                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                      No. 12-2124
                                     ____________

                                  RICKY MALLORY,

                                                      Appellant
                                           v.

            TABB BICKELL, SUPERINTENDENT, SCI HUNTINGDON;
                   DISTRICT ATTORNEY PHILADELPHIA;
                  ATTORNEY GENERAL PENNSYLVANIA
                              ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (E.D. Pa. No. 11-cv-05202)
                    District Judge: Honorable Eduardo C. Robreno
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 7, 2014

           Before: HARDIMAN, SLOVITER and BARRY, Circuit Judges.

                                 (Filed: April 14, 2014)

                                     ____________

                                       OPINION
                                     ____________

HARDIMAN, Circuit Judge.

      Ricky Mallory appeals the District Court’s order dismissing his petition for writ of

habeas corpus under 28 U.S.C. § 2254 and denying his motion to stay federal
proceedings. Mallory’s counsel has moved to withdraw pursuant to Anders v. California,

386 U.S. 738 (1967).1 For the reasons that follow, we will grant counsel’s motion and

affirm the judgment of the District Court.

                                                I

       As the lower courts have aptly noted, “[t]his case has a long and tortured

procedural history.” In 1998, Mallory was tried in Pennsylvania state court for attempted

murder and related charges. Prior to trial, Mallory signed, with the aid of counsel, a

standard jury trial waiver form and completed a lengthy written waiver colloquy. The trial

court did not conduct an oral colloquy, and Mallory’s counsel never requested one. The

court convicted Mallory of the charges and sentenced him to 35 to 70 years’

imprisonment.2 Mallory unsuccessfully appealed his conviction to the Pennsylvania

Superior Court, Commonwealth v. Mallory, 761 A.2d 1236 (Pa. Super. Ct. 2000), and the

Pennsylvania Supreme Court, Commonwealth v. Mallory, 766 A.2d 1245 (Pa. 2000).

       On December 11, 2001, Mallory sought collateral relief in the Philadelphia County

Court of Common Pleas under the Pennsylvania Post-Conviction Relief Act (PCRA), 42


       1
         While court-appointed habeas counsel is not required to comply with Anders, see
Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987), we have held that “[b]ecause Anders
procedures afford heightened protections . . . it is not erroneous to apply them in the habeas
context.” Simon v. Gov’t of the V.I., 679 F.3d 109, 115 (3d Cir. 2012). Accordingly, and because
no party has raised any issue as to the applicability of Anders, we analyze counsel’s request to
withdraw under the Anders framework.
       2
        Mallory was initially sentenced to 45 to 90 years’ incarceration. He then filed a
motion for reconsideration, and the court reduced his sentence to 35 to 70 years’
incarceration.
                                               2
Pa. Cons. Stat. §§ 9541–51, alleging, inter alia, that trial counsel was ineffective for

failing to ensure an oral waiver colloquy. The PCRA trial court granted Mallory a new

trial on the grounds that his lawyer’s failure to ensure an oral jury waiver colloquy

constituted ineffective assistance of counsel. The PCRA trial court found his other claims

moot.

        The Commonwealth appealed. In November 2005, the Pennsylvania Superior

Court vacated the order granting a retrial and remanded to the PCRA trial court to reach

Mallory’s outstanding claims. On appeal, the Pennsylvania Supreme Court reversed the

Superior Court, holding that the court should have analyzed for harmless error, and

remanded to the PCRA trial court to address the question of whether Mallory’s trial

counsel provided ineffective assistance. Commonwealth v. Mallory, 941 A.2d 686 (Pa.

2008). The Commonwealth petitioned the Supreme Court of the United States for writ of

certiorari, but was denied. Pennsylvania v. Mallory, 555 U.S. 884 (2008).

        On remand, the PCRA trial court again granted Mallory relief on the jury trial

waiver issue and ordered a retrial. Once again, the Commonwealth appealed and the

Pennsylvania Superior Court vacated the order for a retrial, holding that the trial court’s

finding of ineffective assistance of counsel was in error. Commonwealth v. Mallory, 6

A.3d 551 (Pa. Super. Ct. 2010). The Pennsylvania Supreme Court denied Mallory’s

petition for allowance of appeal. Commonwealth v. Mallory, 21 A.3d 1191 (Pa. 2011).

        The case then proceeded before the PCRA trial court, as Mallory’s outstanding

                                              3
claims were ripe for review. Mallory filed a motion requesting leave to amend his petition

to include a challenge to his sentence. In January 2012, the PCRA trial court dismissed

the motion because the request to amend the petition was untimely. Mallory appealed, and

the Pennsylvania Superior Court vacated the PCRA trial court’s dismissal, finding that

Mallory’s amended petition was not untimely, and remanded all of Mallory’s remaining

claims to the PCRA trial court, except for his claims challenging the legality of his

sentence, which it dismissed on the merits.

       In August 2013, Mallory filed, with the assistance of counsel, an application for

reconsideration en banc in the Superior Court, seeking a rehearing of his claims relating

to the legality of his sentence. The Pennsylvania Superior Court denied this application on

September 25, 2013 and remanded for further proceedings. Mallory appealed to the

Pennsylvania Supreme Court, where the matter is still pending.

       Meanwhile, in August 2011, Mallory—whose remaining PCRA claims were still

pending in the PCRA trial court—filed a petition for writ of habeas corpus under 28

U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania.

In addition, Mallory filed a motion requesting a stay of his federal habeas action pending

the decision of the Pennsylvania courts. In February 2012, Magistrate Judge Henry Perkin

recommended the denial of Mallory’s request to stay proceedings and the dismissal,

without prejudice, of Mallory’s habeas petition for failure to exhaust state remedies.

Magistrate Judge Perkin found that while Mallory’s one-year federal habeas limitation

                                              4
period began to run on March 12, 2001 (the date of final review in Pennsylvania courts),

the limitations period was tolled because he had filed his original state PCRA petition on

December 11, 2001, stopping the clock 274 days into the year-long period. Id. This left

Mallory with 91 days to file his habeas petition once his ongoing PCRA proceedings

become final and his state remedies are exhausted.

       In March 2012, the District Court adopted the Magistrate Judge’s

recommendation, dismissing Mallory’s petition without prejudice for failure to exhaust

and denying his motion to stay federal proceedings. In April 2012, Mallory appealed the

District Court’s ruling. One year later, we granted a certificate of appealability on the

issue of whether the District Court abused its discretion in denying the stay and

dismissing the habeas petition without prejudice for failure to exhaust. We appointed a

Federal Public Defender to represent Mallory on appeal. His counsel then moved to

withdraw pursuant to Anders.

                                             II3

       When a motion is filed pursuant to Anders, we determine whether: (1) counsel

adequately fulfilled the Anders requirement; and (2) an independent review of the record

presents any non-frivolous issues for appeal. United States v. Youla, 241 F.3d 296, 300

(3d Cir. 2001).


       3
         The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have
jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the District Court’s order de
novo. Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009).
                                              5
       To meet the first prong, appointed counsel must examine the record, conclude that

there are no non-frivolous issues for review, and request permission to withdraw. Counsel

must accompany a motion to withdraw with a “brief referring to anything in the record

that might arguably support the appeal.” Anders, 386 U.S. at 744. Mallory’s counsel

identified two potential grounds for appeal and demonstrated why they lack merit: (1)

Mallory’s habeas claim was properly dismissed without prejudice because he has not

exhausted state remedies; and (2) Mallory’s motion for a stay was properly denied

because the District Court’s dismissal of the habeas petition without prejudice does not

jeopardize the viability of Mallory’s collateral claim once state remedies are exhausted.

       First, counsel rightly concluded that there is no viable ground for appeal of the

dismissal of his habeas petition. A habeas petition cannot proceed unless all meritorious

claims have been exhausted in state court. See 28 U.S.C. § 2254(b)(1). Mallory’s appeal

involves a “mixed petition,” consisting of both exhausted and unexhausted claims. Faced

with a mixed petition, a district court has four options: (1) dismiss the petition without

prejudice; (2) stay the proceedings and hold them in abeyance until the claims are

exhausted; (3) allow Mallory to delete his unexhausted claims; and (4) deny the petition if

it found all of Mallory’s unexhausted claims to be meritless under § 2254(b)(2) (allowing

the denial of a petition on the merits “notwithstanding the failure of the applicant to

exhaust”). Rhines v. Weber, 544 U.S. 269, 274–78 (2005).

       Because the statute of limitations has not yet run on Mallory’s habeas claim, he

                                              6
suffers no adverse consequences from the District Court’s dismissal of his petition

without prejudice. His ability to re-file his petition is preserved for 91 days following the

completion of his PCRA proceedings. Therefore, the District Court properly denied his

petition without prejudice.

       Second, there is no viable ground for appealing the denial of Mallory’s request for

a stay, which should be granted only in “limited circumstances.” Rhines, 544 U.S. at 277.

A stay is appropriate “where an outright dismissal could jeopardize the timeliness of a

collateral attack.” Crews v. Horn, 360 F.3d 146, 152 (3d Cir. 2004). In Mallory’s case, the

dismissal of his habeas petition does not jeopardize his ability to timely re-file it once he

has exhausted state remedies. Therefore, this claim fails.

       We find that counsel’s thorough discussion of the reasons as to why no appealable

issue exists meets the requirements of Anders’s first prong. Our independent review of

the record confirms counsel’s conclusion that there are no non-frivolous issues for appeal.

                                                  III

       For the reasons stated, we will affirm the judgment of the District Court and, in a

separate order, grant counsel’s motion to withdraw.




                                              7
