Opinion
Civil Action No. 18-352 Erie
03-05-2019
MARK ALAN ANDRESS, Petitioner, v. M.D. OVERMYER, et al., Respondents.
Judge Susan Paradise Baxter
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
Pending before the Court is a petition for a writ of habeas corpus, ECF No. 1, filed by state prisoner Mark Alan Andress ("Petitioner") pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Respondents have filed a motion to dismiss the petition. ECF Nos. 5, 18. It is respectfully recommended that the Court grant their motion and dismiss Petitioner's federal habeas claims without prejudice.
II. REPORT
A. Background
In this habeas action, Petitioner challenges the judgment of sentence imposed upon him on April 29, 2016, by the Court of Common Pleas of McKean County at criminal docket number CP-42-CR-403-2015. Petitioner filed a direct appeal with the Superior Court of Pennsylvania, which affirmed his judgment of sentence in a decision it issued on November 28, 2017. ECF No. 5-2 at 1-10. He did not file a petition for allowance of appeal with the Supreme Court of Pennsylvania; therefore, his judgment of sentence became final under both state and federal law on or around December 28, 2017, when the time for him to do so expired. 42 PA. CONS. STAT. § 9545(b)(3) ("a judgment becomes final at the conclusion of direct review, including discretionary review in the Supreme Court of the United States and the Supreme Court of Pennsylvania, or at the expiration of time for seeking the review."); Gonzalez v. Thaler, 565 U.S. 134, 149-54 (2012) (a judgment becomes final under 28 U.S.C. § 2244(d)(1)(A) at the conclusion of direct review or the expiration of time for seeking such review).
Petitioner filed his federal habeas petition in this Court on October 24, 2018. ECF No. 1 at 22. Approximately one month later, on or around November 26, 2018, he filed in the Court of Common Pleas a petition for collateral relief pursuant to Pennsylvania's Post Conviction Relief Act ("PCRA"), 42 PA. CONS. STAT. § 9541 et seq. Because Petitioner is currently exhausting his available state-court remedies, Respondents have moved to dismiss this habeas action. ECF Nos. 5, 18. In his initial reply, ECF No. 14, Petitioner asserted that he did not file a PCRA petition, but in a subsequent filing, ECF No. 17, he acknowledged that he does have a PCRA proceeding pending in state court.
"Pursuant to the Pennsylvania prisoner mailbox rule, the date of delivery of the PCRA petition by the defendant to the proper prison authority or to a prison mailbox is considered the date of filing of the petition." Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 83 n.1 (3d Cir. 2013) (internal quotation and citation omitted). The copy of Petitioner's PCRA petition that Respondents provided to this Court, ECF No. 18-1 at 1-27, does not indicate the date that Petitioner submitted it for mailing. Accordingly, this Court will assume without deciding that he filed the PCRA petition on November 26, 2018, which is the filing date recorded on the Court of Common Pleas' docket sheet. ECF No. 5-3 at 13.
After Respondents filed their initial motion to dismiss, ECF No. 5, the Court issued a text order, ECF No. 16, directing them to submit a copy of Petitioner's PCRA petition. Respondents provided that document to the Court in their supplement to the motion to dismiss, ECF No. 18.
B. Discussion
A federal habeas petitioner must complete the exhaustion of his available state-court remedies before a federal district court may determine the merits of his habeas claims. This exhaustion requirement is codified at 28 U.S.C. § 2254(b)(1)(A), which provides:
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 -
The requirement is "grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991).(A) the applicant has exhausted the remedies available in the courts of the State[.]
The general rule is that a district court must dismiss a federal habeas petition if the petitioner is exhausting his available state remedies. See, e.g., Rhines v. Weber, 544 U.S. 269, 273-79 (2005) (discussing the general rule as set forth in Rose v. Lundy, 455 U.S. 509 (1982) and the limited exception to it, which does not appear to apply here). Because Petitioner is currently litigating challenges to his state-court judgment of sentence in his PCRA proceeding, the Court should grant Respondents' motion and dismiss Petitioner's claims without prejudice to Petitioner commencing another federal habeas case if, after the completion of his PCRA proceeding, he does not receive the relief he seeks in state court.
After Congress enacted AEDPA, federal habeas courts were faced with how to resolve the interaction between AEDPA's one-year statute of limitations (codified at 28 U.S.C. § 2244(d)) and the pre-AEDPA rule set forth in Lundy that required that federal courts dismiss without prejudice habeas petitions that contain unexhausted claims. Rhines, 544 U.S. at 275 ("As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with 'mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.") In Rhines, the Supreme Court held that in order to avoid predicaments that may arise in attempting to comply with AEDPA's statute of limitations while at the same time exhausting claims in state court, a state prisoner may file a "protective" habeas petition in federal court and ask the district court to stay the federal habeas proceeding until state remedies are exhausted. As set forth above, Petitioner's judgment of sentence became final on or around December 28, 2017. He had one year from that date to file his federal habeas claims. 28 U.S.C. § 2244(d)(1)(A). Importantly, however, AEDPA provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2). The filing of Petitioner's PCRA petition statutorily tolled AEDPA's statute of limitations and it will remain tolled during the pendency of Petitioner's PCRA proceeding. Therefore, there is no need for Petitioner to file a "protective" habeas petition at this time. According to Respondents, Petitioner will "have approximately thirty-two (32) days from the final resolution of his PCRA in state court in which to" file a timely federal habeas petition. ECF No. 5 at 4. --------
C. Certificate of Appealability
AEDPA codified standards governing the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from...the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court[.]" 28 U.S.C. § 2253(c)(1)(A). It also provides that "[a] certificate of appealability may issue...only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). This Court need not make a certificate of appealability determination because "[a] district court's order dismissing, without prejudice, a petition for federal habeas relief for failure to exhaust state-court remedies is not a final appealable order, since it explicitly entitles the petitioner to renew habeas proceedings upon completion of review of his claims in the state court system." BRIAN R. MEANS, FEDERAL HABEAS MANUAL § 12:30, Westlaw (database updated June 2018) (citations omitted). See also Gacho v. Butler, 792 F.3d 732, 735-37 (7th Cir. 2015). To the extent a certificate of appealability determination is required, Petitioner is not entitled to one because jurists of reason would not find it debatable whether his habeas claims should be dismissed because he is exhausting his state-court remedies. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant Respondents' motion, ECF Nos. 5, 18, and dismiss without prejudice Petitioner's claims for federal habeas relief. Pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Civil Rules, Petitioner is allowed fourteen (14) days from the date of this Order to file objections to this Report and Recommendation. Failure to do so will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge