DLD-076                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 17-3526
                                      ____________

                            IN RE: FRANKLIN X. BAINES,
                                                     Petitioner

                        __________________________________
                        On a Petition for Writ of Mandamus from
                              the United States District Court
                         for the Eastern District of Pennsylvania
                        (Related to D.C. Civ. No. 2-12-cv-05672)
                           District Judge: Joseph F. Leeson, Jr.
                        __________________________________

                       Submitted Pursuant to Fed. R. App. Pro. 21
                                December 14, 2017

              Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

                           (Opinion filed: December 19, 2017)
                                     ____________

                                        OPINION ∗
                                      ____________


PER CURIAM

        Franklin Baines petitions pro se for a writ of mandamus. For the reasons that

follow, we will deny the petition.

       Baines is a Pennsylvania state prisoner serving a life sentence with no chance for

parole for a murder he committed at the age of 16. As such, he has a right to be


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
resentenced in state court under Miller v. Alabama, 

(2012), and

Montgomery v. Louisiana, 

(2016). 1 Baines has now served 40 years in

prison. His Miller claim is presently pending before the Philadelphia Court of Common

Pleas in a timely petition under Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42

Pa. Cons. Stat. §§ 9541, et seq. He also raised his Miller claim in a habeas corpus

petition, 28 U.S.C. § 2254, which is pending in the United States District Court for the

Eastern District of Pennsylvania. In an order dated March 24, 2017, the Magistrate Judge

assigned to Baines’ federal case stayed federal proceedings pursuant to Rhines v. Weber,

(2005), 2 to allow him to exhaust his Miller claim in state court. See 28

U.S.C. § 2254(b)(1)(A) (An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be granted unless it appears

that -- (A) the applicant has exhausted the remedies available in the courts of the

State[.]”).

       The District Attorney of Philadelphia has made an offer of a new sentence to

Baines of 40 years’ to life imprisonment, an offer that would make him immediately

eligible for parole. The offer has been conveyed to Baines’ PCRA counsel, Susan Ricci,

Esquire, of the Defender Association of Philadelphia. Baines is not interested in the

offer, although it is not clear whether his PCRA counsel formally has rejected the offer or

made a counter-offer. Baines, who is proceeding pro se in federal court after his court-

1
 In Miller, the Supreme Court held that mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment. Montgomery made
Miller retroactive to cases on collateral review.
2
  Under Rhines, a District Court has the discretion to stay a habeas corpus petition to
allow a petitioner to exhaust a claim in state 

. Stays are proper
only when the unexhausted claim is not “plainly meritless” and there exists “good cause
for the petitioner’s failure to exhaust his claims first in state court.” 

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appointed attorney was allowed to withdraw, filed numerous motions seeking to lift the

Rhines stay and to be excused from the exhaustion requirement. Although the relief he

seeks in the District Court is not clear, he may be seeking a writ directing the state court

to grant him an immediate sentencing hearing. In an order dated November 17, 2017 and

filed on the civil docket on November 20, 2017, see Docket Entry No. 54, the Magistrate

Judge denied the motions and declined to lift the stay. In the margin, the Magistrate

Judge noted that state court proceedings are moving forward without undue delay that

Baines has been in custody for 40 years, and that, under the sentence offered by the

Commonwealth, he would become parole eligible immediately upon resentencing.

       On November 20, 2017, Baines filed a petition for writ of mandamus in this Court,

his second such petition in the last two years, see In re: Baines, 658 F. App’x 159, 162

(3d Cir. 2016) (“At this time … Baines has not shown that his pending PCRA petition is

not an adequate means to obtain the relief desired.”). In it he argues that the

Commonwealth is engaging in “subterfuge” in order to deny him relief. It appears from

his moving papers that Baines is trying to press, pro se, a claim in state court that his plea

was involuntary and that this may be part of the reason why he will not accept the

Commonwealth’s offer. We note further that Baines appears to be seeking in state court

to dismiss his PCRA counsel.

       We will deny the petition for writ of mandamus. Our jurisdiction derives from 28

U.S.C. § 1651, which grants us the power to “issue all writs necessary or appropriate in

aid of (our) ... jurisdiction and agreeable to the usages and principles of law.” A writ of

mandamus is an extreme remedy that we grant only in extraordinary situations. See Kerr

v. United States Dist. Court, 

, 402 (1976). To justify the use of this

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extraordinary remedy, a petitioner must show both a clear and indisputable right to the

writ and that he has no other adequate means to obtain the relief desired. See Haines v.

Liggett Group Inc., 

, 89 (3d Cir. 1992).

       An application for a writ of habeas corpus shall not be granted unless that

applicant has exhausted state court remedies, or “there is an absence of available State

corrective process;” or “circumstances exist that render such process ineffective to

protect the rights of the applicant.” See 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). “[I]nexcusable

or inordinate delay by the state in processing claims for relief may render the state

remedy effectively unavailable.” Wojtczak v. Fulcomer, 

, 354 (3d Cir.

1986). When such delay renders the state remedy ineffective to protect the rights of the

petitioner, we have excused exhaustion. 

(remanding petition for

consideration on merits after prisoner’s state claim for post-conviction relief had not

progressed for thirty-three months and petitioner was not responsible for delay). See also

Lee v. Stickman, 

, 343-44 (3d Cir. 2004) (exhaustion excused where

petitioner’s post-conviction petition had been pending before the state courts for almost

eight years).

       Here, however, there is an offer of a new sentence by the Commonwealth, which

would make Baines immediately eligible for parole. This is real progress and thus the

District Court may stay its hand, see Christin v. Brennan, 

, 411 (3d Cir.

2002) (instructing that, even where there has been excessive delay, district courts should

“stay their consideration of habeas petitions when previously stalled state proceedings

resume”). The Rhines stay entered by the Magistrate Judge appears appropriate to us in

Baines’ federal case because state proceedings are moving toward a decision. We thus

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conclude that Baines has not shown a clear and indisputable right to mandamus relief

from the exhaustion requirement, see 

. We note that Baines’s

PCRA counsel has not sought to have the PCRA proceedings expedited. Moreover,

Baines’ meritorious Miller claim does not entitle him to challenge his guilty plea; rather,

he is entitled only to be resentenced.

       Last, Baines filed a notice of appeal from the Magistrate Judge’s order refusing to

lift the Rhines stay, see Docket Entry No. 56. Absent consent of the parties to proceed

before a Magistrate Judge, appeal of an order issued by a Magistrate Judge is to a District

Judge. 28 U.S.C. § 636(b)(1) & (c)(1). Here, the District Court may review and

reconsider the Magistrate Judge’s order if Baines can show “that the … order is clearly

erroneous or contrary to law,” 

636(b)(1)(A). Although this standard for reversing

the Magistrate Judge is demanding, it is less onerous than the mandamus “clear and

indisputable right to the writ” standard. Thus, our decision to deny Baines’ mandamus

petition does not act as a constraint on the District Court should it wish to fashion some

relief, though we take no position on the merit of arguments that Baines has made,

beyond our determination that they do not merit mandamus relief.

       For the foregoing reasons, we will deny the petition for writ of mandamus.




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