DLD-023                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               _________________

                                     No. 12-1660
                                  _________________

                               GEORGE J. TAYLOR, III,
                                               Appellant

                                           v.

           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA;
                    JOSEPH P. NISH, SUPERINTENDENT
                  ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 1:11-cv-00642)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

           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

      George Taylor, a Pennsylvania prisoner, appeals from an order dismissing his

habeas corpus petition without prejudice for failure to exhaust state-court remedies. We
will vacate and remand for further proceedings.

       Because our decision today is narrow, we will not recite the factual history of this

case, with which the parties are familiar. Taylor filed a 28 U.S.C. § 2254 petition in

January 2010 (M.D. Pa. Civ. No. 1:10-cv-00206), in which he appeared to challenge the

processes used to issue a Pennsylvania state detainer, as well as the procedures

surrounding a then-upcoming parole revocation hearing. The District Court swiftly

dismissed the petition without prejudice as unexhausted on February 1, 2010. Taylor

then filed his second such petition—the one at issue in this appeal—in which he again

challenged the detainer and/or parole proceedings. In fact, the parties disagreed on the

main thrust of the petition; the Commonwealth took the view that Taylor was trying to

attack his parole revocation and urged that the petition be dismissed as procedurally

defaulted or, alternatively, as meritless, whereas Taylor reiterated that the “sole reason”

for his challenge was that there had “never been a detainer lodged [against him]” and thus

that he was held in custody illegally. Once again, the District Court dismissed Taylor’s

petition without prejudice as unexhausted, determining that he had “failed to exhaust his

state court remedies with respect to the detainer” because his attempts to pursue state

remedies had all been dismissed for failure to comply with procedural requirements. See

generally Taylor v. Nish, No. 1:11-CV-0642, 2012 WL 258659 (M.D. Pa. Jan. 27, 2012).




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Taylor timely appealed, 1 again arguing that the detainer lodged by the Commonwealth

was invalid.

       We have appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). 2 Our review

of the District Court’s exhaustion analysis is plenary. See Holloway v. Horn, 355 F.3d

91 707, 713 (3d Cir. 2004). Summary action is appropriate when an appeal presents no

substantial question. See Murray v. Bledsoe, 650 F.3d 246, 248 (3d Cir. 2011) (per

curiam); see also 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

       While Taylor’s habeas petition may indeed be “unexhausted,” that should not

portend the end of the inquiry, especially if the respondents urge (as is the case here) that

parts of the petition are either procedurally defaulted or, in the alternative, are moot; were

we to leave the judgment of the District Court undisturbed, Taylor would be able to file

another habeas petition based on the same set of facts, requiring an additional investment

of time and expense by Taylor, the respondents, and the courts. See Coleman v.

Thompson, 501 U.S. 722, 735 n.1 (1991) (discussing procedural default). While

resolution of Taylor’s petition is complicated by the fact that he and the Commonwealth

are arguing at cross purposes—he about the detainer, the Commonwealth primarily about


1
 The case was originally stayed due to a pending post-judgment motion. The motion has
been resolved, but since Taylor has not amended his notice of appeal, it is not currently
before the Court. See United States v. McGlory, 202 F.3d 664, 668 (3d Cir. 2000).
2
 Taylor’s request for a certificate of appealability is granted, as the dismissal of
his habeas petition on the ground of non-exhaustion is debatable, and the petition, at least
as measured against the limited record before this Court, can be said to state a valid due-
process claim. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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the parole issue—it appears that Taylor’s claims pertaining to the detainer may have been

mooted by the passage of time, and that his parole concerns may now be procedurally

defaulted due to a lack of an available state remedy. Although the Commonwealth urges

us to summarily affirm rather than remand, we believe that these inquiries are better

conducted by the District Court in the first instance.

       Accordingly, for the foregoing reasons, we will vacate the order of the District

Court and remand for proceedings consistent with this opinion.




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