360 F.3d 146 | 3rd Cir. | 2004
GENERAL ROTH, Circuit Judge
_______________ Petitioner Paul David Crews, who faces a death sentence for a double- Appeal from the United States District murder, appeals the dismissal without Court for the Middle District of prejudice of his petition for a writ of Pennsylvania habeas corpus. Crews concedes that the (D.C. Civil Action No.98-cv-01464) petition is a mixed petition ( i.e. , it contains District Judge: Hon. A. Richard Caputo both exhausted and unexhausted claims), so that the District Court lacks the power to grant relief under the Antiterrorism and
Argued on February 27, 2003 Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § Before: ALITO, ROTH AND BARRY, 2254(b)(1). However, he argues that, Circuit Judges instead of dismissing the petition without prejudice, the District Court should hold it in abeyance while he attempts to exhaust
(Opinion filed: March 4, 2004) his unexhausted claims in state court. He contends that dismissing the petition without prejudice has created the personal articles that belonged to the possibility that he will be time-barred victims. The police also found in Crews’ under AEDPA from returning to federal possession, a handgun, which a ballistics court after his attempt to exhaust his expert testified was the handgun that killed unexhausted claims, even though his initial Hood, and a knife with blood on it. The habeas petition was timely under AEDPA. blood on the knife matched LaRue’s blood We agree with Crews and will reverse the type. Other witnesses identified objects District Court’s dismissal of the petition found at the murder scene and along the and remand it to the District Court. trail south of the murder scene as
belonging to, or resembling property I. Facts and Procedural History owned by, Crews. The following facts, which are not FBI DNA expert Dr. Deadman in dispute, are drawn from the testified that Crews’ DNA patterns Pennsylvania Supreme Court’s decision in matched the DNA patterns of semen Commonwealth v. Crews , 640 A.2d 395 samples obtained from LaRue’s vagina in (Pa. 1994). three of four genetic loci. He did not
testify as to the statistical probability that On September 13, 1990, two hikers, such a match could occur by chance. Geoffrey Hood and Molly LaRue, were Crews’ expert, Dr. Acton, criticized any killed at an overnight shelter on the conclusion reached without a statement of Appalachian Trail in Perry County, the probability that the match occurred by Pennsylvania. LaRue was bound, raped, chance. The jury found Crews guilty on and stabbed. She died approximately two counts of first degree murder, and the fifteen minutes after receiving a knife trial proceeded to the capital sentencing wound to the neck. Hood, her boyfriend, phase. died five to eight minutes after being shot three times with a revolver. A week after During the capital sentencing phase, the killings, Crews was arrested. a physician for the prosecution testified
that LaRue’s hands had been tied before At trial, witnesses testified that two she was killed. Crews presented evidence days before the murders, Crews visited a that he had no prior convictions. He also library in East Berlin, Pennsylvania, presented his employer, who testified seeking a map of the Appalachian Trail. about Crews’ work experience and Closer to the trail, Crews asked other drinking habits. Finally, he presented a hikers for directions to the trail. Other psychiatrist, who testified that Crews had witnesses observed him heading south on a schizoid personality and suffered from the trail after the killings, wearing gear a n org anic agg ressive synd rom e that belonged to the victims. When aggravated on the day of the killings by arrested, Crews possessed numerous alcohol and cocaine.
Pennsylvania Supreme Court affirmed his The trial judge instructed the jury conviction on April 21, 1994. Crews , 640 t h a t t h e p o t e n t i a l a g g r a v a t i n g A.2d at 395. Crews’ motion for circumstances pertaining to Hood’s murder reargument was denied on May 31, 1994, were that the killing occurred during the and he did not petition the United States perpetration of a robbery, there was a Supreme Court for a writ of certiorari . grave risk of death to another, and Crews was convicted of another murder. In the On January 13, 1997, Crews filed L a R u e m u r d e r , th e aggr avatin g his first petition for relief under the circumstances submitted to the jury were Pennsylvania Post Conviction Relief Act that the killing occurred during the (PCRA), 42 Pa. Cons. Stat. Ann. § 9541, perpetration of a rape, the killing was et seq . The Court of Common Pleas committed by torture, and Crews was dismissed the p etitio n, a nd th e convicted of another murder. The Pennsylvania Supreme Court affirmed on mitigating circumstances submitted to the August 20, 1998. Commonwealth v. jury regarding both killings were that Crews , 717 A.2d 487 (Pa. 1998). Crews Crews did not have any prior convictions, did not seek rea rgument in th e he was under extreme mental or emotional Pennsylvania Supreme Court or petition disturbance, his capacity to appreciate or the United States Supreme Court for a writ conform his conduct was substantially of certiorari . impaired, he acted under extreme duress, and any other mitigating evidence On September 2, 1998, Crews filed concerning petitioner’s character and a document entitled “Motion for a Stay of record or the circumstances of his offense Execution and Request for Appointment of that the jury considered relevant. Counsel under 28 U.S.C. § 2251, 21
U.S.C. § 848(q), and McFarland v. Scott The jury found two aggravating and request for in Forma Pauperis Status” circumstances in the Hood murder (grave in the United States District Court for the risk of death to another and conviction of Middle District of Pennsylvania. On another murder) and all three aggravating September 24, 1998, the District Court circumstances in the LaRue murder. In granted Crews in forma pauperis status, both murders, the jury found that appointed counsel, denied Crews’ motion aggravating circumstances outweighed any for a stay of execution based on the mitigating ones and returned verdicts of Commonwealth’s representation that a death. The court immediately sentenced death warrant would not issue, and ordered petitioner to two consecutive death Crews to file a habeas petition by March sentences. 15, 1999. In compliance with this order,
Crews filed a habeas petition on March 15, Following his conviction and 1999. On November 17, 1999, the District sentence, Crews appealed. The Court determined that the habeas petition was a mixed petition, dismissed it without dismissal “could jeopardize the timeliness prejudice to allow exhaustion, and denied of a collateral attack,” a district court a Certificate of Appealability. Crews would abuse that discretion if it were not appealed the dismissal, and we granted a to offer to the petitioner the opportunity of Certificate of Appealability on April 25, staying, rather than dismissing, the 2002. petition. See Zarvela v. Artuz , 254 F.3d
374, 382 (2d Cir.), cert. denied , 534 U.S. On February 18, 1999, while his 1015 (2001). habeas corpus petition was pending before the District Court, Crews filed a second III. Discussion PCRA petition in the Court of Common Pleas, raising the unexhausted claims. On AEDPA requires a state prisoner to file a petition for federal habeas corpus August 28, 2002, the Court of Common Pleas granted the Commonwealth’s motion relief within one year of the occurrence of to dismiss the second PCRA petition as several events, the only event relevant to untimely. That ruling is currently on this appeal being “the date on which the appeal. judgment became final by the conclusion
of direct review or the expiration of the II. Jurisdiction and Standards of time for seeking such review.” 28 U.S.C. Review § 2244(d). The purpose of this requirement is to further the interest in The District Court had jurisdiction finality of state court judgments by over this habeas corpus petition pursuant ensuring rapid federal review of to 28 U.S.C. § 2254(a). We have constitutional challenges. See Woodford v. jurisdiction pursuant to 28 U.S.C. §§ 1291, Garceau , 123 S.Ct. 1398 (2003); Duncan 2253. We exercise plenary review over v. Walker , 533 U.S. 167, 179 (2001). statute of limitations issues. See Nara v. Since Crews’ conviction became final Frank , 264 F.3d 310, 314 (3d Cir. 2001). prior to April 24, 1996, the effective date Whether a district court has the power to of AEDPA, he had a one-year grace stay a habeas petition is a question of law, period, until April 23, 1997, to file his and thus review is plenary. See United habeas corpus petitions. See Nara v. States v. Higgins , 967 F.2d 841, 844 (3d Frank , 264 F.3d 310, 315 (3d Cir. 2001). Cir. 1992). While we have not addressed the standard of review for a district court’s Under AEDPA’s statutory tolling decision to dismiss a mixed petition rather provision, the limitations period is tolled than to grant a stay, as we discuss below, for “the time during which a properly filed we now adopt an abuse of discretion application for State post-conviction or standard. However, for the reasons we other collateral review with respect to the state below, in view of the time limitations pertinent judgment or claim is pending . . imposed by the AEDPA, where outright ..” 28 U.S.C. § 2244(d)(2). It is undisputed that Crews qualifies for until March 15, 1999, to file his habeas
corpus petition. [2] He filed his habeas statutory tolling for the period from January 13, 1997, to August 20, 1998, corpus petition on March 15, 1999. Thus, because his properly filed first PCRA his habeas corpus petition was timely. Petition was pending during this period. [1] Since 264 days of Crews’ limitations The petition, however, is a mixed period passed prior to the filing of his first one. Under AEDPA, subject to certain PCRA petition, he had 101 days following exceptions, “[a]n application for a writ of the Pennsylvania Supreme Court’s denial habeas corpus on behalf of a person in of his first PCRA petition, or until custody pursuant to the judgment of a November 30, 1998, to file his petition for State court shall not be granted unless it a writ of habeas corpus. He satisfied this appears that – (A) the applicant has deadline by filing his September 2, 1998, exhausted the remedies available in the application, in response to which the courts of the State . . ..” 28 U.S.C. § District Court granted him an extension 2254(b)(1). This exhaustion rule promotes
“comity in that it would be unseemly in our dual system of government for a federal district court to upset a state court [1] Crews did not move for reconsideration conviction without an opportunity to the of the denial of his first PCRA petition in the Pennsylvania Supreme Court, or petition the United States Supreme Court state courts to correct a constitutional establish an entitlement to statutory or violation.” Walker , 533 U.S. at 179. equitable tolling for the time during which Since the petition contains unexhausted his first federal habeas and second state claims, the District Court dismissed it PCRA petitions were pending. See Carey without prejud ice to re file after v. Saffold , 536 U.S. 214, 225-26 (2002); exhaustion, concluding that Rose v. Lundy , Walker , 533 U.S. at 180-83, 192; Artuz v. 455 U.S. 509 (1982), compelled dismissal. Bennett , 531 U.S. 4, 8-10 (2000); Merritt
v. Blaine , No. 01-2455 (3d Cir. 2003); In Lundy , the Supreme Court held Nara , 264 F.3d at 315-16; Fahy v. Horn , that “because a total exhaustion rule 240 F.3d 239, 245 (3d Cir.), cert. denied , promote s c o m i t y a n d d o e s not 534 U.S. 944 (2001); Banks v. Horn , 271 unreasonably impair the prisoner’s right to F.3d 527, 534-35 (3d Cir. 2001), rev’d on
other grounds , 536 U.S. 266 (2002). [3] relief, we hold that a district court must dismiss habeas petitions containing both unexhausted and exhausted claims.” 455 Staying a habeas petition pending U.S. at 522. However, in relying on exhaustion of state remedies is a Lundy , the District Court did not fully permissible and effective way to avoid appreciate that AEDPA, which was barring from federal court a petitioner who enacted after Lundy , “has altered the timely files a mixed petition. In Walker , context in which the choice of mechanisms four Justices indicated that district courts for handling mixed petitions is to be should stay mixed petitions where there is made.” Zarvela , 254 F.3d at 379. By a danger that dismissal will deny a introducing a time limit, AEDPA calls into petitioner federal review. In a concurring doubt the conclusion in Lundy that opinion, Justice Stevens, joined by Justice dismissal of a mixed petition does not Souter, stated that: “unreasonably impair the prisoner’s right although the Court’s pre- to relief,” Lundy , 455 U.S. at 509, because AEDPA decision in Rose v. in situations such as the present one, Lundy , 455 U.S. 509 (1982), AEDPA’s limitations period may act to prescribed the dismissal of deprive a petitioner of a federal forum if dismissal of the habeas petition is required. See Zarvela , 254 F.3d at 379. [3] Crews also suggests that he might be entitled to equitable tolling for the time
Since Crews’ limitations period prior to the filing of his first PCRA expired on November 30, 1998, he will be petition because he was incompetent to file time-barred from returning to federal court a petition by himself. The parties agree if his petition is dismissed unless he can that it is premature to resolve this issue. It demonstrate that he is entitled to equitable is sufficient to note that this is another or statutory tolling. It is not clear, ground Crews may raise when he seeks to however, that Crews will be able to return to federal court. federa l habeas corpus determine whether to stay or dismiss a p e t i t i o n s c o n t a i n i n g mixed petition, staying the petition is the unexhausted claims, in our only appropriate course of action where an post-AEDPA world there is outright dismissal “ ‘could jeopardize the no reason why a district timeliness of a collateral attack.’ ” court should not retain Zarvela , 254 F.3d at 380 (quoting j u r i s d i c t i o n o v e r a Freeman v. Page , 208 F.3d 572, 577 (7th meritorious claim and stay Cir.), cert. denied , 531 U.S. 946 (2000)); further proceedings pending see also Neverson v. Bissonnette , 261 F.3d the complete exhaustion of 120, 126 n. 3 (1st Cir. 2001); Mackall v. state remedies. Indeed, Angelone , 131 F.3d 442, 445 (4th Cir. there is every reason to do 1998), cert. denied , 522 U.S. 1100 (1998); so when AEDPA gives a Brewer v. Johnson , 139 F.3d 491, 493 (5th district court the alternative Cir. 1998); Palmer v. Carlton , 276 F.3d of simply denying a petition 777, 781 (6th Cir. 2002); Kelly v. Small , containing unexhausted but 315 F.3d 1063, 1070 (9th Cir. 2003) nonmeritorious claims, see (noting that there is a “growing consensus” 28 U.S.C. § 2254(b)(2) that the Zarvela approach is proper). The (1994 ed., Supp. V), and only Circuit to come out the other way is when the failure to retain the Eighth Circuit. See Carmichael v. jurisdiction would foreclose White , 163 F.3d 1044, 1045 (8th Cir. f e d e r a l r e v i e w o f a 1998). However, Carmichael relies on meritorious claim because pre-AEDPA precedent and does not of the lapse of AEDPA’s 1- address the timeliness problems created by year limitations period. AEDPA. See id. (citing Victor v. Hopkins ,
90 F.3d 276, 279-80 (8th Cir. 1996). 533 U.S. at 182-83 (Stevens, J., concurring). Justices Breyer and In Zarvela , the court recognized Ginsburg, in dissent, agreed with Justice that the purpose of AEDPA’s limitations Stevens that federal courts should hold period is to further the goal of finality by mixed petitions in abeyance under such avoiding endless delay in deciding circumstances. See id . at 192 (Breyer, J., constitutional challenges to a conviction, dissenting). The Walker majority did not particularly in capital cases. See id . reject this conclusion; it did not reach the However, the Zarvela court found that “the issue. See id . at 181. concern about excessive delays in seeking
exhaustion and in returning to federal Virtually every other Circuit that court after exhaustion can easily be has considered the issue has held that, dispelled by allowing a habeas petitioner following AEDPA, while it usually is no more than reasonable intervals of time within a district court’s discretion to to present his claims to the state courts and to return to federal court after exhaustion.” where there is a substantial danger that the Id . at 381. The Zarvela court concluded proffered potential harm will occur, the that a reasonable interval normally is 30 petition should be stayed, noting that “[i]f days. See id . a state court has refused to grant a stay
pending its adjudication of a prisoner’s The Commonwealth argues that federal constitutional claims, such action controlling precedent in this Circuit, by the district court would be appropriate.” namely Christy v. Horn , 115 F.3d 201 (3d Christy , 115 F.3d at 207. Cir. 1997), is contrary to the Zarvela line of cases. In Christy , we held that a district The Commonwealth also argues court erred in staying a mixed petition that we should not follow Zarvela because instead of dismissing the petition without the tools of statutory and equitable tolling prejudice because there was no substantial are sufficient to ensure that Crews will not danger that the proffered potential harm be time-barred from returning to federal would occur. See id . at 207. The potential court if he has acted with reasonable harm in Christy was execution, see id ., diligence in bringing the claims. while the potential harm in the present However, where, as here, outright case is being barred by time limitations dismissal could jeopardize the timeliness from returning to federal court. Even of a habeas petition, there are two assuming that Christy is applicable in advantages to staying a mixed petition, cases involving other types of potential rather than dismissing it and relying on d a n g e r s , C h r i s t y i s f a c t u a l l y tolling to determine if a subsequent distinguishable from the present case. In petition is timely. Christy , a death warrant had not been issued and the General Counsel to the First, a stay preserves judicial Governor of Pennsylvania assured the resources. While there is an additional Christy Court via letter that Christy would cost to district courts in terms of managing not be executed during the pendency of his their dockets, this cost is more than off-set state court proceedings. Thus, there was by the savings in the amount of time that no substantial danger of execution. See id . courts will have to spend analyzing at 207. t i m e l i n e s s i s sue s. U n d e r t h e
Commonwealth’s proposed approach, However, as discussed above, in the when a district court decides whether to present case, there is a substantial danger dismiss a mixed petition, it must determine that Crews will be time-barred from the likelihood that a petitioner will be able returning to federal court because his to exhaust his unexhausted claims in state petition will be filed after the expiration of court. This determination is easier now the limitations period and it is not clear that the Pennsylvania courts have ruled that he will be entitled to tolling. Christy that relaxed waiver is no longer available, suggests that, under such circumstances but there is still the issue whether a petitioner may be able to qualify for one of AEDPA limitations period may not be the exceptions to PCRA’s time-limit. See tolled. He then may be time-barred from 42 Pa.C.S. § 9545; Albrecht , 720 A.2d at raising even his exhausted claims in 693. Further, under the Commonwealth’s federal court unless he can demonstrate proposed approach, a court will have to that he is entitled to tolling. If, however, a engage in the fact-intensive analysis of petitioner does not attempt exhaustion, he whether a petitioner acted with reasonable foregoes the possibility of raising his diligence when the petitioner seeks to unexhausted claims. See Lundy , 455 U.S. return to federal court. On the other hand, at 510, 520. It is not always easy, even for under the Zarvela approach, when a experienced practitioners, to determine petitioner seeks to return to federal court, where a claim will fall in this mix. the initial timeliness of the habeas petition will have already been determined. The Commonwealth argues that
AEDPA requires a petitioner like Crews to The second advantage of staying a make a strategic decision: he must either mixed petition is that a petitioner knows abandon his unexhausted claims or else before he chooses to attempt to exhaust his return to state court to attempt to exhaust unexhausted claims in state court that he them at some risk of losing the opportunity will still have a federal forum to review his for federal review entirely. However, exhausted claims, so long as he acts nothing in AEDPA prohibits a district diligently in seeking state review of the court from avoiding this dilemma by issues. [4] unex haus ted Un der th e staying a timely mixed petition pending Commonwealth’s proposed approach, diligent exhaustion of unexhausted claims. however, a petitioner must guess whether AEDPA requires only that a petition be he will benefit from attempting to exhaust filed in federal district court before the end his unexhausted claims. If the claims are of the limitations period, 28 U.S.C. § timely in state court, he can exhaust them. 2244(d), and not be granted until all If they are not timely, however, the claims contained in the petition have been
exhausted at the state level, 28 U.S.C. § 2254(b)(1). Thus, a habeas petition may be filed but not granted prior to total [4] As noted in Zarvela , in order to avoid exhaustion of state remedies, and a stay unnecessary delay by the petitioner in pending exhaustion is perfectly consistent pursuing the unexhausted claims in state with these rules. court, the district court “should condition the stay on the petitioner’s initiation of
The Court in Lundy required exhaustion within a limited period, dismissal of mixed petitions to ensure that normally 30 days, and a return to the a district court would not grant relief on district court after exhaustion is unexhausted claims. The Court explained completed, also within a limited period, that “one court should defer action on normally 30 days.” 254 F.3d at 381. causes properly within its jurisdiction until 254 F.3d at 380. If a habeas petition is the courts of another sovereignty with stayed, the petitioner should be given a concurrent powers, and already cognizant reasonable interval, normally 30 days, to of litigation, have had the opportunity to file his application for state post- pass upon the matter.” Lundy , 455 U.S. at conviction relief, and another reasonable 518. However, a stay achieves this goal as interval after the denial of that relief to effectively as a dismissal, because a stay is return to federal court. See id . If a “a traditional way to ‘defer’ to another petitioner fails to meet either time-limit, court ‘until’ that court has had an the stay should be vacated nunc pro tunc . opportunity to exercise its jurisdiction over See id . a habeas petition’s unexhausted claims.” Zarvela , 254 F.3d at 380. We note that while these two
“reasonable intervals” may appear to We will, therefore, follow Zarvela . enlarge the one-year limitations period for We hold that district courts have the some petitioners, technically these discretion to stay mixed habeas corpus intervals are only available after a petition petitions but that, as in this case, when an has been timely filed. See id. at 382. outright dismissal could jeopardize the Further, we agree with the court in Zarvela timeliness of a collateral attack, a stay is that the only appropriate course of action. [5] See such brief additional time is
consistent with the purpose of AEDPA’s limitation period, which was to make [5] We diverge from Zarvela in one sure that a state prisoner respect. The court in Zarvela held that does not take more than one only exhausted claims should be stayed, year after his conviction and that unexhausted claims should be becomes final to present his dismissed, subject to reinstatement should federal claim . State the petitioner successfully exhaust them. prisoners should have the See 254 F.3d at 380. We hold that all of full year allowed them by the petitioner’s claims should be stayed, Congress to consider and and any claims that remain unexhausted prepare their federal habeas after the petitioner returns to federal court should be dismissed at that juncture. If the unexhausted claims are dismissed initially subject to reinstatement, the petitioner that a petitioner cannot amend a petition might use the re-submission as an after AEDPA’s statute of limitations has opportunity to amend his petition to add run to add an entirely new claim). Our new claims beyond the one-year filing modification of the Zarvela rule will period. See United States v. Thomas , 221 conserve judicial resources by avoiding F.3d 430, 436-37 (3d Cir. 2000) (holding litigation over this issue.
petitions, and, if it turns out that the prese nc e of unexhausted claims and the requirements of federal law require a round trip to and f r o m s t a t e c o u r t t o accomplish exhaustion, brief intervals to meet such requirements should not be counted against that one- year period. Prompt action by the petitioner to initiate exhaustion and return to federal court after its completion serves as the functional equivalent of the “reasonable diligence” that has long been a prerequisite to equitable tolling of limitations periods.
Id ., 254 F.3d. at 382 (emphasis added); see also Walker , 533 U.S. at 183 (Stevens, J., concurring) (holding that it is reasonable to believe “that Congress could not have intended to bar federal habeas review for petitioners who invoked the court’s jurisdiction within the 1-year interval prescribed by AEDPA.”
IV. Conclusion For the reasons stated above, the District Court’s dismissal of petitioner’s habeas corpus petition is reversed, and this case is remanded for further proceedings consistent with this opinion.
NOTES
[2] In for a writ of certiorari . Therefore, there is the District Court, the no issue as to whether AEDPA’s Commonwealth did not object to the limitations period should be statutorily court’s granting of an extension of time to tolled for the period during which a motion file the petition or argue that the petition is for reconsideration and/or a petition for untimely because it was filed within the certiorari was actually pending. See Nara , court’s deadline, but after AEDPA’s 264 F.3d at 319 (suggesting that AEDPA’s deadline. In its response to Crews’ appeal, limitations period is statutorily tolled for t h e C o m m o n w e a l t h , w h i l e n o t the time during which a petitioner actually “condoning” this procedure, does not seeks reconsideration and/or certiorari ). argue that the first petition for habeas Under Nara , an application for state post- corpus was untimely. In any event, the conviction relief is not pending, and thus Commonwealth waived the affirmative AEDPA’s limitations period is not defense that the first petition was untimely statutorily tolled, for the time during which under AEDPA because it did not plead this a petitioner could have sought, but did not defense in the answer or raise it at the actually seek, reconsideration or certiorari . earliest practicable moment thereafter. See See id. at 318-19. Thus, the first PCRA Robinson v. Johnson , 313 F.3d 128, 134, petition statutorily tolled the limitations 137 (3d Cir. 2002), cert. denied 124 S.Ct. period only until August 20, 1998. 48 (2003)
