                                                                                                                           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Precedential or Non-Precedential: Precedential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




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"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.




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