NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   ____________

                                    No. 16-3521
                                   ____________


                          TODD HYUNG-RAE TARSELLI,
                                              Appellant

                                            v.

                 SUPERINTENDENT GREENE SCI;
   ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA



                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                       (D. C. Civil Action No. 4-13-cv-00939)
                    District Judge: Honorable Matthew W. Brann



                              Argued on May 23, 2017

              Before: HARDIMAN, ROTH and FISHER, Circuit Judges


                           (Opinion filed: March 23, 2018)

Frederick W. Ulrich       [ARGUED]
James V. Wade
Federal Public Defender’s Office
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
                    Counsel for Appellant
James L. McMonagle, Jr. [ARGUED]
Stefanie J. Salavantis
Luzerne County District Attorney’s Office
200 North River Street
Wilkes-Barre, PA 18711
                     Counsel for Appellee


                                    ________________

                                        OPINION*
                                    ________________


ROTH, Circuit Judge:

       Todd Hyung-Rae Tarselli appeals the District Court’s order dismissing, rather than

staying, his petition for habeas relief following the Supreme Court’s decisions in Miller v.

Alabama and Montgomery v. Louisiana. For the reasons set forth below, we will reverse

the dismissal of Tarselli’s petition, as the District Court’s decision was premised on a

misinterpretation of Supreme Court jurisprudence.

                                             I.

       Tarselli pled guilty to first degree murder, robbery, and possession of a prohibited

weapon, committed on November 5, 1992. He was sentenced to life in prison without the

possibility of parole. On June 25, 2012, the Supreme Court decided Miller v. Alabama,

which held that life sentences without the possibility of parole could not constitutionally




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
be imposed on individuals who committed crimes before the age of 18.1 On July 30,

2012, Tarselli filed a pro se petition for relief under Pennsylvania’s Post-Conviction

Relief Act, claiming that he was a minor at the time of his offense. While that petition

was being litigated in state court, Tarselli filed a pro se federal habeas petition on April

15, 2013, in which he also raised an argument for resentencing under Miller. This federal

petition was stayed pending resolution of the state proceedings.2 Tarselli’s state PCRA

petition was subsequently dismissed on two grounds: first, that his petition was facially

untimely,3 and second, that the Miller rule was not retroactive.4 On January 27, 2016, the

Supreme Court ruled that Miller had retroactive effect.5 Accordingly, Tarselli filed a

second PCRA petition in state court on February 16, 2016. On January 25, 2018, that

petition was found by the state court to have been timely as to the claim for resentencing

under Miller. The PCRA proceeding on that ground will proceed to determine whether

Tarselli was 18 at the time of the homicide.6


1
  

(2012).
2
  Initially, Tarselli’s petition was stayed at his request. It was subsequently reopened, but
then administratively stayed along with all other habeas petitions under Miller pending
resolution of the question of retroactivity.
3
  See Commonwealth v. Tarselli, No. 1339 MDA 2013, 

, at *3 (Pa.
Super. Ct. May 14, 2014). Notably, the state court did not address how subsequent
Supreme Court rulings would affect the one-year statute of limitations for purposes of
state post-conviction relief. It appears, however, that Tarselli’s current PCRA petition is
timely, as it was filed “within 60 days of the date the claim could have been presented.”
42 Pa. Cons. Stat. § 9545(b)(2).
4
  Tarselli, 

, at *4.
5
  Montgomery v. Louisiana, 

, 736 (2016).
6
  Tarselli was born in Korea and adopted from a Korean orphanage by an American
couple in 1980. According to his Korean and American birth certificates, which Tarsellli
presented to the court in the PCRA proceeding, his birth date is listed as November 14,
1973. However, in Korea, a child may be considered to be one year old on the day of his
                                                3
       On May 24, 2016, in the federal habeas proceeding, the magistrate judge assigned

to the matter lifted the stay on Tarselli’s petition. Noting that the question of whether

Tarselli was eligible for relief under Miller was being litigated in the state proceeding, the

magistrate judge held that Tarselli had not adequately exhausted his claims before filing

his federal petition. In determining whether to dismiss or stay the federal petition, the

magistrate judge found that “Tarselli’s prompt litigation of his post-conviction claims

based upon Miller and Montgomery in state and federal court has tolled the statute of

limitations and essentially eliminated any concerns that good cause exists to stay this

petition in lieu of dismissal.”7 The magistrate judge also found that it could not

determine whether Tarselli’s claim was potentially meritorious until resolution of the

state proceedings. Over Tarselli’s objection, the District Court adopted the magistrate

judge’s report and recommendation and dismissed the petition without prejudice to refile

after conclusion of the state court proceedings.

       Tarselli now appeals only the District Court’s decision to dismiss, rather than stay,

the instant petition.

                                             II.

       The District Court exercised jurisdiction over Tarselli’s federal habeas petition

pursuant to 28 U.S.C. § 2254(a). Before reaching the merits of Tarselli’s appeal, we must

be satisfied of our own appellate jurisdiction. 28 U.S.C. §§ 1291 and 2253(a) serve as the

bases for appellate jurisdiction over habeas petitions, and both require a “final” order

birth. Tarselli claims that in view of the uncertainty about his exact age, he may have
been less than 18 years old at the time he committed the homicide.
7
  JA 117-18.
                                              4
below. While it is true that “an order dismissing a complaint without prejudice is not a

final order as long as the plaintiff may cure the deficiency and refile the complaint,”8 we

may exercise our appellate jurisdiction “where a claim dismissed without prejudice

cannot be re-filed, such as a claim for which the statute of limitations has run.”9 AEDPA

imposes a one-year statute of limitations on petitions.10 Thus, Tarselli had one year from

the Supreme Court’s decision in Miller to bring his federal claim; absent some form of

tolling, the statute of limitations has run, and the dismissal was a final order.

Accordingly, we must first determine whether Tarselli is entitled to either statutory

tolling or equitable tolling.

                                                A.

       AEDPA provides for statutory tolling of the one-year limitations period for all

“time during which a properly filed application for State post-conviction or other

collateral review . . . is pending[.]”11 Thus, when a petition for state post-conviction

relief is not “properly filed,” a petitioner is not entitled to federal tolling. The Supreme

Court has expressly held that when “the state court reject[s] petitioner’s PCRA petition as

untimely, it [is] not ‘properly filed,’ and he is not entitled to statutory tolling . . ..”12

       Here, the Pennsylvania Superior Court found Tarselli’s first state petition

untimely, as it was filed more than one year after his conviction became final.13


8
  Ahmed v. Dragovich, 

, 207 (3d Cir. 2002).
9
  Doe v. Hesketh, 

, 164 (3d Cir. 2016) (citation omitted).
10
   See 28 U.S.C. § 2244(d)(1)(C).
11
   28 U.S.C. § 2244(d)(2) (emphasis added).
12
   Pace v. DiGuglielmo, 

, 417 (2005).
13
   Tarselli, 

, at *3.
                                                 5
Accordingly, under clear Supreme Court precedent, Tarselli did not “properly file” a

petition for state post-conviction relief, and is not eligible for statutory tolling under

AEDPA.

                                               B.

       To demonstrate an entitlement to equitable tolling, a habeas petitioner must

demonstrate that “some extraordinary circumstance stood in [their] way and prevented

timely filing.”14 This requires “a case-by-case analysis” that depends heavily on the

circumstances surrounding an actual petition.15 Because this is “fact-specific and

depends on the circumstances faced by the particular petitioner[,]”16 we cannot, at this

juncture, say that the circumstances surrounding a hypothetical future petition that

Tarselli may file are sufficiently “extraordinary” to warrant equitable tolling.17

       Even if we were inclined to make such a decision about a hypothetical petition,

however, we are not convinced that Tarselli is entitled to equitable tolling under the

circumstances. Our Court has found that a district court’s errors satisfy the

“extraordinary circumstances” requirement for equitable tolling in only three cases, none

of which exactly support tolling here.




14
   Ross v. Varano, 

, 803 (3d Cir. 2013) (internal quotation marks, citation,
and emphasis omitted). A petitioner must also demonstrate that “he has been pursuing
his rights diligently[.]” 

(citations omitted). The District Court found—and the
parties appear to agree—that Tarselli has done so here.
15
   

n.22.
16
   Munchinski v. Wilson, 

, 331 (3d Cir. 2012).
17
   Ross v. Varano, 

, 803 (3d Cir. 2013) (internal quotation marks, citation,
and emphasis omitted).
                                               6
         In Urcinoli v. Cathel,18 a petitioner timely filed a federal habeas petition

containing both properly exhausted and unexhausted claims. The district court dismissed

the petition in its entirety, reasoning that it lacked jurisdiction over any petition

containing unexhausted claims. After properly exhausting the claims in state court, the

petitioner refiled a federal petition, which the district court dismissed as untimely. We

found that equitable tolling was required because the district court’s dismissal of the

timely, properly exhausted claims in the first petition effectively barred a petitioner who

satisfied his obligations from seeking relief in the federal forum.

         Urcinoli is distinguishable from the case at bar because it rested primarily on the

fact that the district court could have heard the properly exhausted and timely claims in

the first petition. The petitioner had not failed to satisfy AEDPA, and he was only

foreclosed from federal relief because of the district court’s dismissal of properly raised

claims. Here, on the other hand, both parties agree that the District Court properly found

that it could not hear Tarselli’s Miller claim. Thus, Tarselli is not in the same position as

the petitioner in Urcinoli, as he has failed to satisfy AEDPA.

         Munchinski v. Wilson19 is the closest analogue to Tarselli’s case. There, a

petitioner filed his first state PCRA petition, which was denied. He then filed a federal

habeas petition, during the pendency of which he sought to file a second state PCRA

petition with additional claims. The state court dismissed his PCRA petition, erroneously

reasoning that it lacked jurisdiction over the petition while his federal petition remained


18
     

(3d Cir. 2008).
19
     

.
                                                7
pending. Once this Court finally disposed of the federal petition, the petitioner attempted

to refile his amended state PCRA petition; the state court found this third petition

untimely, which made the entire pendency of his federal petition ineligible for statutory

tolling. We applied equitable tolling to the petitioner’s next federal petition, citing

Urcinoli. In doing so, we reasoned that the state court’s mistake of law (in determining

that it lacked jurisdiction) coupled with its implication that the petitioner could reassert

his claims once the federal appeal was resolved constituted “extraordinary

circumstances.” We approvingly cited this analysis in dictum in Jenkins v.

Superintendent of Laurel Highlands.20

         Munchinski and the dictum in Jenkins are also distinguishable from this case

because here, the District Court did not commit any legal error in analyzing whether it

could hear Tarselli’s petition. The parties agree that Tarselli’s Miller claim has not been

properly exhausted, and that AEDPA bars federal courts from exercising jurisdiction over

unexhausted claims. Thus, at least one of the rationales underlying Munchinski and its

reading of Urcinoli is not applicable here.

         Finally, Urcinoli, Munchinski, and Jenkins share another potentially important

feature that is lacking in this case: at the time of the courts’ errors in those cases, the

petitioners’ one-year window for filing a federal petition had not yet run. Thus, all three

cases relied in large part on the fact that the courts’ errors actually operated to prevent the

petitioners from timely pursuing their claims. Here, on the other hand, there is no

question that Tarselli’s one-year window had closed by the time the District Court made

20
     

, 89 (3d Cir. 2013).
                                               8
its erroneous calculation of statutory tolling. Even absent the mistake, therefore, Tarselli

would not have been able to pursue a federal remedy.

       For these reasons, we are not persuaded that equitable tolling applies to Tarselli’s

case with sufficient certainty to defeat our jurisdiction here. Because we must give 28

U.S.C. § 1291 “a practical construction when warranted[,]”21 we therefore may exercise

our jurisdiction over this appeal.

                                               III.

       We review a district court’s decision to dismiss, rather than stay, a habeas petition

for abuse of discretion.22 To establish entitlement to a stay, rather than dismissal, of an

unexhausted habeas petition, a petitioner must satisfy three requirements: (1) “good

cause,” (2) “potentially meritorious claims,” and (3) “a lack of intentionally dilatory

litigation tactics.”23 The District Court24 determined that Tarselli failed to establish the

first and second prongs of this test. First, it found no good cause because Tarselli’s

diligent litigation “has tolled the statute of limitations . . ..”25 Further, the District Court

held that Tarselli had not raised a potentially meritorious claim given “the current

incomplete, and ambiguous fact record” regarding Tarselli’s age to the time of his

offense.26 The District Court went on to note that “Tarselli will enjoy ample opportunity


21
   Bensalem Tp. v. Am. Fidelity Fire Ins. Co., 

, 993 (3d Cir. 1981).
22
   Crews v. Horn, 

, 149 (3d Cir. 2004).
23
   Heleva v. Brooks, 

, 192 (3d Cir. 2009) (citing Rhines v. Weber, 

, 278 (2005)).
24
   Because the District Court adopted the magistrate judge’s report and recommendation
in full, we treat the findings of the magistrate judge as the findings of the District Court.
25
   JA 117-18.
26
   JA 118.
                                                9
to renew his claims in federal court, if necessary”27 and expressly contemplated

“subsequent federal habeas corpus proceedings.”28

                                             A.

       Although we have not “definitively outline[d] the bounds of [good cause],”29 we

have instructed district courts to consider how much time remains for a petitioner to file a

subsequent petition in determining whether good cause exists.30

       The magistrate judge here recognized as much in resting his entire analysis of

good cause on whether Tarselli could refile his petition. The magistrate judge determined

that this diligence “has tolled the statute of limitations and essentially eliminated any

concerns that good cause exists to stay the petition in lieu of dismissal.”31 Thus, the

magistrate judge found that no good cause existed to stay the petition because “Tarselli

will enjoy ample opportunity to renew his claims in federal court, if necessary, once those

claims have been fully developed and exhausted in the state court system.”32

       As discussed above in Section II(A), this determination was clearly in error

because under Supreme Court law, Tarselli’s state petition did not toll his federal

limitations period. Indeed, the Commonwealth concedes as much,33 and recognizes that


27
   

107.
29
   

n.3.
30
   

(considering the time remaining for a subsequent federal petition and
concluding that a petitioner’s calculation of the statute of limitations was erroneous).
31
   JA 117-18.
32
   JA 118.
33
   See Appellee Br. at 4 (“Thus, Appellant’s first PCRA in 2012 did not toll the one year
period because it was not timely filed. Any new federal habeas petition on this issue
would be untimely.”).
                                             10
“[a]rguably, then, the jurisdictional time requirements are a good cause for Appellant’s

failure to exhaust state remedies.”34 We agree; if Tarselli demonstrates that he was a

minor at the time of his offense, he will be entitled to resentencing. Dismissing this

petition, however, would completely foreclose his access to the federal forum. Under

these circumstances, we have no trouble concluding that “good cause” exists to stay

Tarselli’s petition.

                                               B.

       The District Court articulated yet another reason for denying a stay in this case,

finding that “on the current incomplete, and ambiguous fact record we cannot say that

Tarselli has satisfied . . . the requirement that the petitioner present ‘potentially

meritorious claims.’”35 The District Court focused on the uncertainty about Tarselli’s

age, finding that if Tarselli was an adult at the time of his offense, Miller would be

inapplicable to his case. The Commonwealth urges affirmance on this point, arguing that

“[t]here is certainly no guarantee that Appellant will prevail on his claim that he is a

juvenile.”36

       Although few courts have clarified what makes a claim “potentially meritorious,”

the Ninth Circuit—which appears to be the only circuit to have offered any explanation

as to this prong—has interpreted Rhines to require only that “at least one of [a

petitioner’s] unexhausted claims is not ‘plainly meritless’ in order to obtain a stay . . ..”37


34
   

35
   JA 118.
36
   Appellee Br. at 5.
37
   Dixon v. Baker, 

, 722 (9th Cir. 2017).
                                               11
Thus, the Ninth Circuit will find a claim potentially meritorious “unless it is perfectly

clear that the petitioner has no hope of prevailing.”38 Our district courts appear to employ

a similar focus, dismissing claims that are legally impossible or lack any factual support 39

and finding claims “potentially meritorious” if they are plausible, even where the facts

underlying those claims are contested.40

       In light of these standards, the District Court erred in suggesting that it “cannot

ascertain” whether the Miller claim is potentially meritorious until the resolution of

Tarselli’s state proceedings. The District Court required proof that the claim is actually

meritorious, rather than potentially meritorious. It is uncontested that Tarselli is entitled

to resentencing under Miller if his Korean birth documents reveal that he was under 18 at

38
   

(internal quotation marks omitted) (quoting Cassett v. Steward,

, 624 (9th Cir. 2005)).
39
   See, e.g., Perrego v. Gilmore, No. 14-1799, 

, at *3-*5 (M.D. Pa.
June 26, 2015) (finding no “potentially meritorious” claims where all unexhausted claims
were legally impossible); McWilliams v. Pennsylvania, No. 13-2234, 

,
at *12-*14 (M.D. Pa. June 1, 2015) (denying stay in part because petitioner’s own
testimony contradicted claims and other claims had been waived on appeal); McLaughlin
v. Shannon, No. 08-4979, 

, at *10 (E.D. Pa. Aug. 10, 2010) (denying
stay where unexhausted claim was, inter alia, contradicted by five witnesses’ testimony);
Patton v. Cameron, No. 09-1178, 

, at *10 (M.D. Pa. Mar. 1, 2010)
(finding that a claim that lacked legal foundation was meritless).
40
   See, e.g., Perez v. Varano, No. 12-7057, 

, at *3 (E.D. Pa. July 24,
2013) (finding “claims[] which concern a violation of [petitioner’s] constitutional rights
based on alleged newly discovered evidence of his possible innocence” to be potentially
meritorious); Mobley v. Coleman, No. 09-1558, 

, at *4 (E.D. Pa. Jan.
28, 2010) (finding claims potentially meritorious because of plausible allegations, even
absent current access to record evidence); Green v. Folino, No. 03-674, 

, at *7 (E.D. Pa. July 26, 2006) (finding a claim potentially meritorious even
absent access to record evidence because, if true, allegations established a constitutional
violation); Bartelli v. Wynder, No. 04-3817, 

, at *2 (E.D. Pa. May 12,
2005) (finding claims potentially meritorious because they “allege violations of . . .
constitutional rights that could serve as grounds for granting a writ of habeas corpus if
supported by sufficient facts”).
                                              12
the time of his offense. Thus, the sole factual issue to be resolved is Tarselli’s date of

birth. As neither the District Court nor the Commonwealth have identified definitive

proof that Tarselli was not a minor at the time of his offense, this undoubtedly qualifies

as potentially meritorious under the rule established by the Ninth Circuit and as

apparently applied by district courts in our circuit.

         Because the facts underlying Tarselli’s petition for Miller relief are not so clear as

to render his claim patently meritless, we hold that Tarselli’s unexhausted claim is

potentially meritorious.

                                               C.

         Although the District Court found that Tarselli has diligently pursued his claim in

both state and federal court, the Commonwealth asserts in one paragraph of its brief:

                As previously indicated, Appellant has pursued his claims
                since July 30, 2012. However, the Commonwealth wonders
                why Appellant did not challenge his sentence previously if he
                believed he was a juvenile. The Commonwealth suggests this
                failure to make an age based challenge years ago was dilatory
                on Appellant’s part.41

This argument is unpersuasive. While it is true that Tarselli did not bring the instant

petition until July 30, 2012, the Commonwealth ignores the fact that Miller was not

decided until June 25, 2012. Between his initial sentencing and the Miller decision,

Tarselli had no right to resentencing which he could assert. We cannot now find him

dilatory for failing to assert a right which he did not yet have.

         On the contrary, Tarselli filed his first state petition approximately one month after


41
     Appellee Br. at 5.
                                               13
the Supreme Court created the right he asserts. After it became clear that his state

proceedings would not complete before the running of his one-year window under

AEDPA, Tarselli filed the instant protective habeas petition on April 15, 2013. Similarly,

once the Supreme Court held Miller to be retroactive, Tarselli filed a new state petition

less than one month later. On these facts, the Commonwealth’s argument—that Tarselli

has engaged in dilatory tactics solely because of his failure to assert a right which he did

not have for the majority of his incarceration—cannot be taken seriously.

       Accordingly, we agree with the District Court that Tarselli has not engaged in

dilatory tactics. Because Tarselli has satisfied all three requirements for a stay, and the

District Court denied his request primarily based on an erroneous understanding of

Supreme Court precedent, we hold that the District Court abused its discretion in denying

Tarselli’s request.

                                             III.

       In light of the foregoing, we will vacate the District Court’s dismissal of Tarselli’s

petition and remand with instructions to stay federal proceedings until such time as the

state proceedings are completed.




                                             14