1This information is taken from the Petition for Writ of

Habeas Corpus, the Response thereto, and the exhibits attached to

those pleadings.

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________

:

JOSEPH DYSON, : CIVIL ACTION

 Petitioner, :

:

 :

v. : NO. 03-4944

:

THE DISTRICT ATTORNEY OF THE :

COUNTY OF BUCKS, et al., :

:

 Respondents. :

________________________________:

HENRY S. PERKIN

UNITED STATES MAGISTRATE JUDGE 

 

REPORT AND RECOMMENDATION

Presently before the Court is the pro se Petition for

Writ of Habeas Corpus filed by Joseph Dyson (“Petitioner”)

pursuant to 28 U.S.C. section 2254, the Response to the Petition,

and the Traverse to the Response. The Petitioner is currently

incarcerated at the State Correctional Institution located at

Dallas, Pennsylvania. For the reasons that follow, it is

recommended that the Petition should be held in abeyance pending

exhaustion of Petitioner’s state court remedies.

I. FACTS AND PROCEDURAL HISTORY.1

On March 10, 1993, Petitioner entered an open guilty

plea to First Degree Murder, Robbery, Possessing Instruments of

Crime, Carrying a Firearm Without a License, and Criminal

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Conspiracy before the Honorable Isaac S. Garb of the Court of

Common Pleas of Bucks County. Following a degree of guilt

hearing, Petitioner was convicted of First Degree Murder. He was

sentenced to life imprisonment for the Murder conviction, with a

concurrent term of ten to twenty years’ incarceration on the

remaining charges.

On March 22, 1993, post-verdict motions were filed

challenging the sufficiency of evidence for the first degree

murder conviction. The motions were denied on May 28, 1993, and

on June 24, 1993, a re-sentencing hearing was held and the

original sentence was re-imposed. Petitioner did not raise a

direct appeal.

On July 6, 1994, Petitioner filed a pro se collateral

petition pursuant to the Pennsylvania Post Conviction Relief Act

(“PCRA”), 42 Pa. C.S.A. § 9541, et seq. Over the course of the

next five years, several counsel were appointed to represent

Petitioner, and they filed several amended petitions. Notes of

testimony were unavailable for an extensive period of time, and

then when they were finally forthcoming, they had to be corrected

due to an omission of a portion of the guilty plea colloquy. 

After the notes were corrected and made available to Petitioner,

a hearing was held on May 6, 1999, on what was then the final

amended petition. On May 24, 1999, the PCRA court issued an

opinion and order denying Petitioner’s request for postCase 2:03-cv-04944-ER Document 15 Filed 06/26/07 Page 2 of 10
3

conviction relief. 

On June 2, 1999, Petitioner filed a notice of appeal of

the denial of PCRA relief in the Pennsylvania Superior Court. On

February 24, 2001, the Superior Court issued an unpublished, nonprecedential memorandum opinion finding all but one of

Petitioner’s claims without merit. The Superior Court remanded

the case to the PCRA court for a determination of whether

Petitioner had ever requested that trial counsel file a direct

appeal on his behalf. On April 21, 2001, the Honorable Ward F.

Clark presided over a hearing on this issue. Judge Clark

determined that Petitioner was entitled to relief, and reinstated

Petitioner’s rights to direct appeal nunc pro tunc on April 20,

2001.

On May 1, 2001, Petitioner, through new counsel, filed

a notice of appeal from the judgment of sentence which had been

imposed in 1993 following his guilty plea. In this appeal,

Petitioner raised all the issues he previously asserted in his

PCRA petition and decided by the Superior Court in its February

24, 2001 decision. On October 30, 2001, the Superior Court

issued a memorandum opinion affirming the judgment of sentence of

the trial court. Petitioner filed a timely petition for

allowance of appeal with the Pennsylvania Supreme Court, which

was denied on June 12, 2002.

On August 19, 2003, Petitioner filed a pro se petition

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for writ of habeas corpus in the Bucks County Court of Common

Pleas. The court treated this filing as a second PCRA petition

and dismissed it as untimely without notice or a hearing on

August 21, 2003. Petitioner appealed the dismissal in the

Superior Court. On August 25, 2004, the Superior Court

determined that the writ of habeas corpus was a timely first PCRA

petition and remanded the case to the PCRA court for appointment

of counsel and for the scheduling of a hearing or notice of

intent to dismiss.

On August 30, 2004, the PCRA court filed its notice of

intent to dismiss the petition. On December 14, 2004, counsel

was appointed to represent Petitioner. On February 25, 2005, a

hearing was held before the Honorable Robert J. Mellon, and on

September 7, 2005, the PCRA court dismissed the petition. 

Petitioner filed a pro se appeal in the Superior Court. On

August 22, 2006, the Superior Court, retaining jurisdiction,

remanded to the PCRA court the issue of whether Petitioner’s

waiver of counsel on appeal was knowing, intelligent, and

voluntary.

On August 22, 2006, a hearing was held via video

conference before the Honorable David W. Heckler. On August 23,

2006, Petitioner’s appointed PCRA counsel was appointed as his

PCRA appellate counsel. On February 27, 2007, counsel informed

the trial court that after a review of the case and discussions

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with Petitioner, he intended to file a “no-merit” letter as to

the issues raised pursuant to Commonwealth v. Finley, 379 Pa.

Super. 390, 530 A.2d 213 (1988). Petitioner expressed his wish

to proceed pro se on appeal. On March 19, 2007, another hearing

was held via video conference. Following the hearing, the PCRA

court held that the waiver of counsel was voluntary, knowing, and

intelligent. 

On April 4, 2007, the Superior Court granted counsel’s

motion to withdraw and permitted Petitioner to proceed pro se. 

Petitioner was ordered to file his appellate brief no later than

June 3, 2007. A docket search on the website of the

Administrative Office of Pennsylvania Courts reveals that

Petitioner filed his appellate brief on June 4, 2007. No further

action has been taken on this case, which is active in the

Superior Court. 

On September 2, 2003, the instant Petition was filed by

the Clerk of Court. On September 14, 2004, the Honorable James

T. Giles granted Petitioner’s Motion to toll the AEDPA one-year

time limitation period for filing federal habeas petitions. On

February 24, 2006, Judge Giles ordered this case closed for

statistical purposes. On March 14, 2007, Petitioner’s Motion to

reopen the habeas proceeding was granted by Judge Giles, and

Petitioner was furnished with the Court’s current standard form

for filing a petition pursuant to 42 U.S.C. section 2254. 

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Petitioner returned the forms on March 30, 2007. On April 9,

2007, this case was referred by Judge Giles for preparation of a

Report and Recommendation. Respondents note that all four of

Petitioner’s claims are unexhausted in the state courts. 

II. DISCUSSION.

With respect to the issue of exhaustion of state court

remedies, Petitioner asks this Court to excuse the exhaustion

requirement “because he is suffering from a breakdown in the

State process that has deprived him of a meaningful opportunity

to litigate his issues and such remedy has been ineffective to

correct the violations of his federally protected rights.” 

Traverse, p. 2. Petitioner contends that:

 The State process has proven itself to

be an inadequate and ineffective remedy. It

has denied Dyson access to a process with

rights afforded to similarly situated

litigants. Dyson was denied appointed

counsel’s assistance in amending his pro se

petition and in presenting his issues in

acceptable legal terms. He was also denied

the required independent reasoning of the

trial court for the issues which have been

disposed, where the trial court improperly

adopted the prosecutor’s opposition brief to

supply the reasoning for denying relief,

without addressing the issues before the

court for review. 

Traverse, p. 2. Petitioner’s PCRA appeal has not yet been

completed. As such, he has not yet exhausted his state remedies. 

Not only are remedies available in state court, Petitioner is

actively pursuing them. Petitioner filed his Motion to Reopen

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the instant Petition because he contends that “the state process

has been ineffective to correct the violations of the

Petitioner’s federally protected rights and it has the Petitioner

in a legal stranglehold. . . . This habeas action is the

Petitioner’s only legal recourse and he is asking this Honorable

Court to excuse the exhaustion requirement.” Mot. to Reopen, p.

2. 

An exception to the exhaustion requirement is made

“only if there is no opportunity to obtain redress in state court

or if the corrective process is so clearly deficient as to render

futile any effort to obtain relief.” Duckworth v. Serrano, 454

U.S. 1, 3 (1981)(citations omitted); Toulson v. Beyer, 987 F.2d

984, 987 (3d Cir. 1993). The United States Court of Appeals for

the Third Circuit has held that “our case law forecloses a

District Court from excusing exhaustion ‘unless state law clearly

forecloses state court review of claims which have not previously

been presented to a state court.’” Coady v. Vaughn, 251 F.3d

480, 489 (3d Cir. 2001)(quoting Lines v. Larkins, 208 F.3d 153,

163 (3d Cir. 2000)(emphasis in original)). The record reveals

that Petitioner has been continuously granted relief in the state

court. Moreover, Petitioner makes no argument to support his

allegations that the state court has been ineffective in

reviewing his claims. 

Under certain circumstances, the United States Supreme

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2Although Crews was decided prior to the Supreme Court’s

decision in Rhines, which approved but limited the availability

of the stay and abeyance procedure, Crews is consistent with

Rhines in determining that such a stay should be conditioned on

the petitioner returning to federal court within a reasonable

time after exhaustion. Bowen v. Palakovich, No.CIV.A. 06-3378,

2007 WL 1056821, at *1 n.2 (E.D. Pa. Apr. 4, 2007)(quotations and

citations omitted).

8

Court has held that “it is appropriate to stay and abey the

federal habeas proceedings while the petitioner exhausts his

unexhausted claims in state courts.” Rhines v. Weber, 544 U.S.

269, 277-278 (2005). The Court specifically stated that the

court should stay, rather than dismiss, a petition when a

petitioner exhibits “reasonable confusion about whether a state

filing would be timely” and thereby shows “good cause” for filing

in federal court. Id. at 125 S.Ct. 1813-1814 (citing Pace). 

The United States Court of Appeals for the Third Circuit has

provided that thirty days is a reasonable length of time to

permit the filing of the post-conviction petition, and that

petitioner should be given another thirty-day reasonable interval

after the denial of that relief to return to federal court. 

Crews v. Horn, 360 F.3d 146 (3d Cir. 2004). In the event that a

petitioner fails to meet either time limit, however, the stay

should be vacated nunc pro tunc. Id. at 154.2

This case has been stayed once before, at Petitioner’s

request. There will be no prejudice to Petitioner if the same

course of action were followed because Petitioner has still not

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exhausted his state court remedies. Although an examination of

the record reveals some delay in the state court proceedings,

some of the delay can be attributed to Petitioner himself. This

Court has checked the docket sheet for Petitioner’s case pending

in the Superior Court, and the appeal is still active as of the

date of this Report and Recommendation. Petitioner has been

granted his wish to proceed pro se in that court, and he

submitted his appellate brief on June 4, 2007. The

Commonwealth’s brief is due to be filed on July 3, 2007. It is

respectfully recommended that the instant Petition should again

be stayed in order that Petitioner may exhaust his state court

remedies.

 Therefore, I make the following:

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RECOMMENDATION

AND NOW, this 26th day of June, 2007, IT IS

RESPECTFULLY RECOMMENDED that the instant Petition for Writ of

Habeas Corpus should be held in abeyance pending Petitioner’s

exhaustion of his claims in the Pennsylvania state courts. 

Within thirty days of the conclusion of the state court

proceedings, including any appellate proceedings related thereto,

Petitioner should be ordered to notify the Court that those

proceedings are concluded and the case is ready to proceed in

this Court.

BY THE COURT:

 /s/ Henry S. Perkin 

HENRY S. PERKIN

United States Magistrate Judge

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