*RESUBMIT DLD-020                                     NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _________________

                                    No. 12-3214
                                 _________________

                              GARY LEE GERBER, JR.,
                                            Appellant

                                           v.

      DAVID VARANO, Superintendent; PA STATE ATTORNEY GENERAL;
             DISTRICT ATTORNEY OF LUZERNE COUNTY
                 ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 1:12-cv-00818)
                     District Judge: Honorable Sylvia H. Rambo
                     ____________________________________

           Submitted for Possible Summary Action Pursuant to Third Circuit
             L.A.R. 27.4 and I.O.P. 10.6 and on Appellant’s Request for a
               Certificate of Appealability Under 28 U.S.C. § 2253(c)(1)
                                   October 25, 2012

              Before: AMBRO, SMITH and CHAGARES, Circuit Judges

                           (Opinion filed: January 30, 2013 )
                                 _________________

                                     OPINION
                                 _________________

PER CURIAM

      Gary Lee Gerber, a Pennsylvania prisoner, appeals from the District Court’s order

dismissing his 28 U.S.C. § 2254 habeas corpus petition as unexhausted. For the
following reasons, we will vacate the District Court’s order and remand for further

proceedings.

                                             I.

       Following a jury trial, Gary Lee “Muffin” Gerber was found guilty on April 23,

2008, in the Court of Common Pleas of Luzerne County on receiving-stolen-property and

conspiracy charges. He was sentenced to a net maximum term of six years of

incarceration. Gerber pursued a direct appeal, which was discontinued in September

2008 and was followed by a counseled Post Conviction Relief Act (PCRA) petition filed

in September 2009.

       With the PCRA petition still pending in state court, Gerber filed this federal

habeas petition in May of 2012. In it, he appeared to raise claims of ineffective

assistance of counsel similar to those he raised in his state PCRA petition. Gerber also

requested that the District Court excuse exhaustion of state remedies pursuant to 28

U.S.C. § 2254(b)(1)(B), because his PCRA petition had “been before the Luzerne County

Court of Common Pleas without disposition for 32 months.” In the alternative, Gerber

asked the District Court to hold his petition in abeyance, so as to preserve his federal

filing date; he worried that meeting the one-year deadline of 28 U.S.C. § 2244(d)(1)

would be difficult given the time that elapsed before his PCRA petition had been filed

and further observed that, if his state sentence expired, he “cannot achieve relief of any

kind under the PCRA, whether the PCRA be filed timely or not.” Mem. ¶ 5, ECF No. 1-

1.
                                              2
         Prior to serving the habeas petition on the named respondents, the District Court

“checked the docket sheet for Petitioner’s related state case on the Pennsylvania Unified

Judicial System’s webportal,” and in so doing observed that “in an entry dated April 16,

2012, a PCRA hearing has been scheduled for June 8, 2012.” Order 2, ECF No. 7. Thus,

because it appeared that the state courts were finally moving on Gerber’s PCRA petition,

the District Court requested that the respondents apprise it of the current procedural

posture of the state proceedings. By the time the Commonwealth responded, the PCRA

petition had been denied in the trial court on the merits and an appeal had been lodged in

the Superior Court. 1 Relying on Circuit precedent, the District Court determined that the

resumption of state proceedings negated concerns over delay; therefore, because federal

review was “not appropriate . . . at this time,” and because the possible expiration of

Gerber’s sentence did not otherwise excuse the exhaustion requirement, the District Court

dismissed the petition without prejudice for failure to exhaust. Gerber v. Varano, No.

1:12–CV–00818, 2012 WL 3061756, at *2–4 (M.D. Pa. July 26, 2012). The District

Court did not reach Gerber’s alternative request that it hold the case in abeyance.

         Gerber timely appealed and filed an application for a certificate of appealability

(COA). We previously directed the parties to show cause “why this matter should not be

summarily remanded for the District Court to address whether Gerber’s petition should

be held in abeyance pending the completion of his state-court collateral attacks on his


1
    As of the time of writing, that appeal is still pending. See 1294 MDA 2012.

                                               3
conviction.” Gerber has responded; the Commonwealth has not. Regardless, the matter

is now ripe for our review.

                                              II.

       Before an appeal may be taken from a “a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State court,” either the District

Court or this Court must first issue a COA, see 28 U.S.C. § 2253(c)(1)(A)—a step that

the Supreme Court recently reaffirmed to be a jurisdictional prerequisite to appeal. See

Gonzalez v. Thaler, ___ U.S. ___, 132 S. Ct. 641, 649 (2012). When a District Court

“denies a habeas petition on procedural grounds without reaching the prisoner’s

underlying constitutional claim[s],” as is the case here, “a COA should issue when the

prisoner shows, at least, that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason would

find it debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). Since its holding in Slack, the Supreme Court has

not elaborated upon the precise showing necessary to “state[] a valid claim of the denial

of a constitutional right”; however, we recently reaffirmed that we are required to make a

“threshold inquiry regarding” the petitioner’s constitutional claims when the merits have

not been addressed below. Pabon v. Superintendent S.C.I. Mahanoy, 654 F.3d 385, 393

(3d Cir. 2011), cert. denied, 132 S. Ct. 2430 (2012); see also id. at 392–93 & n.9

(emphasizing that the COA stage does not require a showing that the petitioner will

ultimately prevail); United States v. Brooks, 230 F.3d 643, 646 (3d Cir. 2000) (noting
                                              4
that a court may grant an application for a COA when “the issue is procedural and the

underlying petition raises a substantial constitutional question”). 2

       We conclude that Gerber has satisfied the Slack standard. Because the District

Court did not address Gerber’s alternative requests for relief, jurists of reason could

debate the Court’s decision to dismiss his petition as unexhausted. And on the minimal

record below, we conclude that he has stated a valid, cognizable, and potentially

meritorious ineffective assistance of counsel claim. Accordingly, Gerber’s request for a

COA is granted on the procedural question of whether dismissal without prejudice for

failure to exhaust was appropriate; we therefore have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a) and conduct plenary review of the District Court’s exhaustion

analysis. See Holloway v. Horn, 355 F.3d 707, 713 (3d Cir. 2004). Summary action is

appropriate when an appeal presents no substantial question. See Murray v. Bledsoe, 650



2
  Although we engaged in a lengthy review of the merits in Pabon, see id. at 393–98, such
a showing by the petitioner is not always necessary to satisfy the threshold merits-in-
procedural-COA inquiry; that Pabon’s case was found to meet the Slack standard does
not mean that all procedural COA determinations require the level of factual analysis
undertaken in Pabon. Cf. Slack, 529 U.S. at 484 (“[A] COA should issue when the
prisoner shows, at least, that jurists of reason would find it debatable . . . .”) (emphasis
added). Elsewhere, we have emphasized that our review at the COA stage is but
preliminary, see Goldblum v. Klem, 510 F.3d 204, 214 (3d Cir. 2007), and while our
sister Circuits disagree somewhat on the level of merits scrutiny required, they generally
concur that a threshold level of review is appropriate—especially when, as here, only
minor development of the record has occurred below. See, e.g., Fleming v. Evans, 481
F.3d 1249, 1259 (10th Cir. 2007) (determining whether petitioner has “facially alleged” a
constitutional claim); Mateo v. United States, 310 F.3d 39, 40 (1st Cir. 2002) (addressing
whether constitutional claim is “colorable”); see also Houser v. Dretke, 395 F.3d 560,
562 (5th Cir. 2004) (“If [the District Court] materials are unclear or incomplete, then [a]
                                              5
F.3d 246, 248 (3d Cir. 2011) (per curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                             III.

       On what it did decide, the District Court was undoubtedly correct. In habeas cases

arising out of state convictions and sentences, exhaustion is only excused in extraordinary

circumstances, such as when there has been “inexcusable or inordinate delay” in the

relevant state proceedings. See Wojtczak v. Fulcomer, 800 F.2d 353, 354 (3d Cir. 1986).

“The thirty-three month delay in Wojtczak remains the shortest delay held to render state

collateral proceedings ineffective for purposes of the exhaustion requirement,” Cristin v.

Brennan, 281 F.3d 404, 411 (3d Cir. 2002); and, even in situations of extreme delay, the

resumption of state proceedings counsels against further federal adjudication of a pending

habeas petition, cf. id. The District Court found the delay here to be approximately 32

months, and observed further that state proceedings had resumed. It thus correctly

concluded that exhaustion was not excused.

       A separate question is raised, however, on whether stay and abey would have been

appropriate, and the District Court failed to address this matter in issuing its opinion.

Stay and abey is available even when a petitioner has exhausted none of the claims in his

petition. Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009). In determining whether a

stay should be granted, a Court must consider three main factors: a showing of good

cause, the presence of potentially meritorious claims, and the presence or absence of



COA should be granted, and the appellate panel, if it decides the procedural issue
favorably to the petitioner, may have to remand the case for further proceedings.”).
                                              6
intentionally dilatory tactics. Rhines v. Weber, 544 U.S. 269, 277–78 (2005). For the

following reasons, we conclude that it is appropriate to remand to the District Court for

further analysis of the stay question.

       In his petition, Gerber argued that staying his federal petition was appropriate on

two “good cause” grounds. First, he claimed that his PCRA petition was filed 364 days

after the conclusion of his direct-appeal proceedings, which would—if the PCRA petition

is eventually denied—leave him with only one day to lodge a federal habeas petition.

See 28 U.S.C. § 2244(d)(2) (tolling the one-year federal filing deadline while “a properly

filed application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending”). In Heleva, we observed that the time

remaining on the one-year clock to file a federal habeas petition could reasonably be a

component in the “good cause” determination from Rhines. See Heleva, 581 F.3d at

192–93 & n.3. Second, Gerber argues that if he fully serves his state sentences, and

ceases to be “in custody,” he may lose the ability to pursue either state or federal

postconviction remedies. There is some merit to his concern. Under Pa. Cons. Stat.

§ 9543(a)(1)(i), PCRA relief only extends to those “currently serving a sentence of

imprisonment, probation or parole for the crime” attacked. See Commonwealth v.

O’Berg, 880 A.2d 597, 599 (Pa. 2005). The completion of a sentence renders PCRA

relief unavailable, regardless of the collateral consequences of those sentences.

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. Ct. 2006) (collecting cases). By

contrast, the federal “in custody” requirement simply looks to the date that the petition is
                                              7
filed, and completion of a prisoner’s sentence does not moot the petition. Leyva v.

Williams, 504 F.3d 357, 363, 368 n.16 (3d Cir. 2007). If, during the pendency of PCRA

proceedings, Gerber is released from prison and is not otherwise in custody, the state

courts may deem his PCRA petition moot and he might not continue to be “in custody”

for the purposes of filing a separate federal habeas petition.

       Because the concerns above implicate questions of fact and matters of discretion,

as well as issues of law, the District Court is best positioned to determine whether they

combine with the other Rhines factors to counsel in favor of a stay. See Hudson United

Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 159 (3d Cir. 1998) (stating that “[w]hen the

resolution of an issue requires the exercise of discretion or fact finding,” and the trial

court did not reach the issue, “it is inappropriate and unwise for an appellate court” to do

so in the first instance). Thus, as in Heleva, we will commit the inquiry to the District

Court for analysis in the first instance.

                                             IV.

       In sum, because the District Court did not decide whether stay and abey would be

appropriate in this case, we will vacate its order and remand for further proceedings. In

conducting its Rhines analysis, the Court should consider the two concerns we

highlighted above, along with such other factors as may prove relevant. 3


3
  Should Gerber’s sentence run its course in the meantime, the District Court would then
be tasked with determining whether the federal petition should nevertheless proceed. We
note that, in Leyva, we concluded that the completion of a prisoner’s sentence, which
terminated his state collateral attacks, did not constitute a procedural default of
                                               8
constitutional claims because it was outside of the prisoner’s control. Leyva, 504 F.3d at
369. Alternatively, should Gerber’s PCRA petition be conclusively decided adverse to
his interests before the District Court has a chance to rule, the Court should consider
anew whether Gerber’s claims have been exhausted.
                                            9
