Opinion
Civil Action No. 04-535.
May 17, 2004
REPORT AND RECOMMENDATION
This is a counseled petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, on behalf of David Addams, who is currently incarcerated at the State Correctional Institution at Rockview, Pennsylvania. For the reasons that follow, I recommend that the petition be stayed pending the state courts' consideration of Addams' pending collateral appeal.
FACTS AND PROCEDURAL HISTORY:
In late-1996 and early-1997, Addams was convicted of three robberies: the March 27, 1996 robbery of a Burger King (3197-96); the March 5, 1996 robbery of a McDonald's (4347-96); and the March 26, 1996 robbery of a Swiss Farms Store (1171-96). The robberies are related because the Commonwealth presented evidence at all three trials that was obtained during the search of Addams' vehicle after the Burger King robbery.
Although Addams was tried separately for each of the robberies, two of the convictions were consolidated for purposes of appeal. With respect to those two convictions, the McDonald's and Burger King robberies, Addams previously filed habeas petitions attacking those convictions. (Civil Actions 03-3789 and 03-3790). By Order of the Honorable Norma L. Shapiro, those petitions are currently stayed, pending the outcome of Addams' state collateral appeal of those two convictions. Specifically, Addams presented claims in those two habeas petitions regarding the alleged fabrication of evidence to support his arrest. That claim is pending in the state courts in collateral appeals that Addams had filed. Thus, the habeas claim was not exhausted.
On March 4, 2004, the Third Circuit decided Crews v. Horn, 360 F.3d 146 (3d Cir. 2004), in which the court held that it is appropriate for the district court to stay consideration of a mixed habeas petition to allow the petitioner to exhaust state court remedies if dismissal of the habeas petition could jeopardize the timeliness of a later petition. Pursuant toCrews, Judge Shapiro held the mixed petitions in suspense pending Addams' exhaustion of state court remedies.
Now, Addams has filed a habeas petition attacking the Swiss Farms conviction. Again, he brings claims that an officer fabricated evidence to support his arrest. The claim is pending in the state courts. Addams presented this claim in his second post-conviction petition, filed on December 31, 2003. That petition is pending in the PCRA Court. Once the PCRA Court has disposed of the petition, assuming that it is in the Commonwealth's favor, Addams will have to present the claim to the Superior Court for the claim to be considered exhausted in the habeas forum. Thus, the habeas petition currently before the federal court is also mixed. Following the Third Circuit's decision in Crews, we will recommend that the District Court stay the proceedings on this petition pending the outcome of Addams' second state collateral appeal.
The District Attorney argues that the court need not defer ruling on the case because the unexhausted claim is essentially a Fourth Amendment claim governed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976). In Stone, the Court held,
where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.Id, at 494 (footnotes omitted). We disagree with the District Attorney. In fact, the litigation of the Fourth Amendment claim is continuing in the state courts presently. Although we understand that the District Attorney is arguing that the process that has already occurred is sufficient to meet the Stone requirements for a full and fail opportunity to litigate this claim, we believe it would be premature to assess the claim underStone until such time as the state court has concluded all review of the claim.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this 17th day of May, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be stayed pending conclusion of the Petitioner's state collateral appeal. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
NORMA L. SHAPIRO, S.J.,AND NOW, this day of, 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ of habeas corpus is STAYED pending completion of the Petitioner's state collateral appeal.
3. There is no basis for the issuance of a certificate of appealability.