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

Bradley v. Commonwealth Of Pennsylvania et al Doc. 19 Att. 1 Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RONNIE BRADLEY, : CIVIL ACTION NO. 4:CV-09-0008 : Petitioner : (Judge Jones) : v. : (Magistrate Judge Blewitt) : COMMONWEALTH OF : PENNSYLVANIA, : et. al., : : Respondents : I. Background. REPORT AND RECOMMENDATION On January 5, 2009, Petitioner, Ronnie Bradley, currently an inmate at the State Correctional Institution at Rockview ( SCI-Rockview ), Bellafonte, Pennsylvania, filed, pro se, 1 a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. Petitioner attached eleven (11) exhibits to his Habeas Petition. (Doc. 1, Exs. A-K). Petitioner challenges his May 4, 2006 convictions for criminal conspiracy and theft by unlawful taking in the Carbon County 2 Court of Common Pleas. (Doc. 1, p. 2). Petitioner also filed a Motion to proceed in forma pauperis. (Doc. 3). Petitioner raises the following four (4) habeas claims regarding his state convictions: (1) Unlawfully Induced Plea; (2) Ineffectiveness of Trial Counsel and Appellate Counsel; (3) Prosecutorial Misconduct; and (4) Unlawfully Induced Sentence. (Doc. 1, p. 6). Petitioner 1 Since Petitioner is confined at SCI-Rockview, which is located in the M.D. Pa. (Doc. 1, p. 2.), venue is proper in this Court. 2 The Habeas Petition begins at page 2. (Doc. 1). Dockets.Justia.com

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 2 of 17 indicates that he has raised all four of his claims with the Pennsylvania Superior Court in a direct appeal. (Id.). Respondents contend that Petitioner has not yet exhausted his state court remedies for all of his instant habeas claims. Rather, Respondent states that Petitioner has only exhausted his state court remedies with respect to his Unlawfully Induced Plea 3 claim. Additionally, as discussed below, we disagree with Respondents and find that Petitioner s Habeas Petition was not timely filed. II. Procedural History. As the Pennsylvania Superior Court stated in its October 16, 2007 Memorandum (attached to Doc. 5): On July 21, 2005, [Petitioner] and an accomplice removed a drill from a Fastenal store in Lehighton. The Commonwealth subsequently charged [Petitioner] with multiple offenses, including 2 theft by unlawful taking, at Criminal docket No. 271 of 2006. On August 9, 2005, [Petitioner] and two accomplices removed stereo equipment from a RentWay store in Mahoning Township. At criminal docket No. 656 of 2005, the Commonwealth charged [Petitioner] with various offenses, including criminal conspiracy. 3 2 18 Pa.C.S.A. 3921(a). 3 18 Pa.C.S.A. 903. On May 4, 2006, [Petitioner] executed a written guilty plea colloquy for both sets of offenses [in the Court of Common Pleas of Carbon County, PA]. That same day, [Petitioner] proceeded to a guilty plea hearing. At Criminal docket No. 656 of 2005, the parties stipulated that [Petitioner] would plead guilty to one count of criminal conspiracy. At Criminal docket No. 271 of 2006, [Petitioner] agreed to plead guilty to one count of theft by unlawful taking. [Due to Petitioner s plea], the Commonwealth agreed to recommend standard range sentences, including restitution to the victims. (Stipulations, filed 5/4/06, at 1). [After] an on-the-record, 3 The habeas statute requires a prisoner to exhaust his claims in state court before seeking relief from federal courts. 28 U.S.C. 2254(b)(1)(A); see also Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990). 2

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 3 of 17 oral [guilty plea] colloquy, the [trial] court accepted [Petitioner s] pleas. (Doc. 5, October 16, 2007 Memorandum of Pennsylvania Superior Court, pp. 1-2). With the benefit of a pre-sentence investigation ( PSI ) report, the court conducted [Petitioner s] sentencing hearing on July 17, 2006. For the offense of criminal conspiracy, the court sentenced [Petitioner] to twelve (12) to thirty-six (36) months imprisonment, plus restitution in the amount of $266.85. The court also provided credit for 273 days of time served. For the offense of theft by unlawful taking, the court imposed a concurrent sentence of twelve (12) to thirty-six (36) months imprisonment, plus restitution in the amount of $139.04. The court also provided credit for eighty-one (81) days of time served. As per the Commonwealth s recommendation, the minimum sentence for each offense fell within the standard range of sentencing guidelines. On July 26, 2006, [Petitioner] timely filed a motion to modify and reduce the sentence. Specifically, Petitioner claimed significant, mitigating circumstances or factors warranted a reconsideration and reduction of his sentence. (Motion to Modify, filed 7/26/06, at 2). On July 28, 2006, the court denied [Petitioner s] motion. On August 25, 2006, [Petitioner] timely filed a notice of appeal. [Petitioner], however, filed a praecipe to discontinue the appeal on September 11, 2006. 4 On October 30, 2006, [Petitioner] timely filed a pro se PCRA petition. The court appointed current counsel, who filed an amended PCRA petition on February 28, 2007. In his amended petition, [Petitioner] argued: 1) plea counsel unlawfully induced the guilty pleas; 2) the court did not impose a sentence in accordance with the plea agreement; and 3) plea counsel was ineffective for failing to challenge the allegedly improper sentence. On April 2, 2007, the PCRA court conducted an evidentiary hearing. [Petitioner] and plea counsel both testified at the hearing. Immediately following the hearing, the court denied relief. 4 Thus, Petitioner s only direct appeal was filed with the trial court to modify and reduce his sentence. Petitioner did not exhaust his stated claim regarding his sentence in the state courts by pursuing his appeal of the trial court s July 28, 2006 Order to the Pennsylvania Superior Court. 3

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 4 of 17 [Petitioner] timely filed [a] notice of appeal on April 11, 2007. On April 24, 2007, the court ordered [Petitioner] to file a concise statement, pursuant to Pa.R.A.P. 1925(b), which [Petitioner] timely filed on May 7, 2007. Petitioner s PCRA counsel initially filed an appellate brief in which he argued against Petitioner s claims, although counsel had not sought to withdraw representation. Consequently, the Pennsylvania Superior Court remanded the appeal with directions to counsel to file either a proper advocate s brief on Petitioner s behalf or a no-merit letter in full compliance with Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). (Doc. 5, att. October 16, 2007 Pennsylvania Superior Court Memorandum). for review: Following remand, counsel filed a proper advocate s brief which raised only one issue WHETHER THE [PCRA] COURT SHOULD HAVE GRANTED [PETITIONER S] PETITION FOR POST-CONVICTION COLLATERAL RELIEF ON THE BASIS OF EVIDENCE IN THE RECORD THAT [PETITIONER S] GUILTY PLEAS WERE IMPROPERLY INDUCED BY TRIAL COUNSEL AND THEREFORE INVOLUNTARY AND RENDERED INVALID. (See Respondents Doc. 15 Exhibit A, p. 4 - Bradley Brief to the Pennsylvania Superior Court and Doc. 5, October 16, 2007 Superior Court Memorandum, p. 4 and Doc. 5, December 28, 2007 Superior Court Memorandum). On December 28, 2007, the Pennsylvania Superior Court affirmed the PCRA Court and its order dismissing Petitioner s PCRA petition. (Doc. 5, December 28, 2007 Superior Court Memorandum). Petitioner s instant Petition for Writ of Habeas Corpus was filed with this Court on January 5, 2009. (Doc. 1). 4

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 5 of 17 Before serving the Petitioner s Habeas Petition on Respondents and addressing the Petitioner s claims, we issued an Order on January 7, 2009, directing the Petitioner to submit to the Court copies of all of his state court appeals and the state court decisions, opinions, and orders regarding both his direct and collateral appeals, along with the filing dates thereof. 5 (Doc. 4). We indicated that the Court would then determine if the Petitioner s Habeas Petition was timely filed under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) 6 7 and if his instant claims were exhausted in the state courts. 5 We noted that the amended provisions of 28 U.S.C. 2244(d)(1) impose limitations on the right to pursue federal habeas relief. The amendments impose a one-year statute of limitations for 2254 habeas petitions. See Burns v. Morton, 134 F.3d 109, 111 (3d Cir. 1998). There are four potential starting points for determining when the statute of limitations begins to run. The applicable period in the instant matter would be the date that Petitioner s judgment of conviction became final. Merritt v. Blaine, 326 F.3d 157 (3d Cir. 2003). Any time devoted to pursuing a properly filed application for state post-conviction relief or other collateral relief is excluded from the limitations period. 28 U.S.C. 2244(d)(2); Merritt, supra. 6 The Third Circuit Court of Appeals, in Holden v. Mechling, 2005 WL 1219860 (3d Cir.), found that the District Court could sua sponte raise the AEDPA s statute of limitations and could summarily dismiss a 2254 habeas petition as untimely after Petitioner is afforded notice and an opportunity to be heard. See also U.S. v. Bendolph, 409 F.3d 155 (3d Cir. 2005); Day v. McDonough, 126 S.Ct. 1675, 1683 (2006). We thus gave Petitioner notice and an opportunity to be heard regarding whether his habeas petition was timely under the AEDPA. 7 The habeas statute requires a prisoner to exhaust his claims in state court before seeking relief from federal courts. 28 U.S.C. 2254(b)(1)(A); see also Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990). It is well settled in the Third Circuit that the Court has discretion to raise procedural issues, such as exhaustion of state court remedies, in habeas cases, and it may do so sua sponte. See Sweger v. Chesney, 294 F.3d 506, 520-521 (3d Cir. 2002), cert. denied, 538 U.S. 1002 (2003). We thus noted that if Petitioner did not exhaust his state court remedies, we would recommend that his Habeas Petition be dismissed without prejudice to re-file it after he completed exhaustion. 5

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 6 of 17 On January 20, 2009, in response to our January 7, 2009 Order, Petitioner filed a document which included copies of his state court appeals and the state court decisions, opinions and orders regarding both his direct and collateral appeals. (Doc. 5). On January 22, 2009, we issued an Order which directed Petitioner to complete and file the Notice of Election within forty-five (45) days of the date of our Order (Doc. 6). The Notice of Election advised Petitioner that he could have the petition ruled on as filed, but in that event lose his ability to file a second or successive petition(s) absent certification by the Court of Appeals. (Doc. 6). On February 20, 2009, in response to our January 22, 2009 Order, Petitioner timely filed the Notice of Election and elected to have the Court rule on his petition as filed. (Doc. 12). We also issued another Order on January 22, 2009, and directed Respondents to respond to Petitioner s Habeas Petition regarding only the statute of limitations and exhaustion issues within fifteen (15) days of the date of our Order. Petitioner was then afforded an opportunity to file a reply. (Doc. 7). Respondent District Attorney ( DA ) filed a Response on March 4, 2009, along with a copy of Petitioner s aforementioned Brief to the Pennsylvania Superior Court. (Doc. 15, Exhibit A). Respondent DA moved to dismiss this case based on Petitioner s failure to exhaust his state court remedies with respect to all of his habeas claims. Respondent DA stated that Petitioner s Habeas Petition was timely filed. On February 20, 2009, Petitioner moved for this Court to appoint counsel. (Doc. 13). On February 24, 2009, this Court issued an Order denying Petitioner s motion, finding that the interests of justice did not require appointment of counsel in this case. (Doc. 14). On March 17, 2009, Petitioner filed a Motion of Objection to Respondent s Answer to Petitioner s Habeas Corpos (sic), combined with a Motion to Stay Proceedings Until Defect 6

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 7 of 17 of Service Correction and a Motion for Enlargement of Time to Reply to Respondent s Answer and Motion to Dismiss. (Doc. 16). Petition attached exhibits to his Motion. (Exs. A, A-2, and B). Petitioner claimed Respondent DA s Answer (Doc. 15) was incomplete because it failed to address the merits of the Habeas Petition. However, Respondents were directed by our January 22, 2009 Order to only respond to the exhaustion and timeliness 8 issues. As a result, we denied Petitioner s Doc. 16 Motion with respect to Petitioner s objection to Respondent DA s Response and Petitioner s request to stay all proceedings until Respondent addressed those claims. We granted Petitioner an extension of time to reply to Respondent DA s Response from March 19, 2009 to April 1, 2009 in an Order on March 19, 2009. (Doc. 17). Petitioner failed to file a reply to Respondent DA s Response. The Habeas Petition is presently ripe for disposition with respect to the timeliness and exhaustion issues. 9 III. Discussion. A. Timeliness Previously, we agreed with the Respondent DA regarding his assertion that the present Habeas Petition was timely. (Doc. 17, p.2). However, upon our review of the entire record and an independent review of the Pennsylvania Judiciary s Web Application Portal found at http://ujsportal.pacourts.us, we now find that Petitioner s Habeas Petition was not timely filed. 8 We noted in our January 22, 2009 Order that Respondent need not address the merits of Petitioner s habeas claims in his response, since the Court would first determine if the Petition was timely and if exhaustion of state court remedies as to all habeas claims was accomplished. 9 The undersigned has been assigned this case for issuance of Report and Recommendation pursuant to 28 U.S.C. 636(b)(1). 7

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 8 of 17 The one-year period in which Petitioner could seek federal habeas relief began to run on September 12, 2006, one day after Petitioner discontinued his direct appeal of his judgment of sentence to the Pennsylvania Superior Court. Petitioner timely filed a notice of appeal with the Pennsylvania Superior Court, but he then discontinued his appeal. Thus, we do not count any of the time towards Petitioner s AEDPA statute of limitations when his direct appeal to the Pennsylvania Superior Court was pending. However, we do not give Petitioner an additional 30 days with respect to his statute of limitations after he discontinued his direct appeal. Under Pennsylvania law, a judgment becomes final thirty days after it is entered, if a defendant doesn t file a post-trial motion or notice of appeal. See Pa. R.Crim. P. 720(a). Merritt v. Klem, 2007 WL 257299, *4 (M.D. Pa.)(citation omitted). Also, pursuant to 28 U.S.C. 2244(d)(1)(A), the statute of limitations runs from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. While our Petitioner timely filed both a post-trial motion and a notice of appeal, he discontinued his appeal on September 11, 2006. Thus, Petitioner s judgment of conviction became final on September 11, 2006, when his direct appeal was concluded. The AEDPA statute of limitations began to run on September 12, 2006, since Petitioner had no properly filed appeal pending with the state courts at this time. The statute of limitations ran from September 12, 2006 to October 29, 2006 (i.e. 47 days), the day before Petitioner timely filed his PCRA Petition. The statute of limitations was tolled from October 30, 2006, the day Petitioner timely filed his PCRA Petition, through December 28, 2007, when the Pennsylvania Superior Court affirmed the trial court s dismissal of Petitioner s PCRA Petition. The statute of limitations ran again on January 28, 2008, 30 days after the Superior Court s decision, and Petitioner had 318 days left on his AEDPA 8

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 9 of 17 10 statute of limitations. See Pa. R.App. P. 1113(a)(Petitioner had 30 days to file a Petition for Allowance of Appeal in the Pennsylvania Supreme Court). Respondent DA and Petitioner both state that Petitioner filed a Petition for leave to file a Petition for Allowance of Appeal nunc pro tunc with the Pennsylvania Supreme Court regarding the December 28, 2007 decision of the Superior Court, however no date is stated with respect to when this document was filed. The Pennsylvania Courts Web site shows that Petitioner filed his Nunc Pro Tunc Petition on March 14, 2008. See http://ujsportal.pacourts.us. Petitioner s Petition for Allowance of Appeal to the Pennsylvania Supreme Court regarding the December 28, 2007 decision of the Superior Court was due on January 28, 2007, 30 days following the Superior Court s decision. See Pa. R.App. P. 1113(a). Both parties state that Petitioner s Nunc Pro Tunc Petition for Allowance of Appeal was denied by the Pennsylvania Supreme Court on August 13, 2008. (Doc. 1, p. 6 and Doc. 15, p. 4). The Web site confirms this date. Notwithstanding Petitioner s Nunc Pro Tunc Petition for Allowance of Appeal, we do not find that Petitioner s untimely attempt to appeal the dismissal of his PCRA Petition to the Pennsylvania Supreme Court tolls his statute of limitations since it was not properly filed, i.e. it was untimely. See Barr v. DiGugleilmo, 2008 WL 2310621 (E.D. Pa.) (holding that if a petitioner files an untimely application and the state court dismisses it as time-barred, then it is not deemed to be a properly filed application for tolling purposes); See also Merrit v. Blaine, 326 F.3d 157 (3d Cir. 2003); Merritt v. Klem, 2007 WL 257299, *4. limitations. 10 As stated above, 47 days had already elapsed on the AEDPA statute of 9

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 10 of 17 As stated, Petitioner s statute of limitations began to run again on January 28, 2008, with 318 days remaining. Thus, on January 31, 2008, four (4) days had expired. Twenty-nine 11 (29) days expired in February 2008 ; 31 days expired in March 2008; 30 days expired in April 2008; 31 days expired in May 2008; 30 days expired in June 2008; 31 days expired in July 2008; 31 days expired in August 2008; 30 days expired in September 2008; 31 days expired in October 2008; and 30 days expired in November 2008. Therefore, on December 1, 2008, ten (10) days remained for Petitioner to timely file his Habeas Petition. Thus, Petitioner s one-year statute of limitations expired on December 10, 2008. Petitioner did not file his present Habeas Petition until December 30, 2008. (Doc. 1, 12 p. 15). His Habeas Petition was due by December 10, 2008. As a result, we now disagree with Respondent DA that Petitioner s Habeas Petition is timely under the AEDPA. (Doc. 15, p. 3). We shall recommend that since Petitioner s Habeas Petition was not timely filed within the one-year AEDPA statute of limitations, it should be dismissed unless the statute of limitations should be equitably tolled. See Merritt v. Klem, supra. We must now consider if the standard for equitable tolling is met in this case. In Stauffer v. Bell Atlantic, 2002 WL 32349886, *5, n. 4 (E.D. Pa.), the Court stated, There are three principal situations in which equitable tolling may be applied: (1) where defendant has actively misled the plaintiff respecting the plaintiff s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; 11 February 2008 was a leap year. 12 Under the Mailbox Rule, we use the date Petitioner executed his Habeas Petition. See Houston v. Lack, 487 U.S. 266, 276 (1988); Alexander v. Williamson, 2009 U.S. App. LEXIS 8079 (3d Cir. Pa. Apr. 16, 2009). Regardless of the fact that Petitioner signed his Habeas Petition on December 30, 2008, his Habeas Petition is not timely. 10

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 11 of 17 or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum. Shiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Merritt v. Klem, 2007 WL 257299, *6. (Equitable tolling is proper when a petitioner has, in some extraordinary way, been prevented from asserting his or her own rights and the petitioner has been reasonably diligent in investigating and bringing the claims asserted. )(citation omitted). Petitioner Bradley does not offer any factual support to show that any of these situations apply. Petitioner does not assert any extraordinary circumstance warranting equitable tolling. Thus, we find that Petitioner s AEDPA statute of limitations should not be equitably tolled. B. Exhaustion It is clear that the only issue Petitioner raised on (collateral) appeal in state court, and hence, the only issue that has been exhausted, is his Unlawfully Induced Guilty Plea claim. Petitioner s Exhibits, including his own brief to the Pennsylvania Superior Court, substantiate the fact that exhaustion has not been completed regarding Petitioner s other three habeas claims since Petitioner did not raise on appeal these issues regarding the Ineffectiveness of Trial Counsel and Appellate Counsel, Prosecutorial Misconduct and Unlawfully Induced Sentence claims. Rather, as stated, the only issue that was reviewed by the Pennsylvania Superior Court was: WHETHER THE [PCRA] COURT SHOULD HAVE GRANTED [PETITIONER S] PETITION FOR POST-CONVICTION COLLATERAL RELIEF ON THE BASIS OF EVIDENCE IN THE RECORD THAT [PETITIONER S] GUILTY PLEAS WERE IMPROPERLY INDUCED BY TRIAL COUNSEL AND THEREFORE INVOLUNTARY AND RENDERED INVALID. (See Respondent DA s Exhibit A, Doc. 15, - Bradley Brief to the Pennsylvania Superior Court, Doc. 5, December 28, 2007 Memorandum of Pennsylvania Superior Court, p. 4). 11

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 12 of 17 Under 28 U.S.C. 2254(b)(1) [a]n 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. An applicant shall not be deemed to have exhausted the remedies available in the court of the State, within the meaning of this section, if he has the right under the law of the state to raise, by any available procedure, the question presented. 28 U.S.C. 2254(c). As the Court stated in Bentley v. Tennis, 2007 U.S. Dist. LEXIS 88174, 5-6 (M.D. Pa. Nov. 30, 2007): The threshold inquiry in the exhaustion analysis is whether the claims asserted in the habeas corpus petition have been fairly presented to the state courts. Picard v. Conner, 404 U.S. 270, 274 (1971). Fair presentation requires that the substantial equivalent of both the legal theory and the facts supporting the federal claim are submitted to the state courts, and the same method of legal analysis applied in the federal courts must be available to the state courts. Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997). The exhaustion requirement rests upon the principles of comity and judicial economy [and] provides state courts with an initial opportunity to consider and correct alleged violations of prisoners rights without disruption from the federal courts. Hankins v. Fulcomer, 941 F.2d 246, 249 (3d. Cir. 1991). In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court adopted what it termed a total exhaustion rule to accommodate the various interests in situations such as this where a Petition contains an exhausted claim with several unexhausted claims. This type of petition has been deemed a mixed Petition and is subject to dismissal. Speaking through Justice O Conner, the Court said:...our interpretation of Section 2254 (b) provides a simple and clear instruction to potential Litigants: before you bring any claims to Federal Court, be sure that you first have taken each one to State Court... 12

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 13 of 17 Rose, 455 U.S. at 520. Rather than increasing the burden on the Federal Courts, strict enforcement of the exhaustion requirement will encourage habeas Petitioners to exhaust all their claims in State court and to present the Federal Court with a single habeas petition. To the extent that the exhaustion requirement reduces piecemeal litigation, both the Courts and the prisoners should benefit, for as a result the District Court will be likely to review all of the prisoner s claims in a single proceeding, thus providing for a more focused and thorough review. The Third Circuit has subsequently followed the United States Supreme Court s holding in Rose and has consistently dismissed mixed Petitions such as the one Petitioner Bradley brings in this case. See Lambert v. Blackwell, 134 F.3d 506 (3d. Cir. 1997). See also Doctor v. Walters, 96 F.3d 675 (3d. Cir. 1996). If Petitioner s Habeas Petition was timely filed with this Court, it would be recommended that the present Habeas Petition be either stayed or dismissed without prejudice to re-file it after Petitioner completed exhaustion of his appeals regarding his challenge to his July 17, 2006 state court judgment of sentence. As stated, Petitioner s collateral appeal of the PCRA Court s decision to the Pennsylvania Superior Court clearly raised only one of the four claims Petitioner is asserting in his Habeas Petition. Petitioner failed to pursue his direct appeal with the Pennsylvania Superior Court. Thus, Petitioner has not allowed the state appellate court to consider the remaining three unexhausted claims he seeks to raise in his Habeas Petition. However, there is no reason for the District Court to stay Petitioner s 2254 Habeas Petition. Based on the circumstances of this case, Petitioner is already precluded from filing his Habeas Petition with this Court since his AEDPA statute of limitations expired before it was filed. As discussed above, Petitioner s statute of limitations expired on December 10, 13

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 14 of 17 2008, 20 days before he filed his Habeas Petition. We have found that Plaintiff is not entitled to equitable tolling of the statute of limitations. Thus, there is no reason to stay Petitioner s Habeas Petition while he attempts to exhaust his state court remedies with respect to his three unexhausted habeas claims. Ordinarily, a state prisoner must exhaust his state court remedies before the federal courts consider the claims. 28 U.S.C. 2254(b); Rose, 455 U.S. at 515-16. As the Third Circuit stated: Exhaustion, however, is not a jurisdictional matter but a matter of comity. See Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994). Federal courts need not defer to the state judicial process when there is no appropriate remedy at the state level or when the state process would frustrate the use of an available remedy. Id.; 28 U.S.C. 2254(b)(1)(B). Lee v. Stickman, 357 F. 3d 338, 341 (3d Cir. 2004). See also O Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999); Parker, 429 F.3d 61-62. In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held that it is within a district court s discretion to stay a mixed habeas petition and hold it in abeyance while the petitioner exhausts his claims. However, it was cautioned that [s]tay and abeyance, if employed too frequently, has the potential to undermine the purposes of the AEDPA: reducing delays in the execution of sentences, encouraging petitioners to seek collateral state relief in the first instance, and giving petitioners an incentive to exhaust all their claims in state court prior to filing their federal petition. Rhines, 544 U.S. at 277. Petitioner has not shown good cause for his failure to exhaust all of his habeas claims. Moreover, the Pennsylvania Superior Court found the one claim Petitioner did raise in his collateral appeal to be lacking in merit. Regardless, since Petitioner s Habeas Petition is not 14

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 15 of 17 timely, there is no reason to stay this case. As a result, it will be recommended that a dismissal of this case, as opposed to a stay, is warranted. IV. Recommendation. Based on the foregoing, we respectfully recommend that Petitioner s Habeas Petition be dismissed since it is untimely. s/ Thomas M. Blewitt THOMAS M. BLEWITT United States Magistrate Judge Dated: June 19, 2009 15

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 16 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA RONNIE BRADLEY, : CIVIL ACTION NO. 4:CV-09-0008 : Petitioner : (Judge Jones) : v. : (Magistrate Judge Blewitt) : COMMONWEALTH OF : PENNSYLVANIA, : et. al., : : Respondents : NOTICE NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated June 19, 2009. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides: 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 ten (10) 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 16

Case 4:09-cv-00008-JEJ Document 18 Filed 06/19/2009 Page 17 of 17 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. s/ Thomas M. Blewitt THOMAS M. BLEWITT United States Magistrate Judge Dated: June 19, 2009 17