IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICARDO MORALES, : CIVIL ACTION

PRO SE, :

Petitioner, :

:

 v. :

:

:

ROBERT SHANNON, ET AL., :

Defendants. : No. 05-6054

MEMORANDUM AND ORDER

PRATTER, DISTRICT JUDGE JUNE 27, 2007

Ricardo Morales petitions for habeas corpus relief pursuant to 18 U.S.C. § 2254 from a

conviction and sentence imposed by the Court of Common Pleas of Philadelphia County and

affirmed by the Pennsylvania Superior Court. The Court referred this matter to the Honorable

Judge M. Faith Angell, United States Magistrate Judge, for a Report and Recommendation. 

Judge Angell recommended that Mr. Morales’s Petition be denied for failure to exhaust state

remedies and dismissed without prejudice. Mr. Morales initially filed objections to the Report

and Recommendation (Docket No. 13), but then filed a motion seeking to withdraw his

objections (Docket No. 14). In his motion to withdraw, Mr. Morales asked the Court to approve

and adopt Judge Angell’s Report and Recommendation, and dismiss his federal habeas petition,

so that he could exhaust his state court remedies. 

After conducting a de novo review pursuant to 28 U.S.C. § 636(b)(1)(C), the Court

concludes that Mr. Morales failed to exhaust the state court remedies that were available to him. 

However, because Mr. Morales’s statutory one-year time limit to seek post-conviction relief in

state court expired on October 25, 2006, and in the absence of circumstances warranting statutory

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 1 of 19
 Mr. Morales was sentenced to concurrent terms of imprisonment of 15 to 30 years for 1

third degree murder, two and one-half years to five years for possessing an instrument of crime,

and one to two years for recklessly endangering another person. His simple assault conviction

was merged with third degree murder for purposes of sentencing. 

 Mr. Morales’s Motion for Reconsideration was prepared and filed by Mr. Morales’s trial 2

counsel, Daniel-Paul Alva. In this motion, Mr. Morales sought reconsideration of the sentence

imposed only. In particular, he argued that the sentence imposed was outside the applicable

sentencing guidelines, and that the victim impact statement given at his sentencing was improper. 

Mr. Morales did not challenge the underlying conviction. See Pet.’s Mot. for Reconsideration of

Sentence, Commonwealth v. Morales, No. C.P. 9910-0314. 

 Under Pennsylvania law, it appears from the available record that the trial court erred by 3

vacating Mr. Morales’s sentence upon his filing of a post-sentence motion. Pennsylvania Rule of

Criminal Procedure 720 (formerly Rule 1410) specifically provides that the “judge shall not

2

tolling, Mr. Morales’s claims are procedurally defaulted. For this reason, the Court will adopt in

part and modify in part the Report and Recommendation. The Court will stay the case, and Mr.

Morales will have 30 days to file a supplement to his petition pointing to facts, if any, that

demonstrate cause for the default and actual prejudice as a result of the alleged violations of

federal law, or demonstrating that failure to consider his claims will result in a fundamental

miscarriage of justice.

BACKGROUND

On July 12, 2000, following a bench trial before the Honorable Gregory E. Smith of the

Court of Common Pleas of Philadelphia County, Mr. Morales was convicted of third-degree

murder, possession of an instrument of crime, simple assault and recklessly endangering another

person. On July 24, 2000, he was sentenced to a term of imprisonment of 15 to 30 years. On 1

July 26, 2000, Mr. Morales filed a timely post-sentence motion for reconsideration of the

sentence. On the same day, the trial court vacated Mr. Morales’s sentence pending resolution of 2

his motion for reconsideration. On January 11, 2001, the trial court granted Mr. Morales’s 3

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 2 of 19
vacate the sentence pending decision on the post-sentence motion, but shall decide the motion as

provided in this paragraph.” Pa. R. Crim. P. 720. This Rule provides that a judge must decide a

post-sentence motion, such as the one filed by Mr. Morales, within 120 days of the filing of the

motion. Id. If the judge fails to decide the motion within 120 days, or to grant an extension as

permitted under the rules, the motion shall be deemed denied by operation of law. Id. 

 As noted above, see supra note 3, under Pennsylvania law, Mr. Morales’s motion should 4

have been denied by operation of law on November 26, 2000, once 120 days elapsed after the

motion was filed. However, the trial judge proceeded to grant Mr. Morales’s motion on January

11, 2001, 169 days after it was filed.

 Rule 1925(b) of the Pennsylvania Rule of Appellate Procedure provides as follows: 5

The lower court forthwith may enter an order directing the appellant to file of

record in the lower court and serve on the trial judge a concise statement of the

matters complained of on the appeal no later than 14 days after entry of such

order. A failure to comply with such direction may be considered by the appellate

court as a waiver of all objections to the order, ruling or other matter complained

of.

Pa. R. App. P. 1925(b). 

3

motion and reduced the sentence for third degree murder to a term of 13 to 26 years’

imprisonment. 

4

On January 26, 2001, Morales filed a notice of appeal with the Pennsylvania Superior

Court. Mr. Morales, who by this time was represented by counsel, submitted a Statement of

Matters Complained of on Appeal pursuant to Pennsylvania Rule 1925(b), arguing that the trial 5

court erred by finding malice, that the trial court returned inconsistent verdicts when it convicted

him of third degree murder while acquitting him of aggravated assault and attempted murder, and

that the evidence proffered at trial was insufficient to support the guilty verdict on the third

degree murder charge. 

The Commonwealth filed a motion to quash the trial court’s order imposing the reduced

sentence, arguing that the trial court had exceeded it jurisdiction by granting Mr. Morales’s postCase 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 3 of 19
 As the Superior Court held in a subsequent opinion, it granted the Commonwealth’s 6

motion to quash and vacated the trial court’s order because the trial judge had exceeded his

jurisdiction by granting Mr. Morales’s Motion for Reconsideration after the 120-day period

statutory period in which the judge could decide such a motion had expired. See Pa. R. Crim. P.

720. 

4

conviction motion more than 120 days after the motion was filed. On January 25, 2002, the

Superior Court granted the Commonwealth’s motion to quash, vacated the reduced sentence 6

imposed by the trial court, and ordered the trial court to reinstate its July 24, 2000 sentence of 15

to 30 years’ imprisonment. Commonwealth v. Morales, No. 410 EDA 2001 (Pa. Super. Ct. Jan.

25, 2002) (per curiam Order).

On remand the trial court refused to follow the Superior Court’s order, and, on May 22,

2002, reimposed the reduced sentence of 13 to 26 years. Both parties appealed. The trial court

ordered Mr. Morales to file a Rule 1925(b) Statement, but Mr. Morales failed to do so. In a nonprecedential opinion dated September 4, 2003, the Superior Court held that because Mr. Morales

did not file a Rule 1925(b) Statement, outlining the issues to be raised on appeal, he had waived

his claims. Therefore, the Superior Court affirmed his conviction. As to the Commonwealth’s

appeal, the court held that, pursuant to Pennsylvania Rule of Criminal Procedure 720, the trial

court lacked jurisdiction to reduce Mr. Morales’s sentence. The Superior Court vacated the trial

court’s May 22, 2002 order, and again reinstated the July 24, 2000 sentence. 

On December 10, 2004, the trial court complied with the Superior Court’s ruling and

reimposed its July 24, 2000 sentence of 15 to 30 years’ imprisonment. On January 5, 2005, Mr.

Morales timely filed a pro se notice of appeal, stating that he was appealing “his entire case,” as

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 4 of 19
 In his notice of appeal, Mr. Morales listed substantially the same claims that he now 7

raises in his habeas petition: illegal indictment, violation of Miranda rights, allowing

inadmissible testimony to be given in court, denial of speedy trial rights, ineffectiveness of

counsel, denial of jury trial, violation of plea agreement, and “whatever other issue’s [sic] that

Petitioner/ Defendants [sic] “Newly Appointed Attorney [to Replace Daniel Paul Alva]” may add

to this present appeal.” Pet.’s Notice of Appeal at 2, Commonwealth v. Morales, No. CP 99-10-

0314-11.

 The Superior Court’s per curiam Order, dated September 26, 2005, dismissed Mr. 8

Morales’s appeal because his “counsel . . . failed to file a Brief for Appellant.” Commonwealth

v. Morales, No. 229 EDA 2005 (Pa. Super. Ct. Sept. 26, 2005) (per curiam Order). 

5

well as the sentence of 15 to 30 years’ imprisonment imposed by the trial court. Thereafter, the 7

Court of Common Pleas appointed Edward C. Meehan, Jr. to serve as counsel to represent Mr.

Morales with respect to his appeal. The Superior Court granted Mr. Morales until August 29,

2005 to file his appellate brief. 

The record is unclear as to exactly what happened next. The Superior Court docket (No.

229 EDA 2005) reflects that Mr. Meehan entered an appearance as counsel on February 23,

2005. However, on April 5, 2005, Mr. Morales filed a pro se motion to appoint counsel, which

the court denied by order dated April 22, 2005. There is no entry on the docket indicating that

Mr. Meehan withdrew, or sought to withdraw, as counsel for Mr. Morales. However, neither Mr.

Morales or Mr. Meehan filed a brief with the Superior Court because the docket reflects that the

court dismissed the appeal on September 26, 2005 due to failure to file an appellate brief.8

Mr. Morales never sought to reinstate or re-file his state court appeal. Further, Mr.

Morales never filed a petition for post-conviction relief in state court, pursuant to Pennsylvania’s

Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. § 9541, et seq. Instead, Mr.

Morales filed the instant pro se petition for writ of habeas corpus in federal court pursuant to 18

U.S.C. § 2254.

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 5 of 19
 The Court reviewed Mr. Morales’s habeas petition (Docket No. 1), the Defendants’

9

response thereto (Docket No. 6), Mr. Morales’ reply and memorandum in support of his petition 

(Docket No. 9), the Report and Recommendation of Magistrate Judge Angell (Docket No. 10),

Mr. Morales’s objections thereto (Docket No. 13), and the record received from the Pennsylvania

state courts. 

6

 Mr. Morales signed and dated his petition on October 31, 2005, and filed it with the

Court shortly thereafter. The Respondents filed an answer to Mr. Morales’s habeas petition on

January 19, 2006. The Court referred this matter to Magistrate Judge Angell for a Report and

Recommendation. On June 26, 2006, Judge Angell filed a Report and Recommendation 

(Docket No. 10), recommending that Mr. Morales’s Petition be dismissed without prejudice due

to his failure to exhaust state court remedies. At that time, the statute of limitations for Mr.

Morales to file a petition pursuant to the PCRA had not yet run, and he had until October 25,

2006 in which to file a timely PCRA petition and seek review of some of his claims. 

LEGAL STANDARD

When a habeas petition has been referred to a magistrate judge, the Court may “accept,

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b). The Court must “make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is made.” Id.9

DISCUSSION

A. Failure to Exhaust

The habeas statute requires that prisoners exhaust their claims in state court before

seeking relief from the federal courts. See 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ

of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall

not be granted unless it appears that . . . the applicant has exhausted the remedies available in the

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 6 of 19
7

courts of the State.”). Absent exceptional circumstances, a federal court may not determine the

merits of a habeas corpus petition until the petitioner has exhausted all means of available relief

under state law. 28 U.S.C. § 3354(b); O’Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Slutzker

v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). Principles of comity “dictate that when a prisoner

alleges that his continued confinement for a state court conviction violates federal law, the state

courts should have the first opportunity to review this claim and provide any necessary relief.” 

O’Sullivan, 526 U.S. at 844-45. The petitioner bears the burden of proving that he has exhausted

available state remedies. Landano v. Rafferty, 897 F.2d 661, 668 (3d Cir. 1990).

A petitioner “shall not be deemed to have exhausted the remedies available . . . if he has

the right under the law of the state to raise, by any available procedure, the question presented.” 

28 U.S.C. § 2254(c). Before this Court may review the merits of Mr. Morales’s Petition, he

“must give the state courts one full opportunity to resolve any constitutional issues by invoking

one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at

844-45. To demonstrate exhaustion, the petitioner must show that the claim he asserts in federal

court has been “fairly presented” to the state courts. Landano, 897 F.2d at 668 (citing Picard v.

Connor, 404 U.S. 270, 275 (1971); Ross v. Petsock, 868 F.2d 639, 641 (3d Cir. 1989)). To be

“fairly presented,” the federal claim must be the substantial equivalent of that presented to the

state courts. Id. at 668. The Court of Appeals for the Third Circuit has interpreted “substantial

equivalence” to mean that “both the legal theory and the facts on which a federal claim rests must

have been presented to the state courts.” Id. (citing Ross, 868 F.2d at 641). This ensures that

“the same method of legal analysis” used by the federal court was available to the state court

when it adjudicated the claim. Id. at 669. A petitioner must exhaust state remedies as to each of

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 7 of 19
8

his federal claims. Id. 

In his federal habeas petition, Mr. Morales raises the following ten claims:

1. Illegal Indictment: “It was not 3rd degree murder, it was an accidental shooting in

which the bullet fired went through a wall and struck your Petitioner’s best friend,

Petitioner immediately called police and tried to save his best friends life.” See

Pet.’s Application Form for Habeas Corpus (Docket No. 1) at 9 and reverse side

of 9.

2. Violation of Petitioner’s Miranda Rights: “When police arrived at the accidental

shooting sight, the police questioned Petitioner as to what happened, and

Petitioner told the police everything that happened, and showed the police were

the gun was. And the police arrested petitioner. No one ever read or told Petitioner

of his Maranda rights [sic]. And the police continued this questioning at the

police station.” Id. 

3. Inadmissible Testimony: “Allowing dead mans [sic] mother to testify in court that

Petitioner was the king drug-dealer in Spanish Harlem, which had nothing to do

with the accidental shooting and death.” Id.

4. Denied Speedy Trial: “Petitioner requested a speedy trial, in writing, to court

appointed attorney Alva, and to president judge, and district attorneys office

[sic].” Id.

5. Denied Jury Trial: “Attorney Alva told your petitioner, if he droped [sic] his

request for a speedy trial, and a jury trial, and took a trial by judge - that the judge

and district attorney both agreed to give Petitioner a sentence no greater than 2 1⁄2

to 5 years. But if Petitioner pushed for a speedy jury trial, that the judge would put

Petitioner in prison until he was a very old man . . .” Id. 

6. Ineffective Assistance of Counsel: “Attorney Alva tricked Petitioner into a trial by

judge, and betrayed your Petitioner, and allowed all of the aforementioned to

happen to Petitioner.” Id.

7. Violation of Plea Agreement: “Petitioner was promised a 2 1⁄2 to 5 year sentence

for taking a trial by judge. But instead your petitioner was sentence to 15 to 30

years . . .” Id.

8. Denial of Due Process Rights: “Superior Court denied Petitioner Due process,

when they would not, [sic] appoint Petitioner anew [sic] attorney, when Petitioner

proved to them that attorney Meehan filed errorous [sic] docket statement and

would not answer Petitioners [sic] letters, or talk to Petitioner on the phone,

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 8 of 19
 It is unclear exactly what claims Mr. Morales may have raised on appeal because, as the 10

Superior Court noted, he failed to file a Rule 1925(b) Statement, which would have indicated

which issues he intended to raise on appeal. In its opinion, the Superior Court only specifically

referred to a single claim raised by Mr. Morales – the insufficient evidence claim – but then

stated that Mr. Morales had waived his “claims.” Presumably, Mr. Morales may have raised

informally other claims before the Superior Court, but because he failed to file a Rule 1925(b)

Statement, all such claims were deemed waived. Commonwealth v. Morales, No. 1779 EDA

2002, at 4 (Pa. Super. Ct. Sept. 4, 2003) (non-precedential slip. op.). 

9

concerning his appeal . . .” Id. 

9. Denial of Due Process Rights: “Supreme Court denied Petitioner Due Process

when it would not honor Petitioners [sic] writ of mandamus, and would not take

over Petitioners [sic] case, or hear Petitioners case based on all of the

aforementioned issue’s [sic] . . .” Id. 

10. Conspiracy to Sabotage Petitioner’s Appeal Process: “Petitioner believes there

was/is a conspiracy to sabotage his appeal process, between the Common Pleas

Court, the Superior Court, and the Supreme Court - in that, there is no other

reason for “[sic] the courts, highly trained professionals, to not act upon the legal

writs and factual evidence that Petitioner submitted to them, and not to uphold the

sworn duties of their offices - unless such a conspiracy was factual [sic] . . .” Id.

As noted above, due to his appointed counsel or otherwise, Mr. Morales never

successfully appealed his conviction within the Pennsylvania courts. Put differently, no appellate

court in Pennsylvania has considered the merits of any claims raised by Mr. Morales on any

appeal related to his conviction. In its September 4, 2003 opinion, the Superior Court noted that

Mr. Morales raised the claim that the evidence presented at trial was insufficient to sustain his

conviction for third degree murder. Commonwealth v. Morales, No. 1779 EDA 2002, at 4 (Pa.

Super. Ct. Sept. 4, 2003) (non-precedential slip. op.). However, the court found that Mr. Morales

had waived this claim (and, presumably, any other claims he may have raised on appeal)10

because in order to preserve a claim for appellate review, an appellant is required to file a

Statement of Matters Complained of on Appeal pursuant to Rule 1925(b), when ordered to do so. 

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 9 of 19
 None of the other possible “start dates” found in § 2244(d)(1) apply here: no state 11

action prevented the timely filing of the instant action; Mr. Morales does not rely on a new rule

of retroactively applicable constitutional law; and the factual predicates for Mr. Morales’s claims

10

Id. (citing Commonwealth v. Lord, 553 Pa. 415 (1998). The court held that any issues not raised

in a Rule 1925(b) statement are deemed waived. Id. Because the trial court had ordered Mr.

Morales to file a statement, and he failed to do so, the court found his claims to be waived. Id. 

When Mr. Morales attempted to appeal this ruling, his appointed counsel failed to file a

brief on appeal, and his appeal was dismissed without the court determining the merits of his

various claims. 

To satisfy the exhaustion requirement, state prisoners must “give the state courts one full

opportunity to resolve any constitutional issues by invoking one complete round of the State’s

established appellate review process.” O’Sullivan, 526 U.S. at 845. Mr. Morales has not

pursued “one complete round” of the direct appeal review process, and never initiated the PCRA

review process. Thus, Mr. Morales has failed to fully exhaust his state remedies because he has

not presented his federal claims to any state appellate court. This Court may not review the

merits of Mr. Morales’s claims until he has fully exhausted all of his claims in state court. Here,

however, Mr. Morales’s claims are now procedurally defaulted under state law because the

PCRA statute of limitations has expired.

B. Time Limitations

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a

petition for a writ of habeas corpus must be filed within one year from “the date on which the

[petitioner’s] judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) and (d)(2). The AEDPA one-year 11

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 10 of 19
stem from events that took place during the trial or on direct appeal and were discoverable in the

exercise of due diligence.

 The PCRA provides for “an action by which persons convicted of crimes they did not 12

commit and persons serving illegal sentences may obtain collateral relief.” 42 Pa. Cons. Stat.

Ann. § 9542. The PCRA is the exclusive means in Pennsylvania by which defendants may obtain

collateral relief. Id.

11

time limit is statutorily tolled during the time when “a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending 

. . . .” 28 U.S.C. § 2244(d)(2). An AEDPA time bar prevents consideration of the substantive

grounds advanced in the request for relief. 

The PCRA also provides a one-year limitations period. See 42 Pa. Cons. Stat. Ann. § 12

9545(b)(1). A petition must be filed within one year of the conclusion of direct review, or at the

expiration of the time period for seeking such review. Id. § 9545. The statute provides three

exceptions to this time limitation: (1) the failure to raise the claim previously was the result of

interference by government officials with the presentation of the claim in violation of the

Constitution or laws of the Commonwealth or the Constitution or laws of the United States; (2)

the facts upon which the claim is predicated were unknown to the petitioner and could not have

been ascertained by the exercise of due diligence; or (3) the right asserted is a constitutional right

that was recognized by the Supreme Court of the United States or the Supreme Court of

Pennsylvania after the expiration of the PCRA time period and which has been held by that court

to apply retroactively. Id. § 9545(b)(1).

The Supreme Court of Pennsylvania has held that the PCRA’s time limitations are

jurisdictional, meaning they “go to a court’s right or competency to adjudicate a controversy.” 

Commonwealth v. Cruz, 852 A.2d 287, 292 (Pa. 2004) (“[T]he time for filing a PCRA petition

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 11 of 19
 Both the Supreme Court and the Court of Appeals for the Third Circuit have since 13

recognized that rigid application of the ADEPA time limit in conjunction with the total

exhaustion rule can lead to problematic results. In Rhines v. Weber, 544 U.S. 269, 275 (2005),

the Supreme Court pinpointed the problem faced by prisoners filing mixed habeas petitions postAEDPA:

As a result of the interplay between AEDPA’s 1-year statute of

limitations andLundy’s dismissal requirement, petitioners who come

to federal court with “mixed” petitions run the risk of forever losing

their opportunity for any federal review of their unexhausted claims.

If a petitioner files a timely but mixed petition in federal district

court, and the district court dismisses it under Lundy after the

limitations period has expired, this will likely mean the termination

of any federal review. . . . The problem is not limited to petitioners

who file close to the AEDPA deadline. Even a petitioner who files

early will have no way of controlling when the district court will

resolve the question of exhaustion. Thus, whether a petitioner ever

receives federal review of his claims may turn on which district court

happens to hear his case.

Id. at 275; see also Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004) (noting that, under certain

circumstances, “AEDPA’s limitations period may act to deprive a petitioner of a federal forum if

dismissal of the habeas petition is required”) (internal citations omitted).

12

can be extended only to the extent that the PCRA permits it to be extended, i.e., by operation of

one of the statutorily enumerated exceptions to the PCRA time-bar.”). For this reason, equitable

tolling may not be applied to petitions brought under the PCRA. McCabe v. Pennsylvania, 419

F. Supp. 2d 692, 695-96 (E.D. Pa. 2006). A court may only grant an extension of the time limit

pursuant to the statutory exceptions. Commonwealth v. Fahy, 737 A.2d 214, 222-23 (Pa. 2002). 

If a federal habeas petition is mixed, i.e., contains both exhausted and unexhausted

claims, a federal court may stay the petition and hold it in abeyance until the unexhausted claims

have been exhausted. A stay, as opposed to a dismissal, avoids the problematic result of a

petition being time-barred upon the petitioner’s return to federal court after exhausting all his

claims. If, however, state law “clearly foreclose[s] state court review of unexhausted claims,” 13

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In Rhines, the Supreme Court held that under AEDPA, district courts retain the authority

to issue stays that are a proper exercise of their discretion. Rhines, 544 U.S. at 276. The Court

held that a district court should stay a mixed petition “if [1] the petitioner had good cause for his

failure to exhaust, [2] his unexhausted claims are potentially meritorious, and [3] there is no

indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. 

Under these circumstances, it would likely be an abuse of discretion to deny a stay. Id. See also

Lundy, 455 U.S. at 522 (the total exhaustion requirement was not intended to “unreasonably

impair the prisoner’s right to relief”); Crews, 360 F.3d at 154 (“district courts have the discretion

to stay mixed habeas corpus petitions but . . . when an outright dismissal could jeopardize the

timeliness of a collateral attack, a stay is the only appropriate course of action”).

Although this line of cases specifically addressed only “mixed” petitions, the

circumstances facing petitioners with exclusively unexhausted claims are closely analogous. As

the Supreme Court noted in Rhines, “[e]ven a petitioner who files early will have no way of

controlling when the district court will resolve the question of exhaustion. Thus, whether a

petitioner ever receives federal review of his claims may turn on which district court happens to

hear his case.” Rhines, 544 U.S. at 275. This is equally true for those petitioners with

exclusively unexhausted claims as it is for those with mixed petitions because under no

circumstances was the total exhaustion requirement intended to “unreasonably impair the

prisoner’s right to relief.” Lundy, 455 U.S. at 522. However, neither the Supreme Court nor

Court of Appeals for the Third Circuit has applied the stay-and-abeyance procedure to “unmixed”

petitions.

Alternatively, some courts have suggested that equitable tolling may be an appropriate

way to address petitions containing exclusively unexhausted claims. See, e.g., Duncan v.

Walker, 533 U.S. 167, 184 (2001) (Stevens, J., concurring) (“[A] federal court might very well

conclude that tolling is appropriate based on the reasonable belief that Congress could not have

intended to bar habeas review for petitioners who invoke the court’s jurisdiction within the 1-

year interval prescribed by AEDPA,” but “whose timely filed petitions remain pending in district

court past the limitations period, only to be dismissed after the court belatedly realizes that one or

more claims have not been exhausted.”); Hargrove v. Brigano, 300 F.3d 717, 721 (6th Cir. 2002)

(holding that, under certain circumstances, prospective equitable tolling is a reasonable

alternative to dismissal); Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir. 2002) (“under

appropriate circumstances the petitioner may be entitled to equitable tolling).

Here, Mr. Morales timely filed his habeas petition on October 31, 2005, at which point he

had almost the full year to file either a federal habeas petition or a state PCRA petition. When

the Report and Recommendation was filed on June 26, 2006, Mr. Morales had four months

remaining in both his federal and state limitations periods. As of the date of this Memorandum

and Order, however, both the AEDPA limitations period and the PCRA limitations periods have

expired. If Mr. Morales’s Petition is denied at this juncture, he will be effectively deprived of a

federal forum. Even if he were able to subsequently exhaust state remedies, he will be timebarred upon his return to federal court. See Crews, 360 F.3d at 151. The Court, however, will

not reach the question of whether a stay or equitable tolling would be appropriate in this case

because Mr. Morales’s claims are now procedurally defaulted under state law.

13

the exhaustion requirement is excused because under these circumstances, exhaustion is not

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 13 of 19
 The fact that Mr. Morales’s federal habeas petition was pending past the limitations 14

period does not constitute cause to excuse Mr. Morales’s state court procedural default for the

purpose of federal review. The PCRA limitations period is not tolled during federal habeas

review. Fahy, 737 A.2d at 222-23. As previously noted, equitable tolling may not be applied to

petitions brought under the PCRA. Id. at 222.

14

possible and, therefore, pursuit of state court remedies would be futile. See Touloson v. Beyer,

987 F.2d 984, 987 (3d Cir. 1993); Slutzker v. Johnson, 393 F.3d 373, 380 (3d Cir. 2004) (“The

exhaustion requirement does not apply, however, in cases where the state courts would not

consider the unexhausted claims because they are procedurally barred.”). The Court of Appeals,

however, has cautioned that “[t]he mere existence of a state procedural rule that would appear to

bar relief is not . . . sufficient to avoid the exhaustion requirement.” Slutzker, 393 F.3d at 380. 

Thus, if there is “any likelihood that the state courts would consider the merits of a petitioner’s

claim, the federal courts should dismiss his petition and allow him to seek relief in state courts.” 

Id. Conversely, “if state law ‘clearly foreclose[s] state court review of the unexhausted claims,’”

the exhaustion requirement is excused. Id. (citing Toulson, 987 F.2d at 987).

Here, the Pennsylvania Superior Court denied Mr. Morales’s appeal on September 26,

2005. Mr. Morales would have had thirty (30) days to appeal that order, which he did not do. 

Thus, Mr. Morales’s judgment of sentence became final on October 26, 2005, at which time the

AEDPA and PCRA one-year time limits began to run, giving Mr. Morales until October 25, 2006

to properly file a federal habeas petition. Mr. Morales timely filed the present petition on

October 31, 2005. As of the date of this Memorandum and Order, however, both the AEDPA

and PCRA one-year time limits have expired. If Mr. Morales were to file a PCRA petition, his

claims would only be heard on the merits if one of the statutory exceptions applied.14

Mr. Morales raises ten claims in his petition. Arguably, Mr. Morales raised at least one

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 14 of 19
 To the extent Mr. Morales would claim that ineffective assistance of counsel prevented 15

him from raising any of these claims, he cannot invoke this statutory exception because the term

“government officials” does not include petitioner’s own defense counsel, including courtappointed counsel. Pursell, 749 A.2d at 916.

15

of these claims in state court, which makes his petition a “mixed” petition. With respect to each

of these claims, however, it is clear that the statutory exceptions to the PCRA time limit do not

apply. First, nothing in the record indicates that Mr. Morales failed to raise any of these claims

in state court because of the interference of government officials. Second, the bases for his 15

alleged claims were not unknown to Mr. Morales at the time of his state court appeal because

each claim stems from events that took place during the trial or on direct appeal and were

discoverable long before in the exercise of due diligence. Finally, Mr. Morales does not assert a

newly recognized constitutional right.

Thus, the exhaustion requirement must be excused as to the unexhausted claims presented

here because they were not raised in state court before the PCRA one-year limitations period

expired and do not fall within any of the statutory exceptions to that time limit. See 28 U.S.C. §

2254(b)(1)(B); Slutzker, 393 F.3d at 380 (“Since Slutzker gets no help from the statutory

exceptions, and since the Pennsylvania courts will not consider late-filed petitions, there is no

doubt that Slutzker cannot now bring his Brady claim in the Pennsylvania courts. Thus his

failure to exhaust that claim is excused under 28 U.C.S. § 2254(b)(1)(B)”); Keller v. Larkins, 251

F.3d 408, 415 (3d Cir. 2001) (stating that if petitioner “could still present his federal claim to the

state courts at this late date, we would be compelled to dismiss his petition, but it is undisputed

that the Pennsylvania courts would not entertain that claim” where it is time-barred by the

PCRA); McCabe, 419 F. Supp. 2d at 696 (independently determining that petitioner’s

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 15 of 19
16

unexhausted claims were time-barred and consequently declining to dismiss the petition).

C. Procedural Default

Even if the exhaustion requirement is excused, the Court lacks jurisdiction to consider

“an issue of federal law on direct review from a judgment of a state court if that judgment rests

on a state-law ground that is both ‘independent’ of the merits of the federal claim and an

‘adequate’ basis for the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). Such

claims are considered to be procedurally defaulted. If a petitioner’s unexhausted claims have

been procedurally defaulted, a federal court may review those claims on the merits only if “the

prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). 

To establish the requisite cause, a petitioner must “demonstrate some objective factor

external to the defense that prevented compliance with the state’s procedural requirements.” 

Cristin v. Brennan, 281 F.3d 404, 412 (3d Cir. 2002) (quoting Coleman, 501 U.S. at 753). The

cause must be “something that cannot fairly be attributed to the petitioner.” Johnson v. Klem,

No. 04-410, 2004 WL 1175575, at *2 (E.D. Pa. May 26, 2004), Report and Recommendation

adopted by 2004 WL 1552003 (E.D. Pa. Jul. 9, 2004) (quoting Coleman, 501 U.S. at 753).

To establish prejudice, the petitioner must demonstrate that “the alleged error ‘worked to

[Petitioner’s] actual and substantial disadvantage.’” United States v. Rodriguez, 153 F. Supp. 2d

590, 594 (E.D. Pa. 2001) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). 

Specifically, Mr. Morales must show not merely the alleged errors during his trial created the

possibility of prejudice, but that “they worked to his actual and substantial disadvantage,

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 16 of 19
17

infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170.

To show that a fundamental miscarriage of justice will occur if the claims are not

reviewed, a petitioner must present new evidence that he is actually innocent of the crime for

which he has been convicted. McCabe, 419 F. Supp. 2d at 697 (citing Cristin, 281 F.3d at 412).

Because Mr. Morales’s claims were not procedurally defaulted at the time he filed this

Petition or at time he filed his objections to the Report and Recommendation, he has not had the

opportunity to be heard on these issues. Accordingly, Mr. Morales shall have 30 days to

demonstrate cause for the default and actual prejudice as a result of the alleged violations of

federal law, or to show that failure to consider the claims will result in a fundamental miscarriage

of justice. See McCabe, 419 F. Supp. 2d at 701 (providing petitioner 30 days to make showing

of cause and prejudice or fundamental miscarriage of justice).

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 17 of 19
 As noted above, Mr. Morales originally objected to the Report and Recommendation in 16

this case (see Docket No. 13), but later withdrew those objections (see Docket No. 14),

requesting that the Court deny his habeas petition without prejudice, which in his view, would

enable him to pursue the state court remedies that were available to him. The Court notes that no

order of this Court is required in order for Mr. Morales to pursue any action in state court. In

fact, as explained above, the federal habeas laws require an inmate, absent exceptional

circumstances, to pursue and exhaust all available remedies in state court prior to filing a habeas

petition in federal court. It is indeed unfortunate that the time frame within which Mr. Morales

could have filed for post-conviction relief in state court expired while his habeas petition was

pending in this Court. However, Mr. Morales need not have waited for this Court’s disposition

before filing for relief in state court and, although the Court determined that the one-year statute

of limitations under Pennsylvania’s PCRA expired, and, therefore, his options in the state courts

may be foreclosed, this Court cannot gainsay what action the state courts will take, and nothing

in this Court’s opinion should prevent Mr. Morales from seeking relief from the state courts. 

18

CONCLUSION

For the foregoing reasons, the Court will adopt in part and modify in part the Report and

Recommendation. Mr. Morales did not raise in state court any of the claims he seeks to present

here and thus failed to exhaust his state remedies. These claims, however, were procedurally

defaulted while Mr. Morales’s federal habeas petition was pending. Consequently, the Court 16

will provide Mr. Morales with 30 days from the date of this Memorandum and Order to identify

and address any cause and prejudice, or a fundamental miscarriage of justice, which would

permit the Court to rule on the merits of his procedurally defaulted claims.

 S/Gene E.K. Pratter 

 GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

June 27, 2007

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 18 of 19
 Mr. Morales has not made a substantial showing of the denial of a constitutional right 17

for any of his claims as required under 28 U.S.C. § 2253(c)(2).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RICARDO MORALES, : CIVIL ACTION

PRO SE, :

Petitioner, :

:

 v. :

:

ROBERT SHANNON, ET AL., :

Defendants. : No. 05-6054

ORDER

AND NOW, this 27th day of June, 2007, upon consideration of the Petition for Writ of

Habeas Corpus of Ricardo Morales (Docket No. 1), the Defendants’ response thereto (Docket

No. 6), Petitioner’s reply (Docket No. 9), and after de novo review of the Report and

Recommendation of M. Faith Angell, United States Magistrate Judge (Docket No. 10), and

Petitioner’s objections thereto (Docket No. 13), it is hereby ORDERED that:

1. The Report and Recommendation is ADOPTED IN PART and MODIFIED IN

PART;

2. Petitioner’s objections are DENIED;

3. The Petition (Docket No. 1) is STAYED to permit Mr. Morales to have thirty (30)

days from the date of this Order to supplement his Petition to identify facts

demonstrating cause for the default and actual prejudice as a result of the alleged

violations of federal law, or demonstrating that failure to consider the claims will

result in a fundamental miscarriage of justice; and 

4. There is no basis on which to issue a Certificate of Appealability under 28 U.S.C.

§ 2253.17

BY THE COURT:

 S/Gene E.K. Pratter 

 GENE E.K. PRATTER

UNITED STATES DISTRICT JUDGE

Case 2:05-cv-06054-GEKP Document 15 Filed 06/27/07 Page 19 of 19