Filed: Mar. 04, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-4-2004 Crews v. Horn Precedential or Non-Precedential: Precedential Docket No. 99-9008P Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Crews v. Horn" (2004). 2004 Decisions. Paper 896. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/896 This decision is brought to you for free and open access by the Opinions of the United States Cou
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-4-2004 Crews v. Horn Precedential or Non-Precedential: Precedential Docket No. 99-9008P Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Crews v. Horn" (2004). 2004 Decisions. Paper 896. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/896 This decision is brought to you for free and open access by the Opinions of the United States Cour..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-4-2004
Crews v. Horn
Precedential or Non-Precedential: Precedential
Docket No. 99-9008P
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Crews v. Horn" (2004). 2004 Decisions. Paper 896.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/896
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PRECEDENTIAL David W. Wycoff (Argued)
Matthew C. Lawry
IN THE UNITED STATES Anne L. Saunders
COURT OF APPEALS Defender Association of Philadelphia
FOR THE THIRD CIRCUIT Federal Capital Habeas Corpus Unit
____________ The Curtis Center, Suite 545 West
Independence Square West
No: 99-9008 Philadelphia, PA 19106
____________
Attorneys for Appellant
PAUL D. CREWS,
Appellant Daniel Stern (Argued)
Assistant District Attorney of Perry
v. County
2650 North 3rd Street
MARTIN HORN, Commissioner, Harrisburg, PA 17110
Pennsylvania Department of Corrections;
PHILLIP JOHNSON, Superintendent of Attorney for Appellees
the State Correctional Institution at _________________
Greene; JOSEPH MAZURKIEWICZ,
Superintendent of the State Correctional OPINION
Institution at Rockview; _________________
PENNSYLVANIA ATTORNEY
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 a ggr essive syndro m e
that belonged to the victims. When aggravated on the day of the killings by
arrested, Crews possessed numerous alcohol and cocaine.
2
Pennsylvania Supreme Court affirmed his
The trial judge instructed the jury conviction on April 21, 1994. Crews, 640
that the po tential ag grav ating 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
3
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
August 28, 2002, the Court of Common file a petition for federal habeas corpus
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
4
undisputed that Crews qualifies for until March 15, 1999, to file his habeas
statutory tolling for the period from corpus petition.2 He filed his habeas
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
1 federal district court to upset a state court
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
2
for a writ of certiorari. Therefore, there is In 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 the Co mm onw ealth , while not
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)
5
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,
p r o m o te 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
relief, we hold that a district court must other grounds,
536 U.S. 266 (2002).3
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.
6
federa l habeas corpus determine whether to stay or dismiss a
p e t i ti 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 is d i c ti o n over 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.
federal revie w of 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
7
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
dangers, Christy is factu ally 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. Under the
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
8
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
unex haus ted issues. 4 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
4 be filed but not granted prior to total
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.
9
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
5 period, which was to make
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.
10
petitions, and, if it turns out
t h a t the presence of
unexhausted claims and the
requirements of federal law
require a round trip to and
from state co urt to
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.
11
