Neither did he deny shooting the victim of the homicide. However, he stated that for some time before the day involved he became accustomed to consuming quantities of cough syrups, known as Robitussin and Romilar, sniffing glue and smoking marijuana, and that he had done this a short time before the bank robbery, here involved; that as a result he was 'high' when he entered the bank and his head was 'spinning'; that he had no intention of robbing the bank, and could not remember committing the robbery or shooting anyone during its occurrence. However, questioning elicited that he remembered stealing the Buick in Pittsburgh; stealing the Chevrolet a short time before the robbery in Harrisburg; parking the Buick under a bridge a short distance from the bank; 'thinking' about robbing the bank; driving to the bank in the Chevrolet and having three guns, two .32 Calibre revolvers and one .22 Calibre revolver in his coat pocket at the time; and, standing on a counter while in the bank.
More than four decades later, the Supreme Court's decision in Miller v. Alabama, 567 U.S. 460 (2012), held that life sentences without the possibility of parole for juvenile offenders like Tarver violated the Eighth Amendment to the United States Constitution. Following this Supreme Court decision, Tarver sought post-conviction relief, seeking re-sentencing in light of the Eighth Amendment principles announced in Miller. This relief was granted, and according to Tarver's current federal habeas corpus petition, on October 30, 2017, he was re-sentenced in the Court of Common Pleas of Dauphin County to 40 years to life imprisonment on this murder conviction. (Doc. 1.) Given the fact that Tarver had served some 48 years in prison at the time of this re-sentencing, this newly imposed sentence was tantamount to a time-served sentence, and it is apparent that Tarver has been released from custody and resides in Pittsburgh, but may still be under parole supervision.
The state court docket also discloses that Tarver filed a timely notice of appeal from this re-sentencing on November 24, 2017. Commonwealth v. Tarver, No. CP-22-CR-0000043-1968. In his pro se habeas corpus petition, Tarver acknowledges that he is actively pursuing an appeal of this state sentence before the Pennsylvania Superior Court, (id.), but has nonetheless filed a federal habeas corpus petition relating to what he concedes are unexhausted sentencing claims that may have arisen in the wake of this October 2017 re-sentencing. In his federal habeas corpus petition, Tarver expresses a concern that any federal claims relating to this re-sentencing may somehow be construed as time-barred. Therefore, while Tarver files this plainly unexhausted petition at this time, he also expressly "seeks abeyance of habeas corpus adjudication," until he fully exhausts his state remedies. (Id.)
For its part, the Commonwealth reports that Tarver's timely state court appeal is pending in Pennsylvania's Superior Court, but is not yet fully briefed. Given the procedural posture of this unexhausted habeas corpus petition, the Commonwealth recommends that the petition be dismissed without prejudice, rather than stayed. (Doc. 5.)
For the reasons set forth below, we recommend that this petition be dismissed without prejudice pending completion of Tarver's latest round of state post-conviction litigation.
II. Discussion
A. State Prisoner Habeas Relief-The Legal Standard.
A state prisoner seeking to invoke the power of this Court to issue a writ of habeas corpus must satisfy the standards prescribed by 28 U.S.C. § 2254, which provides in part as follows
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall 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.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State;
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.28 U.S.C. § 2254 (a) and (b).
(1.) Substantive Standards For Habeas Petitions
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, a petition must satisfy exacting substantive standards to warrant relief. Federal courts may "entertain an application for a writ of habeas corpus on 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). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States," § 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings led to a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to § 2254 relief, absent a showing that those violations are so great as to be of a constitutional dimension. See Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
(2). Deference Owed to State Court Rulings.
These same principles which inform the standard of review in habeas petitions and limit habeas relief to errors of a constitutional dimension also call upon federal courts to give an appropriate degree of deference to the factual findings and legal rulings made by the state courts in the course of state criminal proceedings. There are two critical components to this deference mandated by 28 U.S.C. § 2254.
First, with respect to legal rulings by state courts, under § 2254(d), habeas relief is not available to a petitioner for any claim that has been adjudicated on its merits in the state courts unless it can be shown that the decision was either: (1) "contrary to" or involved an unreasonable application of clearly established case law; see 28 U.S.C. § 2254(d)(1); or (2) was "based upon an unreasonable determination of the facts," see 28 U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal courts frequently decline invitations by habeas petitioners to substitute their legal judgments for the considered views of the state trial and appellate courts. See Rice v. Collins, 546 U.S. 333, 338-39 (2006); see also Warren v. Kyler, 422 F.3d 132, 139-40 (3d Cir. 2006); Gattis v. Snyder, 278 F.3d 222, 228 (3d Cir. 2002).
In addition, § 2254(e) provides that the determination of a factual issue by a state court is presumed to be correct unless the petitioner can show by clear and convincing evidence that this factual finding was erroneous. See 28 U.S.C. § 2254(e)(1). This presumption in favor of the correctness of state court factual findings has been extended to a host of factual findings made in the course of criminal proceedings. See, e.g., Maggio v. Fulford, 462 U.S. 111, 117 (1983) (per curiam); Demosthenes v. Baal, 495 U.S. 731, 734-35 (1990).
(3). Procedural Thresholds for Section 2254 Petitions.
(a). Exhaustion of State Remedies.
Furthermore, state prisoners seeking relief under Section 2254 must also satisfy specific, and precise, procedural standards. Among these procedural prerequisites is a requirement that the petitioner "has exhausted the remedies available in the courts of the State" before seeking relief in federal court. 28 U.S.C. § 2254(b). In instances where a state prisoner has failed to exhaust the legal remedies available to him in the state courts, federal courts typically will refuse to entertain a petition for habeas corpus. See Whitney v. Horn, 280 F.3d. 240, 250 (3d Cir. 2002).
This statutory exhaustion requirement is rooted in principles of comity and reflects the fundamental idea that the state should be given the initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights. O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). As the Supreme Court has aptly observed, "a rigorously enforced total exhaustion rule" is necessary in our dual system of government to prevent a federal district court from upsetting a state court decision without first providing the state courts the opportunity to correct a constitutional violation. Rose v. Lundy, 455 U.S. 509, 518 (1982). Requiring exhaustion of claims in state court also promotes the important goal of ensuring that a complete factual record is created to aid the federal courts in their review of a § 2254 petition. Walker v. Vaughn, 53 F.3d 609, 614 (3d Cir. 1995). A petitioner seeking to invoke the writ of habeas corpus, therefore, bears the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, and the claims brought in federal court must be the "substantial equivalent" of those presented to the state courts. Evans v. Court of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992); Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982). A petitioner cannot avoid this responsibility merely by suggesting that he is unlikely to succeed in seeking state relief, since it is well-settled that a claim of "likely futility on the merits does not excuse failure to exhaust a claim in state court." Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005).
B. This Petition Should be Dismissed Without Prejudice
These settled legal tenets dictate the outcome in this case. At the outset, on the face of this habeas corpus petition it is evident that the petitioner has not met § 2254's exhaustion requirement. Indeed, Tarver admits as much in his petition. Because of the strong policies favoring exhaustion of state remedies, petitioners who seek to be excused from this requirement must make an exacting showing to avoid this exhaustion requirement and, "[u]nder ordinary circumstances, a federal court may not entertain a petition for a writ of habeas corpus unless the petitioner has first presented each of his claims to the state's highest tribunal. See 28 U.S.C. §§ 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982)." Lee v. Stickman, 357 F.3d 338, 341 (3d Cir. 2004).
When a petitioner files a petition which contains unexhausted claims, the court has several courses available to it. First, the court can dismiss the petition without prejudice, so that the petitioner can either return to state court and totally exhaust his claims, or proceed in federal court on a petition which raises only wholly exhausted issues. Rose v. Lundy, 455 U.S. 509 (1982). This total exhaustion approach facilitates the important goals of federalism and comity that are essential to the exhaustion rule, and allows for complete legal and factual development of these cases in the state legal system before petitions are presented in federal court. However, because strict compliance with this total exhaustion rule can create procedural dilemmas for some petitioners who may be unable to fully exhaust state remedies on petitions before the one-year statute of limitations prescribed for state habeas petitions elapses, the courts have adopted another procedure which may be employed in a limited number of cases, a "stay and abeyance" procedure, in which the federal habeas petition is stayed pending exhaustion of state remedies by the petitioner. Rhines v. Weber, 544 U.S. 269 (2005). According to the Supreme Court:
[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only
appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.Rhines, 544 U.S. at 277. Therefore, in order to qualify for a stay and abeyance a petitioner should "satisf[y] the three requirements for a stay as laid out in Rhines: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics." Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009). See Tarselli v. Superintendent Greene SCI, 726 F. App'x 869, 874 (3d Cir. 2018).
With respect to this threshold requirement that a petitioner demonstrate "good cause" in order to obtain a stay, rather than dismissal, of an unexhausted federal habeas corpus petition:
While the Third Circuit has not "definitively outline[d] the bounds of [good cause,]" Heleva v. Brooks, 581 F.3d 187, 192 n. 3 (3d Cir. 2009), district courts should consider how much time remains for a petitioner to file a subsequent [federal] petition [following state post-conviction litigation] in determining whether good cause exists. Tarselli, 726 Fed.Appx. at 875.Waters v. Delbalso, No. CV 18-1333, 2018 WL 5830265, at *2 (M.D. Pa. Nov. 7, 2018). Applying this legal benchmark of good cause to unexhausted federal habeas corpus petitions filed by juvenile offenders who are protesting their state court re-sentencings pursuant to Miller, this court has recently held that where the petitioner has filed a timely appeal from his re-sentencing, the petitioner is not exposed to the type of statute of limitations peril which might constitute "good cause," and has opted to dismiss such petitions without prejudice rather than stay these federal proceedings while the petitioner exhausts his state remedies. See Waters, No. CV 18-1333, 2018 WL 5830265, at *2.
This principle is directly applicable here and suggests the course we should follow in the instant case. Like the petitioner in Waters, Tarver's timely appeal of his re-sentencing tolls the limitations period for filing a federal habeas corpus petition. Since Tarver's alacrity in pursuing his state court appeal means that he faces no real peril of his federal habeas corpus petition being deemed untimely, he has not shown good cause justifying a stay of this case, rather than dismissal of the unexhausted petition without prejudice. Accordingly, finding that the legal requirements for a stay are not met here, we recommend that the petition for writ of habeas corpus be dismissed without prejudice.
III. Recommendation
Accordingly, for the foregoing reasons, upon consideration of this Petition for Writ of Habeas Corpus, IT IS RECOMMENDED that the Petition be DISMISSED, without prejudice, and that a certificate of appealability should not issue. The Petitioner is further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the
disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 28th day of November, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge