REPORT AND RECOMMENDATION

ELIZABETH T. HEY, Magistrate Judge.

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by Michael McLaughlin, who is currently on probation in relation to his 2007 conviction for stalking.2 For the reasons that follow, I recommend that the petition be stayed pending the state courts' consideration of Petitioner's pending post-conviction petition.

I. FACTS AND PROCEDURAL HISTORY3

On September 4, 2007, a jury convicted McLaughlin of stalking. N.T. 9/4/07 at 142. The Honorable Willis Berry sentenced McLaughlin to confinement for 2-to-4 years followed by 3 years' probation. N.T. 10/30/07 at 33-37.4 Appointed counsel filed a notice of appeal, see Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Notice of Appeal (filed Nov. 30, 2007), which was subsequently quashed by the Superior Court because the appeal was untimely filed. See Commonwealth v. McLaughlin, 3144 EDA 2007, Docket Sheet (Pa. Super. docket entry dated Jan. 26, 2009).

McLaughlin's direct appellate rights were reinstated by the Honorable Sheila Woods-Skipper on October 22, 2009. Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Order Granting PCRA Petition (Phila. C.C.P. Oct. 22, 2009). In his direct appeal, McLaughlin claimed the court's pro se colloquy was inadequate and his trial counsel was ineffective for failing to object to the inadequate colloquy. Commonwealth v. McLaughlin, 3144 EDA 2009, Response to Rule 1925(b) Order (filed Feb. 12, 2010). On November 8, 2010, the Superior Court affirmed the judgment of sentence. Commonwealth v. McLaughlin, 3144 EDA 2009, Memorandum (Pa. Super. Nov. 8, 2010).5 The Pennsylvania Supreme Court denied McLaughlin's petition for allowance of Appeal on April 7, 2011. Commonwealth v. McLaughlin, 657 EAL 2010, Order (Pa. Apr. 7, 2011).

On April 4, 2012, McLaughlin filed a petition pursuant to Pennsylvania's Post-Conviction Relief Act ("PCRA"), 42 Pa. C.S.A. §§ 9541-9551. Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Petition for Post-Conviction Relief and Legal Argument (Phila. C.C.P. filed 4/4/12). After McLaughlin filed several amended petitions (filed 7/9/12, 1/3/13, and 5/22/14), and the court held several hearings and heard argument (N.T. 1/10/14, 1/15/14, 5/22/14, 5/27/14, 5/29/14), the Honorable Michael Erdos denied the petition. Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Order (Phila. C.C.P. May 29, 2014). On appeal, McLaughlin argued that the PCRA court erred by denying relief where the trial court did not conduct an adequate waiver of counsel colloquy and the trial court judge exhibited bias in favor of the Commonwealth because he was the subject of a criminal investigation. The Superior Court affirmed the denial of PCRA relief on December 8, 2015, finding that McLaughlin had presented his challenge to the counsel colloquy on direct appeal and his bias claim was not cognizable under the PCRA and meritless in any event. Commonwealth v. McLaughlin, No. 1965 EDA 2014, Memorandum (Dec. 8, 2015).6 The Pennsylvania Supreme Court denied McLaughlin's petition for allowance of appeal on April 13, 2016. Commonwealth v. McLaughlin, 12 EAL 2016, Docket Sheet (Pa.) (entry for Apr. 13, 2016).7

On June 3, 2016, McLaughlin filed a second PCRA petition. Commonwealth v. McLaughlin, CP-51-CR-0303571-2006, Docket Sheet (Phila. C.C.P.) (entry for June 3, 2016).8 As of this writing, that petition remains pending.

On July 7, 2016, McLaughlin filed this petition for habeas corpus claiming that he was denied the right to trial counsel, never waived counsel, and the trial judge was corrupt and failed to recuse himself. Doc. 1 ¶ 12 GROUND ONE, GROUND TWO. The Honorable Nitza I. Quiñones Alejandro referred the petition to the undersigned for a Report and Recommendation. Doc. 7. On October 17, 2016, McLaughlin requested the federal court to stay consideration of his habeas petition in light of his pending PCRA petition. Doc. 5.9 On November 28, 2016, McLaughlin provided this court a copy of a filing he made with respect to his PCRA petition. In the filing to the state court, McLaughlin addressed both claims presented in his habeas petition. Notably, McLaughlin alleges that his trial judge's arrest and subsequent conviction on July 22, 2015, provide a basis for his argument that the trial judge was biased. Doc. 12 at 2. Although the District Attorney has not yet responded to the habeas petition or McLaughlin's motion to stay consideration of his petition, considering the posture of the claims raised in the habeas petition, I will recommend that the case be stayed pending the state courts' review of McLaughlin's current PCRA petition.

II. DISCUSSION

Absent unusual circumstances, the federal court will not consider the merits of a habeas corpus petition unless the petitioner has complied with the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). Exhaustion requires that the petitioner give the state courts an opportunity to review his allegations of error before seeking relief in the federal court. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing Duncan v. Henry, 513 U.S. 364, 365 (1995)). Pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"),

28 U.S.C. § 2254(c).

Based on the procedural history I compiled from a review of the state court record, McLaughlin's claim regarding the denial of counsel/challenge to the counsel colloquy is exhausted. However, to the extent McLaughlin is now claiming that the trial judge's bias was based, not on a pending criminal investigation, but the underlying activities for which the judge was convicted after McLaughlin filed his PCRA petition, the claim is not exhausted and appears to be pending before the trial court in his second PCRA petition. Thus, the petition is "mixed," containing both exhausted claims and an unexhausted claim.

In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court recognized that the exhaustion requirement can conflict with AEDPA's one year statute of limitations. The Supreme Court specifically considered the issue of mixed petitions, those containing both exhausted and unexhausted claims, observing that

544 U.S. at 275. In such cases, if the petitioner can show good cause for failing to exhaust and that his unexhausted claims have potential merit, the Court approved the use of a "stay and abbey" procedure. By staying the federal petition rather than dismissing it, a petitioner can complete the state procedures necessary to comply with AEDPA's exhaustion requirement without the need to re-file at a point in time that might be outside of the statute of limitations. This procedure protects the concerns of both comity and finality by giving the state courts the first opportunity to address the unexhausted claims and preserving the petitioner's exhausted claims from an untimely fate if the federal court were to dismiss a mixed petition. Id. at 278. Whether to stay a petition under Rhines is discretionary with the district court, guided by the timeliness concerns at issue. Id. at 277-78.

McLaughlin appears to have protectively filed to maintain the timeliness of his habeas petition, and he asks that this court issue a stay pending the state court's final resolution of his pending PCRA petition. See Doc. 5. McLaughlin's current habeas petition appears to be timely filed. The Pennsylvania Supreme Court denied his petition for allowance of appeal on April 7, 2011, making McLaughlin's conviction final 90 days later when the time for seeking certiorari in the United States Supreme Court expired. Martin v. Horn, 187 F.3d 333, 337 (3d Cir. 1999) (finding that a conviction becomes final on direct appeal upon the expiration of the time to seek the next level of available appellate review if such review is not sought). He thereafter had one year, or until July 6, 2012, to file his federal petition. See 28 U.S.C. § 2244(d)(1)(A).

He filed his first PCRA petition on April 4, 2012, tolling the habeas limitations period 273 days after it had begun to run. See 28 U.S.C. § 2244(d)(2) (time during which properly filed application for state post-conviction review shall not be counted toward limitation period). The limitations period remained tolled until April 13, 2016, when the Pennsylvania Supreme Court denied allocator in his collateral appeal. See Lawrence v. Florida, 549 U.S. 327 (2007) (limitations period not tolled for appeal to United States Supreme Court in state collateral appeal). At that point McLaughlin had 92 days to timely file his habeas petition, which he filed on July 7, 2016, just 7 days before the habeas limitations period expired.10

I conclude that McLaughlin's stay request should be granted. He has brought both an exhausted claim and an unexhausted claim in a timely petition and has shown good cause for his failure to exhaust by having first sought review in state court of a claim alleging newly discovered evidence. If the state courts determine that his second PCRA petition is untimely or otherwise "improperly filed," none of the time after April 13, 2016 will be excluded from the federal habeas limitations period. Thus, by the time the state courts conclude review of his currently pending PCRA petition, if they decided his PCRA petition was untimely, he would be out of time to file in federal court.11

III. CONCLUSION

For the foregoing reasons, I recommend that McLaughlin's habeas petition be placed in suspense and that he and the District Attorney notify this court within thirty days of the conclusion of the state court proceedings, so that the habeas petition may proceed in this court if necessary.

Accordingly make the following:

RECOMMENDATION

AND NOW, this 22nd day of December, 2016, IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be placed in suspense pending Petitioner's exhaustion of state court remedies and the order for an answer be VACATED. IT IS FURTHER RECOMMENDED that the court require Petitioner and Respondents to notify the court within thirty days of the conclusion of the state court proceedings so the habeas petition may proceed in this court. Petitioner may file objections to this Report and Recommendation. See Local Civ. Rule 72.1. Failure to file timely objections may constitute a waiver of any appellate rights.

ORDER

AND NOW, this ____________ day of ____________, 2017, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Elizabeth T. Hey, IT IS ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED.

2. The petition for a writ of habeas corpus is placed in suspense until the conclusion of the state court proceedings.

3. Petitioner and Respondents shall notify the court within thirty days of the conclusion of the state proceedings so the habeas petition may proceed in this court.

4. The order requiring the District Attorney to file an answer to the petition at this time is VACATED.

NOTICE

Enclosed herewith please find a copy of the Report and Recommendation filed by United States Magistrate Judge Elizabeth T. Hey, on this date in the above captioned matter. You are hereby notified that within fourteen (14) days from the date of service of this Notice of the filing of the Report and Recommendation of the United States Magistrate Judge, any party may file (in duplicate) with the clerk and serve upon all other parties written objections thereto (See Local Civil Rule 72.1 IV (b)). Failure of a party to file timely objections to the Report & Recommendation shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court Judge.

In accordance with 28 U.S.C. §636(b)(1)(B), the judge to whom the case is assigned will make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. The judge may accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge, receive further evidence or recommit the matter to the magistrate judge with instructions.

Where the magistrate judge has been appointed as special master under F.R.Civ.P 53, the procedure under that rule shall be followed.