                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-21-2005

Benchoff v. Colleran
Precedential or Non-Precedential: Precedential

Docket No. 03-3635




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                                                     PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                            No. 03-3635


                      ROBERT BENCHOFF,

                                         Appellant

                                  v.

                    RAYMOND COLLERAN




         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                     (D.C. No. 02-cv-01885)
          District Judge: Honorable A. Richard Caputo




                 Argued February 8, 2005
  Before: BARRY, FUENTES, and BECKER, Circuit Judges.

                       (Filed April 21, 2005)

GERALD J. PAPPERT
MICHAEL L. HARVEY(argued)
CALVIN R. KOONS
JOHN G. KNOOR, III
Office of the Attorney General, Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
         Attorneys for Appellee

R. DAMIEN SCHORR (argued)
1015 Irwin Drive
Pittsburg, PA 15236
       Attorney for Appellant




                      OPINION OF THE COURT




BECKER, Circuit Judge.

        Robert Benchoff appeals from an order of the District Court
denying his petition for a writ of habeas corpus claiming that he
was denied due process by the Pennsylvania Board of Probation
and Parole (the “Parole Board”) when it failed to give a meaningful
statement of reasons for denial of his parole. The determinative
question on appeal, however, is whether a petition challenging the
administration of a petitioner’s sentence, such as Benchoff’s parole
claim, should be considered a “second or successive” petition over
which the District Court lacked subject matter jurisdiction under 28
U.S.C. § 2244, if the petitioner had filed a prior petition that
challenged the underlying conviction or sentence.
        Examples of challenges to the administration of a sentence
are those claims that raise issues relating to conditions of
confinement, parole procedures, or calculation of good-time
credits. In this case, Benchoff filed his first federal habeas corpus
petition, which made claims related to the conduct of his trial and
his conviction, only several months before filing the instant
petition. We hold that because Benchoff’s parole claim had
ripened by that time, and he had no valid excuse for failing to raise
the claim in his first petition, the District Court lacked subject
matter jurisdiction and hence should have dismissed this petition
as “second or successive” as required by § 2244. In making this
determination, we will consult the abuse of the writ jurisprudence,
which predated the passage of § 2244, concluding that the doctrine
retains vitality as a tool for interpreting the term “second or
successive” under § 2244.
        We also reject Benchoff’s claim that he was not required to
raise his parole claim in his first habeas petition because he had not
yet exhausted the claim in the Pennsylvania courts. We will

                                  2
therefore dismiss the appeal and remand to the District Court with
instructions to dismiss the petition.

          I. FACTS AND PROCEDURAL HISTORY

         Benchoff was convicted of burglary, criminal trespass,
simple assault, and two counts of interference with the custody of
children in the Court of Common Pleas of Franklin County,
Pennsylvania, on August 15, 1995. He first became eligible for
parole from his sentence on December 16, 2000.
         On June 27, 2002, Benchoff filed a federal habeas petition
raising exhausted and unexhausted claims relating to the conduct
of his criminal trial. The District Court denied the petition and no
appeal was taken. Before any decision was rendered on his habeas
petition, Benchoff filed the present federal habeas petition pursuant
to 28 U.S.C. § 2254.1 The gravamen of Benchoff’s current petition
is that the Parole Board violated his right to due process by failing
to provide him with an adequate statement of reasons for denying
him parole.
         Benchoff was first reviewed for parole in 2000. The notice
of denial of parole stated only that the Board “has determined that
the fair administration of justice cannot be achieved through your
release on parole.” In 2001 and 2002, Benchoff was again



        1 Prior to filing this habeas petition, Benchoff first sought
relief from the Pennsylvania state courts. On April 1, 2002, he
filed a petition for a writ of mandamus in the Commonwealth Court
of Pennsylvania claiming that the Parole Board had denied him
parole for unconstitutional reasons. The Commonwealth Court
denied the writ three days later. Benchoff then filed a second
mandamus petition in Commonwealth Court arguing that the Parole
Board had not adequately revealed its rationale in denying parole.
The Commonwealth Court denied the writ, and its decision was
affirmed by the Pennsylvania Supreme Court on July 11, 2002.
Benchoff then filed a petition for a writ of habeas corpus in the
Pennsylvania Supreme Court on April 28, 2002, which was denied
May 15, 2002. Finally, Benchoff filed yet another mandamus
petition in the Commonwealth Court on May 28, 2002, which was
denied December 3, 2002.

                                 3
reviewed and again denied for parole. Each time, the notice of
denial used the same “fair administration of justice” language.
Benchoff then filed this federal habeas petition. Approximately
two weeks after Benchoff filed this petition, the Parole Board
modified its 2002 decision and provided Benchoff with additional
information regarding the reasons for denial of parole.2
       Since filing this petition, Benchoff has filed two more
federal habeas petitions (on May 7, 2003 and July 25, 2003). Each
of these petitions claims that it was a violation of the ex post facto
clause of the United States Constitution for the Parole Board to use
the 1996 amendment to Pennsylvania’s parole procedures in
making Benchoff’s parole decision because the 1996 amendment
was not in effect at the time of Benchoff’s 1995 conviction.
       The Magistrate Judge recommended that the present petition
and the May 7, 2003 petition be granted and suggested that the
Parole Board should be required to provide Benchoff with a
statement of reasons for denial of parole. The District Court,
however, declined to adopt the M agistrate Judge’s
recommendations, concluding that Benchoff did not have a due
process right to a statement of reasons. The District Court held that



        2 The revised 2002 notice of denial of parole stated:

      Your best interests do not justify or require you being
      paroled/reparoled; and, the interests of the
      Commonwealth will be injured if you were
      paroled/reparoled.     Therefore, you are refused
      parole/reparole at this time. The reasons for the
      Board’s decision include the following:

             Your version of the nature and circumstances of
             the offense(s) committed.

             The notes of testimony of the sentencing
             hearing.

             Your interview with the hearing examiner
             and/or board member.
A-51.

                                  4
a petitioner has no procedural right to a statement of reasons for
denial of parole because neither federal nor Pennsylvania state law
creates a substantive liberty interest in parole. The District Court
did not address the May 7, 2003 petition’s ex post facto claims.
Benchoff has appealed the District Court’s denial of his habeas
petition only as to the due process parole claim.3

                         II. DISCUSSION

                                 A.

        As noted above, notwithstanding the fact that Benchoff had
already filed a prior petition for habeas corpus, the District Court
decided this case on the merits without addressing the threshold
question whether Benchoff’s habeas petition should have been
dismissed as a “second or successive” petition pursuant to 28
U.S.C. § 2244. Neither party has raised the successiveness issue in
the District Court or on appeal.
        Nevertheless, this Court must determine whether Benchoff’s
habeas petition was “second or successive” within the meaning of
28 U.S.C. § 2244(b), because § 2244 implicates both our appellate
jurisdiction and the District Court’s subject matter jurisdiction. See
Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir. 2002) (“Most
courts that have considered the issue treat the successiveness issue
as comparable to the defense that the court lacks jurisdiction of the
subject matter.”); see also Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 95 (1998) (“[E]very federal appellate
court has a special obligation to satisfy itself not only of its own
jurisdiction, but also that of the lower courts in a case under
review, even though the parties are prepared to concede it.”)
(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (internal
quotation marks omitted)). Therefore, it is incumbent upon us to



       3 We note that our decision today does not apply to
Benchoff’s ex post facto challenge to the Parole Board’s October
2002 decision to deny him parole. The Parole Board’s revised
statement of reasons, issued in October 2002, was substantively
different from the reasons it gave Benchoff on earlier occasions,
and was issued after Benchoff had filed his first habeas petition.

                                  5
address the successiveness issue sua sponte to ensure that we and
the District Court have jurisdiction to hear the merits of Benchoff’s
petition.4



        4We have some doubt that Benchoff’s parole claim was
properly filed as a habeas corpus petition pursuant to § 2254.
Benchoff does not appear to be challenging the fact of confinement
or to be seeking speedier release, but rather, to be challenging only
the procedure used to communicate the Parole Board’s decision
denying him parole. In a very recent decision, the Supreme Court
held that challenges to parole eligibility proceedings which seek
new parole procedures but which would not necessarily result in
speedier release do not “lie[] at the ‘core of habeas corpus” and
instead are cognizable under 42 U.S.C. § 1983. Wilkinson v.
Dotson, 125 S.Ct. 1242, 1248 (2005); see also Georgevich v.
Strauss, 772 F.2d 1078, 1087 (3d Cir. 1985) (holding that
petitioner’s claim could be raised under § 1983 if the claim related
only to the manner in which parole decisions were made and did
not seek actual release on parole); Carson v. Johnson, 112 F.3d
818, 820-21 (5th Cir. 1997) (“If a favorable determination . . .
would not automatically entitle [the prisoner] to accelerated
release, the proper vehicle is a § 1983 suit.”) (citations omitted);
Anyanwutaku v. Moore, 151 F.3d 1053, 1055-56 (D.C. Cir. 1998)
(“[C]hallenges to state parole procedures whose success would not
necessarily result in immediate or speedier release need not be
brought in habeas corpus . . . .”).
        Nevertheless, neither Wilkinson nor Georgevich held that
§ 1983 is the exclusive means for bringing such claims, although
language in both opinions may suggest such a result. Our sister
circuits have struggled with this question, and no uniform answer
has emerged to the question of whether claims challenging only
parole procedures may be brought in habeas petitions. Compare
Moran v. Sondalle, 218 F.3d 647, 652 (7th Cir. 2000) (per curiam)
(“[C]hallenges to procedures employed to consider applications for
parole are civil actions under § 1983 and not collateral attacks
under § 2241 and § 2254, unless the prisoner contends that
application of his preferred procedures would have led to his
immediate release.”), with Docken v. Chase, 393 F.3d 1024, 1030
(9th Cir. 2004) (holding only that “§ 1983 was an appropriate

                                 6
        Section 2244, a provision of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), establishes the procedural
and substantive requirements which govern “second or successive”
habeas petitions. See In re Minarik, 166 F.3d 591, 599-600 (3d
Cir. 1999). As a procedural matter, § 2244(b)(3)(A) establishes a
“gatekeeping” mechanism that requires a prospective applicant to
“file in the court of appeals a motion for leave to file a second or
successive habeas application in the district court.” Felker v.
Turpin, 518 U.S. 651, 657 (1996). Once a petitioner moves for
authorization to file a second or successive petition, a three-judge
panel of the court of appeals must decide within thirty days
whether there is a prima facie showing that the application satisfies
§ 2244’s substantive requirements. 28 U.S.C. § 2244(b)(3)(D).
        Section 2244(b)(2) provides the relevant substantive
standard, which requires the dismissal of a “second or successive”
habeas application unless:

   (A) the applicant shows that the claim relies on a new rule
   of constitutional law, made retroactive to cases on
   collateral review by the Supreme Court, that was
   previously unavailable; or

   (B)(i) the factual predicate for the claim could not have
   been discovered previously through the exercise of due
   diligence; and

   (ii) the facts underlying the claim, if proven and viewed in
   light of the evidence as a whole, would be sufficient to
   establish by clear and convincing evidence that, but for
   constitutional error, no reasonable factfinder would have
   found the applicant guilty of the underlying offense.

Unless both the procedural and substantive requirements of § 2244
are met, the District Court lacks authority to consider the merits of



remedy” for challenging the timing of his parole eligibility
determination “without reaching the issue of whether § 1983 was
the exclusive remedy”). As we are able to dispose of this case on
jurisdictional grounds, we will not reach this contentious question.

                                 7
the petition.
                                  B.

        Section 2244’s strict procedural regime and substantive
standards only apply if Benchoff’s current petition is “second or
successive” within the meaning of the statute. Section 2244,
however, does not define what constitutes a “second or successive”
petition. Prior to the passage of AEDPA, we employed a collection
of equitable principles known as the “abuse of the writ” doctrine to
determine when a petition would be deemed abusive and thus
barred from consideration on its merits. United States v. Roberson,
194 F.3d 408, 410 (3d Cir. 1999). Under this doctrine, a petition
would be considered an abuse of the writ, inter alia, where the
subsequent petition raised a habeas claim which could have been
raised in an earlier petition and there was no legitimate excuse for
failure to do so. See McCleskey v. Zant, 499 U.S. 467, 493-95
(1991).
        The passage of AEDPA, however, has cast doubt on
whether we should continue to employ “abuse of the writ”
principles. In the wake of AEDPA, this Court has yet to decide
the abuse of the writ doctrine’s ongoing validity in this context.
Indeed, in United States v. Roberson, we used language that
suggests that AEDPA had completely superseded the abuse of the
writ doctrine. 194 F.3d at 411 (“AEDPA . . . replaced the
abuse-of-the-writ doctrine articulated in McCleskey.”).              In
Roberson, the defendant did not submit his second habeas petition
to us prior to filing his petition with the District Court, as required
by § 2244(b)(3)(A). As a result, we affirmed the District Court’s
dismissal of Roberson’s petition. While Roberson stated that
§ 2244 instituted new “gatekeeping” procedural provisions and
made the substantive standard for successive petitions more
stringent than under the abuse of the writ doctrine, it did not
elaborate, and we do not believe that Roberson eviscerated the
abuse of the writ doctrine to interpret AEDPA’s terminology.
Rather, we find that the abuse of the writ doctrine retains viability
as a means of determining when a petition should be deemed
“second or successive” under the statute.
        We are supported in this view by the fact that,
notwithstanding the AEDPA’s passage, our sister circuits
uniformly have continued to interpret “second or successive” with

                                  8
reference to the pre-AEDPA “abuse of the writ” doctrine. See
Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (“[I]t is
generally acknowledged that the interpretation of ‘second or
successive’ involves the application of pre-AEDPA abuse of the
writ principles.”); Muniz v. United States, 236 F.3d 122, 127 (2d
Cir. 2001) (using the “equitable principles underlying the ‘abuse of
the writ’ doctrine” to determine whether a petition is “second or
successive”); United States v. Barrett, 178 F.3d 34, 44 (1st Cir.
1999) (“The core of AEDPA restrictions on second or successive
§ 2255 petitions is related to the longstanding judicial and statutory
restrictions . . . known as the ‘abuse of the writ’ doctrine.”); see
also In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per curiam);
Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (per curiam).
        Moreover, the abuse of the writ doctrine’s ongoing validity
as a means of interpreting “second and successive” has been
strongly suggested by the Supreme Court, which has implied that
§ 2244 is a statutory extension and codification of the equitable
principles of the doctrine. See Slack v. McDaniel, 529 U.S. 473,
486 (2000) (suggesting that the definition of second or successive
would be same under AEDPA as under pre-AEDPA law); Felker,
518 U.S. at 664 (finding that § 2244 codified and added
restrictions that were “well within the compass of th[e]
evolutionary process” of the abuse of the writ doctrine, which is a
“complex and evolving body of equitable principles informed and
controlled by historical usage, statutory developments, and judicial
decisions”) (quoting McCleskey, 499 U.S. at 489).
        Informed by the teachings of the Supreme Court and our
sister circuits, therefore, we will look to principles of the abuse of
the writ doctrine in defining “second and successive.”

                                 C.

       The abuse of the writ doctrine dictates that we should treat
the term “second and successive” as a term of art, which is not to
be read literally. Therefore, “a prisoner’s application is not second
or successive simply because it follows an earlier federal petition.”
In re Cain, 137 F.3d at 235. The doctrine does, however, bar
claims that could have been raised in an earlier habeas corpus
petition. McCleskey, 499 U.S. at 493-95; Wise v. Fulcomer, 958
F.2d 30, 34 (3d Cir. 1992). Thus, a subsequent petition that

                                  9
challenges the administration of a sentence is clearly not a “second
or successive” petition within the meaning of § 2244 if the claim
had not arisen or could not have been raised at the time of the prior
petition. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.
2003); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003);
Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002); In re Cain, 137
F.3d at 236.
        The primary question, therefore, is whether Benchoff could
have raised this challenge to Pennsylvania’s parole procedures in
his first habeas petition. Benchoff was first denied parole on
September 12, 2000. He was again denied parole on September 14,
2001, and a third time on October 1, 2002. Each time Benchoff
was denied parole, the Parole Board used the same “fair
administration of justice” language without giving Benchoff the
statement of reasons he currently seeks. Therefore, when Benchoff
filed his original habeas petition on June 27, 2002, two of the three
parole decisions that used the contested “fair administration of
justice” language had already been issued.
        When courts have permitted a petitioner to challenge the
administration of his or her sentence in a subsequent habeas
petition, the challenged conduct has occurred after the filing of the
earlier petition. For example, in Crouch, the Eighth Circuit
specified that the petitioner “could not have raised his parole-
related claims in his first habeas petition” because “[h]is first
parole denial was dated November 23, 1998, some ten months after
he filed his § 2254 petition.” 251 F.3d at 724 (emphasis added);
see also James v. Walsh, 308 F.3d 162 (2d Cir. 2002) (claim
challenging the incorrect application of petitioner’s credit for time
served had not arisen when petitioner filed his first habeas
petition); Hill, 297 F.3d at 898 (finding the habeas petition was not
successive because the district court had not previously addressed
Hill’s challenge to the calculation of his parole date on the merits
and because those claims could not have been included in earlier
petitions challenging his conviction and sentence); Cain, 137 F.3d
at 236 (emphasizing that the petitioner could not have challenged
the prison disciplinary board’s decision to strip him of his good
time credits in his earlier petitions).
        In contrast, Benchoff had already received two out of three
identically phrased denials of parole at the time he filed his first
habeas petition. The third parole decision, which initially offered

                                 10
the same “fair administration of justice” rationale, was therefore
not a necessary factual predicate to Benchoff’s due process claim.
Indeed, even one of the parole denials would have been sufficient
for Benchoff to formulate his complaint. As a result, we can fairly
say that Benchoff “knew of all the facts necessary to raise his
[parole] claim before he filed his initial federal petition.” Crone v.
Cockrell, 324 F.3d 833, 837 (5th Cir. 2003). The remaining
question is whether Benchoff has a legitimate excuse for failing to
raise the parole claim in his first petition.
        As a preliminary matter, we do not gainsay that, intuitively,
there appears to be a principled distinction between petitions that
attack the underlying conviction and those that attack the
administration of the sentence arising from that conviction.
However, given the language and statutory purpose of § 2244,
which codifies the longstanding policy against piecemeal litigation
that was at the heart of the abuse of the writ doctrine, see
McCleskey, 499 U.S. at 485, it is not surprising that there is no
statutory or precedential authority for such a distinction. See Reid
v. Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996) (finding that
distinctions between challenges to the execution of a sentence and
challenges to the underlying conviction “are not made by . . . the
relevant statutory provisions, 28 U.S.C. § 2244(b) & 2254”); Cf.
Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001)
(determining that challenges to state parole board decisions must
be brought pursuant to 28 U.S.C. § 2254 and therefore require a
certificate of appealability even though the decision under attack
is not the underlying conviction but the execution of the sentence).
        Moreover, every Court of Appeals to have addressed the
question has required a petitioner to raise claims relating to his or
her underlying conviction in the same petition as available claims
dealing with the administration of the sentence and has found a
petitioner’s failure to do so to be an abuse of the writ. See Reid,
101 F.3d at 630; McGary v. Scott, 27 F.3d 181, 183 (5th Cir.
1994); Whittemore v. United States, 986 F.2d 575, 579 (1st Cir.
1993); Goode v. Wainwright, 731 F.2d 1482, 1483-84 (11th Cir.
1984); see also Fuller v. Baker, No. 94-3989, 1995 WL 390298, at
*1-*2 (6th Cir. June 30, 1995) (unpublished opinion). Therefore,
Benchoff can not claim that he was somehow excused from raising
the parole claim simply because his first petition challenged his
trial and conviction rather than the administration of his sentence.

                                 11
        Alternatively, Benchoff attempts to justify his failure to
include the parole claim in his first habeas petition because he had
not yet exhausted the parole claim in the Pennsylvania state courts
at the time he filed his first petition. Indeed, Benchoff had only
begun the process of filing for a series of state court remedies on
April 1, 2002.5 We disagree that this can excuse his failure to raise
the claim in his first petition.
        First, the fact that Benchoff had already raised his parole
claim in state court forecloses any argument that the factual
predicate for the claim was not developed or that Benchoff was
somehow unaware of the parole claim at the time he filed his first
habeas petition. See Olds v. Armontrout, 919 F.2d 1331, 1332 (8th
Cir. 1990) (“Having ‘presented each of these [grounds] to the state
courts before the first petition for habeas was filed . . . [petitioner]
hardly can contend that these claims were unknown to him at [the
time he filed his first habeas petition].’”) (quoting Antone v.
Dugger, 465 U.S. 200, 206 (1984) (per curiam)).
        Moreover, failure to have exhausted the parole claim is not
an excuse for Benchoff’s failure to raise the claim in his first
petition. In Rose v. Lundy, the Supreme Court held that

      “[I]f a prisoner deliberately withholds one of two



        5 We note, however, that Benchoff probably did not need to
seek a writ of mandamus from the Pennsylvania state courts before
filing for federal habeas relief. In Defoy v. McCullough, 393 F.3d
439, 445 (3d Cir. 2005), we held that “claims of constitutional
violations in the denial of parole [except for ex post facto claims]
in Pennsylvania need not be presented to the state courts via a
petition for writ of mandamus in order to satisfy the requirement of
exhaustion.” In light of Defoy’s holding that Pennsylvania
petitioners are not obligated to file either a writ of mandamus or a
writ of habeas corpus before challenging their parole denial on
non-ex post facto grounds, Benchoff likely did not need to seek
further relief in Pennsylvania state courts before going directly to
federal court. Nevertheless, as Defoy was decided well after
Benchoff filed his habeas petitions, Benchoff could have
reasonably believed he needed to seek a writ of mandamus prior to
filing this claim in federal court.

                                   12
       grounds for federal collateral relief at the time of filing
       his first application, in the hope of being granted two
       hearings rather than one or for some other such reason,
       he may be deemed to have waived his right to a hearing
       on a second application presenting the withheld ground.
       . . . Nothing in the traditions of habeas corpus requires
       the federal courts to tolerate needless piecemeal
       litigation, or to entertain collateral proceedings whose
       only purpose is to vex, harass, or delay”. . . . [A]
       prisoner who decides to proceed only with his exhausted
       claims and deliberately sets aside his unexhausted
       claims risks dismissal of subsequent federal petitions.

 455 U.S. 509, 521 (1982) (quoting Sanders v. United States, 373
 U.S. 1, 18 (1963)).
        Following this reasoning, the Fifth Circuit has held that “the
sole fact that the new claims were unexhausted when the earlier
federal writ was prosecuted will not excuse their omission.” Crone
v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003) (quoting Jones v.
Estelle, 722 F.2d 159, 168 (5th Cir. 1983) (en banc)). Crone is
closely analogous to Benchoff’s case. In Crone, the petitioner
challenged his sentence and alleged ineffective assistance of counsel
in his first habeas petition, which was dismissed with prejudice.
Several months later, Crone filed a second federal habeas petition
claiming that he was improperly denied jail-time credits. The Fifth
Circuit found that Crone should have brought his jail-time credit
claim in his first petition even though this claim had not yet been
exhausted in the state courts, because, at the time of his first petition,
the factual predicate for the jail-time credit claim was completely
established. Relying on Rose v. Lundy, the panel held that the
failure to raise the jail-time claim in his first petition constituted an
abuse of the writ, and the petition therefore was “successive” within
the meaning of § 2244(b). Id.
        We agree with the Fifth Circuit that Rose v. Lundy requires
a petitioner to either fully exhaust all claims prior to filing a petition
or to raise both exhausted and unexhausted claims in the first habeas
petition. If Benchoff’s parole claim was unexhausted, then Rose v.




                                   13
Lundy would require the dismissal of the petition without prejudice.6
 Benchoff could then have properly re-filed the petition once all of
his claims were exhausted. This re-filed petition would not
constitute a second or successive petition. See Slack v. McDaniel,
529 U.S. 473, 488 (2000) (holding that a habeas petition filed after
a previous petition was dismissed on exhaustion grounds is not a
second or successive petition); Christy v. Horn, 115 F.3d 201, 208
(3d Cir. 1997). Rather than follow the procedure prescribed by Rose
v. Lundy and its progeny, Benchoff chose instead to withhold his
parole claim while he exhausted it in state court, rendering this
petition “successive” under § 2244(b).

                                  D.

       Given that Benchoff’s petition is successive, the District
Court was required to have dismissed this petition because Benchoff
did not satisfy § 2244’s procedural and substantive requirements.
Benchoff failed to seek authorization from this Court prior to filing
his successive petition in the District Court as required under 28
U.S.C. § 2244(b)(3)(A). At all events, such authorization would not
be justified, as § 2244(b)(2) requires the dismissal of “second or
successive” petitions unless they fall into one of two exceptions,
both of which are inapplicable to Benchoff’s claim. Section 2244,
therefore, deprived the District Court of subject matter jurisdiction
to hear Benchoff’s parole claim.



         6We have endorsed the option of “[s]taying a habeas
 petition pending exhaustion of state remedies” as a “permissible
 and effective way to avoid barring from federal court a petitioner
 who timely files a mixed petition,” rather than outright dismissal.
 Crews v. Horn, 360 F.3d 146, 151-52 (3d Cir. 2004); see also
 Slutzker v. Johnson, 393 F.3d 373, 383 (3d Cir. 2004) (discussing
 the evolution of our “stay-and-abey” procedure). The Supreme
 Court has recently approved, but limited, the availability of this
 procedure, finding “stay-and-abey” appropriate only “when the
 district court determines there was good cause for the petitioner’s
 failure to exhaust his claims first in state court” and holding that it
 should not be employed “when his unexhausted claims are plainly
 meritless.” Rhines v. Weber, 125 S.Ct. 1528, — (2005).

                                  14
       For the foregoing reasons, we will vacate the judgment of the
District Court and remand with directions to dismiss the petition for
lack of subject matter jurisdiction.




                                 15
