IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JASON MYERS, :

:

Petitioner :

: CIVIL NO. 4:08-CV-0100

:

v. : Hon. John E. Jones III

 :

:

WARDEN OF SCI-ALBION, et al., :

:

Respondents :

MEMORANDUM

 May 6, 2010

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Jason Myers (“Petitioner” or “Myers”), an inmate presently confined 

at the Albion State Correctional Institution (“SCI-Albion”) in Albion, Pennsylvania,

initiated the above action pro se by filing a Petition for Writ of Habeas Corpus

(“Petition”) under the provisions of 28 U.S.C. § 2254. (Doc. 1-2.) The Petition

originally was filed on January 9, 2008 in the United States District Court for the

Western District of Pennsylvania. By Order dated January 11, 2008, the case was

transferred to this Court in light of the fact that Myers was convicted in the Luzerne

County Court of Common Pleas, which is located in this District. (See Doc. 2.) The

case was opened in this Court on January 15, 2008. (See Doc. 4.) 

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On February 5, 2008, in accordance with United States v. Miller, 197 F.3d 644

(3d Cir. 1999), and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued a

formal notice to Myers that he either could have his petition ruled on as filed, or

withdraw his petition and file one all-inclusive § 2254 petition within the one-year

statutory period prescribed by the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). (Doc. 7.) The Order advised Myers that if he did not return his notice of

election within thirty (30) days, the Court would proceed to rule on the Petition as

filed. (See id. at 3-4.) Myers did not return his notice of election, and therefore, by

Order dated May 27, 2008, service of the Petition was directed. (Doc. 10.) 

 A Response to the Petition was filed on June 12, 2008. (Doc. 15.) Although 

Petitioner was afforded the opportunity to file a reply within fifteen (15) days of

Respondents’ filings (see Doc. 10 at 3), he chose not to do so. Therefore, the Petition

is ripe for review. For the reasons set forth below, Petitioner’s ineffective assistance

of counsel claim will be dismissed without prejudice for failure to exhaust state court

remedies. The remaining claims will be dismissed with prejudice as procedurally

defaulted.

BACKGROUND OF STATE COURT PROCEEDINGS

I. Criminal Conviction and Direct Appeal Proceedings

Following an incident on April 8 and 9, 2005, during which Myers brutally beat

2

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and then sexually assaulted his girlfriend, he was charged with involuntary deviate

sexual intercourse, terroristic threats, simple assault, and rape. (See Doc. 15,

Response, at 2.) A jury trial was held in the Luzerne County Court of Common Pleas

on May 2 through 4, 2006, after which the jury convicted Myers of involuntary

deviate sexual intercourse, simple assault, and terroristic threats. (See id.) The jury

was unable to reach a verdict on the charge of rape, and the trial court declared a

mistrial on that charge. (See id.)

On August 10, 2006, the trial court conducted a sentencing hearing after which

it imposed a sentence of eight and one half (8 1⁄2) to twenty (20) years imprisonment

on the count of involuntary deviate sexual intercourse; a consecutive sentence of

sixteen (16) months to five (5) years on the count of terroristic threats; and a

consecutive sentence of twelve (12) to twenty-four (24) months on the count of simple

assault. (See id.)

On August 31, 2006, Myers filed a direct appeal from his judgment of sentence

to the Pennsylvania Superior Court. (See id.; 1574 MDA 20061

.) However, on

December 28, 2006, counsel for Myers filed a praecipe to terminate the appeal stating

that, because Myers only sought to raise claims of ineffective assistance of counsel,

1

See Pennsylvania’s Unified Judicial System Webportal, Appellate Courts Docket Sheets,

available at http://ujsportal.pacourts.us/docketsheets/appellate.aspx

3

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and these claims cannot be pursued on direct appeal, but rather must be pursued in a

petition for post-conviction relief, he did not wish to pursue the direct appeal. (See

Doc. 15 at 3.) By Order dated December 29, 2006, the Pennsylvania Superior Court

discontinued Petitioner’s appeal. (Doc. 15-2, 12/29/06 Notice of Discontinuance of

Action.) 

II. Post-Conviction Relief Act Proceedings

On July 2, 2007, Myers’ counsel filed a petition on his behalf under

Pennsylvania’s Post Conviction Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. 

§§ 9541 et seq., in the Luzerne County Court of Common Pleas. (See Doc. 15-5,

PCRA Petition.) The PCRA petition alleges that Myers’ trial counsel was ineffective

in the following respects:

(a) Counsel failed to adequately investigate and prepare the defense of

this case.

(b) Counsel failed to have the voir dire jury selection stenographically

recorded.

(c) This ineffectiveness results in no record being made. The jury

pool was not questioned extensively relative to any prejudice they

might have relative to the underlying charges.

(d) The ineffectiveness of counsel so undermined the truth process that

no reliable adjudication of guilt or innocence could have taken

place.

(e) The failure to raise these claims earlier was the product of prior

counsel’s ineffectiveness, was not the fault of any rational strategic

4

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or tactical decision by counsel, and the ineffectiveness has resulted

in the conviction of an innocent individual.

(f) Counsel failed to file suppression Motions, call material witnesses,

file Motions in Limine.

(Id. at 2 ¶ 9.) Attached to the Response to the instant Petition, filed on June 12, 2008,

is a scheduling Order issued by the PCRA Court on May 28, 2008 scheduling a

hearing on the PCRA petition for June 27, 2008. (See Doc. 15-5 at 4.) 

In reviewing the record in this case to prepare to dispose of the instant Petition,

this Court engaged in computer research to ascertain the current status of Myers’

PCRA petition. That research revealed the following:

 On November 13, 2008, Myers filed an appeal to the Pennsylvania Superior 

Court from a June 27, 2008 Order denying his PCRA petition. (See Commonwealth v.

Myers, 2027 MDA 2008.2

) On November 4, 2009, the Pennsylvania Superior Court

affirmed the denial of Myers’ PCRA petition. (See id.) Myers filed a Petition for

Allowance of Appeal to the Pennsylvania Supreme Court on January 1, 2010.3

 (See

Commonwealth v. Myers, 174 MAL 2010.4

) As of the date of this Memorandum,

2

See Pennsylvania’s Unified Judicial System Webportal, supra note 1.

3

The Pennsylvania Supreme Court docket indicates that the petition was transferred from a

prior petition filed at 667 MT 2009 and that the filing date of November 30, 2009 is preserved. (See

174 MAL 2010 at 2-3.)

4

See Pennsylvania’s Unified Judicial System Webportal, supra note 1. 

5

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Myers’ Petition for Allowance of Appeal is pending before the Pennsylvania Supreme

Court. (See id.)

DISCUSSION

I. Standard of Review

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper 

mechanism for a state prisoner to challenge the “fact or duration” of his confinement.

Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). “[I]t is not the province of a

federal habeas court to reexamine state-court determinations on state-law questions.”

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Rather, federal habeas review is

restricted to claims based “on the ground that [petitioner] is in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle,

502 U.S. at 67-8; see also Pulley v. Harris, 465 U.S. 37, 41 (1984); Johnson v.

Rosemeyer, 117 F.3d 104 (3d Cir. 1997).

II. Procedural Thresholds for Section 2254 Petitions

A. Exhaustion

As a general rule, a state prisoner must exhaust available state court remedies 

before seeking habeas relief in federal court. 28 U.S.C. §§ 2254(b), (c); Cone v. Bell,

- - - - U.S. - - - - , - - - - , 129 S. Ct. 1769, 1780 (2009); Rose v. Lundy, 455 U.S. 509,

515-20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993); Gibson v.

6

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Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). “Unless it would be patently futile

to do so [state prisoners] must seek relief in state court before filing a federal habeas

petition . . . .” Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982).5

 The exhaustion

requirement “is not a mere formality. It serves the interests of comity between the

federal and state systems by allowing the state an initial opportunity to determine and

correct any violations of a prisoner's federal rights.” Gibson, 805 F.2d at 138.

To satisfy the exhaustion requirement, a federal habeas petitioner must have

presented the facts and legal theory associated with each claim through “one complete

round of the State’s established appellate review process.” O’Sullivan v. Boerckel,

526 U.S. 838, 844-45 (1999); see also Holloway v. Horn, 355 F.3d 707, 714 (3d Cir.

2004). The exhaustion requirement is satisfied if a petitioner’s claims are either

presented to the state courts directly on appeal from the judgment of sentence, or

through a collateral proceeding, such as a PCRA petition. Swanger v. Zimmerman,

750 F.2d 291, 295 (3d Cir. 1984). It is not necessary for a petitioner seeking federal

habeas relief to present his federal claims to state courts both on direct appeal and in a

PCRA proceeding. Id. However, a petitioner is not deemed to have exhausted the

5

Exceptions to the exhaustion requirement are made when: (1) the state corrective process is

so deficient as to render any effort to obtain relief futile, 28 U.S.C. § 2254(b); (2) acts of state

officials have, in effect, made state remedies unavailable to the petitioner, Mayberry v. Petsock, 821

F.2d 179, 184 (3d Cir. 1987); or (3) "inordinate delay" in state proceedings has rendered state

remedies ineffective. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v.

Cunningham, 819 F.2d 52, 55 (3d Cir. 1986).

7

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remedies available to him if he has a right under the state law to raise, by any

available procedure, the question presented. 28 U.S.C. § 2254(c); Castille v. Peoples,

489 U.S. 346, 350 (1989). The petitioner bears the burden of demonstrating that he

has satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir.

2000) (citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997)). 

B. Procedural Default

“[I]f [a] petitioner failed to exhaust state remedies and the court to which the

petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred . . . there is procedural

default for the purpose of federal habeas . . . .” Coleman v. Thompson, 501 U.S. 722,

735 n.1 (1991); McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). A federal

court can reach the merits of procedurally defaulted claims only if the petitioner

demonstrates either “cause and prejudice” in connection with the procedural default,

or that a fundamental miscarriage of justice would result if his claim was not

reviewed. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wenger v. Frank,

266 F.3d 218, 223 (3d Cir. 2001); Lines, 208 F.3d at 166.

Although the issue is best addressed by the state courts, a federal court may

dismiss a petition as procedurally barred if state law would unambiguously deem it

defaulted. See Carter v. Vaughn, 62 F.3d 591, 595 (3d Cir. 1995). Similarly,

8

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procedural default occurs when a petitioner presented the claim in the state system,

but the state court refuses to address the claim on the merits because of “a state-law

ground that ‘is independent of the federal question and adequate to support the

judgment.’” Cone, 129 S.Ct. at 1780 (quoting Coleman, 501 U.S. at 729). The

purpose of the procedural default rule is to prevent habeas petitioners from avoiding

the exhaustion doctrine by defaulting their claims in state court. Coleman, 501 U.S. at

732.

C. Mixed Petitions

Where a petition is “mixed”- i.e. it contains both exhausted and unexhausted

claims- the Court has several courses of action available to it. First, the Court can

dismiss the petition without prejudice in order to allow the petitioner to return to state

court and totally exhaust his claims, or to proceed in federal court on a petition which

raises only fully exhausted issues. See Rose, 455 U.S. 509. This approach advances

the underlying purpose of the exhaustion rule of ensuring comity between the state

and federal systems by allowing the state courts to fully pass upon the issues presented

before they are presented in federal court.

However, because some petitioners may be unable to fully exhaust their state

remedies on the claims presented in their mixed petitions before the one-year statute

of limitations for filing a federal habeas petition expires, a second course of action has

9

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developed. In this alternative approach, referred to as “stay and abeyance”, the Court

issues a stay of the federal habeas proceedings during the time in which the petitioner

exhausts state court remedies. See Rhines v. Weber, 544 U.S. 269 (2005). However,

in Rhines, the United States Supreme Court expressed the following concerns about

this approach:

Stay and abeyance, if employed too frequently, has the potential to

undermine the [ ] twin purposes [behind the statute of limitations and the

exhaustion doctrine]. Staying a federal habeas petition frustrates

AEDPA’s objective of encouraging finality by allowing a petitioner to

delay the resolution of the federal proceedings. It also undermines

AEDPA’s goal of streamlining federal habeas proceedings by decreasing

a petitioner’s incentive to exhaust all of his claims in state court prior to

filing his federal petition.

Id. at 277. To address these concerns, the Supreme Court emphasized that stay and

abeyance should be available only in “limited circumstances” where the district court

has determined that there was good cause for the petitioner’s failure to exhaust his

claims first in the state court, and that the claims sought to be exhausted are not

“plainly meritless.” Id. The Third Circuit Court of Appeals recently held that, a

petitioner seeking to obtain a stay and abeyance should “satisf[y] the three

requirements for a stay as laid out in Rhines: good cause, potentially meritorious

claims, and a lack of intentionally dilatory litigation tactics.” Heleva v. Brooks, 581

F.3d 187, 192 (3d Cir. 2009). 

D. Myers’ Habeas Petition

10

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Myers raises the following grounds in his Petition for Writ of Habeas Corpus:

1) My constitutional rights to a speedy trial was violated, and my sixth

amendment right to effective counsel was also violated (Doc. 1-2 at 4);

2) This was the conditions of bail on this case, so this Judge did not give

no 13 months credit for being on house arrest before being found guilty

(id. at 6);

3) According to law, my only way to raise this as a sentencing issue is by

filing a Habeas Corpus in this court6

 (id. at 8);

4) Judge Michael Toole keeps appointing new counsel every 90 days to

date. To avoid a[n] evidentiary hearing they know this trial was illegally

held. This Judge had me on ambiguity status on an electronic monitoring

device over 13 months before trial. This time should have been credited,

but the trial was already time barred (id. at 10).

 As more fully set forth below, all of Myers’ claims are unexhausted. As to his 

ineffective assistance of counsel claim raised in his first and third grounds, appellate

proceedings still are pending on Myers’ PCRA petition in which he raises solely

ineffective assistance claims. (See Commonwealth v. Myers, 174 MAL 2010.7

) 

Therefore, we must dismiss this claim without prejudice to allow the state proceedings

to conclude before entertaining the claim in this Court. For the reasons discussed

below, the issuance of a stay is not appropriate pending the completion of these

6

Myers further explains his third ground as follows: “Ineffective counsel has to be raised in

the Luzerne County Court. Not on direct appeal, and because they will not give me a hearing and

because the law states my issues also [e]ntail the constitution on sentencing issues I had to file this

Habeas Corpus.” (Doc. 1-2 at 8.) 

7

See Pennsylvania’s Unified Judicial System Webportal, supra note 1.

11

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proceedings. 

None of the claims contained in Myers’ remaining grounds have been raised

before any state court. Because Myers would be procedurally barred from presenting

these claims in state court, they are procedurally defaulted. Therefore, the purpose

behind the stay and abeyance procedure would not be served by granting a stay to

allow him to pursue the claims, and their dismissal with prejudice is appropriate.

1. Myers’ Ineffective Assistance of Counsel Claims

In his first ground, Myers alleges, inter alia8

, that his Sixth Amendment right to

effective counsel was violated. (See Doc. 1-2 at 4.) Myers’ third ground essentially is

an extension of his first ground in that he claims that he has to pursue his ineffective

assistance claims and sentencing issues through this habeas petition because he has

not been given a hearing on his PCRA petition. (See Doc. 1-2 at 8.) Myers reiterates

this point throughout his Petition in describing his efforts to pursue his claims in state

court. He explains that he sought to raise his ineffective assistance claims in his

PCRA petition because he could not raise them on direct appeal, but that the Luzerne

County Court was ignoring his petition and/or delaying the scheduling of a hearing,

and therefore, he had no choice but to file the instant Petition. (See id. at 4-13.) 

8

The other portion of Myers’ first ground raising a violation of his right to a speedy trial will

be addressed in subsection 2 below.

12

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Myers’ ineffective assistance of counsel claims still have not been fully

reviewed by the state courts. His Petition for Allowance of Appeal from the

Pennsylvania Superior Court’s Order affirming the denial of his PCRA petition in

which he raised solely ineffective assistance of counsel claims remains pending. (See

Commonwealth v. Myers, 174 MAL 2010.9

) Therefore, he has not yet exhausted his

state court remedies with respect to these claims. See Lovasz v. Vaughn, 134 F.3d

146, 149 (3d Cir. 1998) (holding second PCRA petition was pending until

Pennsylvania Supreme Court denied petitioner’s Petition for Allowance of Appeal). 

 To the extent Myers is claiming that exhaustion as to his ineffective assistance 

of counsel claims should be excused as a result of a delay in processing and disposing

of his PCRA petition, we find that the delay was not significant enough to excuse

exhaustion in this case. In Wojtczak v. Fulcomer, 800 F.2d 353 (3d Cir. 1986), the

Third Circuit Court of Appeals found the passage of thirty-three (33) months between

the filing of the petitioner’s post-conviction relief petition and his filing of a habeas

petition in federal court to be “inordinate” so as to excuse the exhaustion requirement

and to require the district court to entertain the habeas petition on the merits. Almost

fifteen and one half (15 1⁄2) years later, in Cristin v. Brennan, the Third Circuit

observed that the thirty-three (33) month delay in Wojtczak “remains the shortest

9

See Pennsylvania’s Unified Judicial System Webportal, supra note 1.

13

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delay held to render state collateral proceedings ineffective for purposes of the

exhaustion requirement.” 281 F.3d 404, 411 (3d Cir. 2002). In Cristin, the Third

Circuit found the twenty-seven (27) month delay between the filing of a PCRA

petition and a federal habeas petition to be insufficient to constitute an “inordinate”

delay. 

 Accordingly, where a twenty-seven (27) month delay has been determined to 

be insufficient to excuse exhaustion, neither the six (6) month delay that occurred in

this case between the filing of a PCRA petition in July 2007 and the filing of the

instant petition in January 2008, nor the almost one (1) year delay that occurred

between the filing of the PCRA petition and its disposition on June 27, 2008, qualifies

as an “inordinate” delay so as to excuse Myers from the exhaustion requirement.

Having determined that Myers has not exhausted his ineffective assistance of

counsel claims, we now turn to an analysis of whether the issuance of a stay is

appropriate pending the completion of state court proceedings. We begin by

considering whether Myers can demonstrate “good cause” for the issuance of a stay. 

To show good cause, a petitioner must show that requiring exhaustion will result in

his petition being time-barred under § 2244. See Heleva, 581 F.3d at 192. Section

2244 establishes a one-year statute of limitations for federal habeas corpus petitions

filed by a person in state custody. 28 U.S.C. § 2244(d)(1). However, 28 U.S.C. 

14

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§ 2244(d)(2) tolls the statute of limitations with respect to the “time during which a

properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending.” A “properly filed application”

for post-conviction relief under § 2244(d)(2) is one submitted according to the state’s

procedural requirements, such as rules governing time and place of filing. Lovasz,

134 F.3d at 148.

 In this case, Myers’ judgment of sentence became final on December 29, 2006, 

the date the Pennsylvania Superior Court granted his request to discontinue his direct

appeal. See Commonwealth v. McKeever, 947 A.2d 782, 785 (Pa. Super. Ct. 2008)

(holding defendant’s conviction became final, thus commencing the period for filing a

PCRA petition, on the date he discontinued his appeal). Therefore, the one-year

period under § 2244(d)(1) for filing a federal habeas petition began running on that

date. The statute of limitations ran for five (5) months and thirty (30) days until June

28, 2007, when Myers timely filed a PCRA petition. At that point, the statute of

limitations was tolled and remains tolled because appellate review of the PCRA

petition has not yet been completed. See 28 U.S.C. § 2244(d)(2); Lovasz, 134 F.3d at

149. Therefore, upon the disposition of his Petition for Allowance of Appeal by the

Pennsylvania Supreme Court, Myers still will have six (6) months and one (1) day to

file a habeas petition in this Court raising his ineffective assistance of counsel claims. 

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Because there will be sufficient time for Myers to return to this court to pursue a

federal habeas petition upon the completion of state court proceedings on his

ineffective assistance of counsel claims, he cannot demonstrate good cause to justify

the entry of a stay in this case. Further, because Myers cannot demonstrate good

cause for the entry of a stay, we need not analyze the remaining Rhines requirements

(i.e. whether his ineffective assistance claims have merit and whether there is a lack of

intentionally dilatory litigation tactics). Therefore, Myers’ ineffective assistance of

counsel claims will be dismissed without prejudice in order to allow the state courts to

complete their review of these claims.

2. Myers’ Remaining Grounds

None of the remaining grounds raised by Myers in the instant Petition were

raised previously in state court. Within his fourth ground, Myers alleges that the

PCRA judge was attempting to delay the disposition of his PCRA petition by

appointing new counsel every ninety (90) days. This claim already has been

addressed in part above in finding that the delay Myers faced in the disposition of his

PCRA petition was not “inordinate” so as to justify excusing him from the exhaustion

requirement. However, to the extent Myers also seeks relief in this Court based upon

the PCRA judge’s actions in delaying the disposition of his PCRA petition, his claim

is not cognizable in a habeas petition. Title 28 U.S.C. § 2254 provides that “a district

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court shall entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). A federal court’s habeas power is “‘limited . . . to a determination

of whether there has been an improper detention by virtue of the state court

judgment.’” Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998) (quoting

Henderson v. Frank, 155 F.3d 159, 168 (3d Cir. 1998)). “Thus, the federal role in

reviewing an application for habeas corpus is limited to evaluating what occurred in

the state or federal proceedings that actually led to the petitioner's conviction; what

occurred in the petitioner's collateral proceeding does not enter into the habeas

calculation.” Id. (emphasis in original). See also Thomas v. Miner, 317 Fed. Appx.

113, 115 (3d Cir. 2008) (affirming district court’s determination that petitioner’s

challenge to Pennsylvania Superior Court’s decision affirming denial of postconviction relief petition was not cognizable in habeas petition). Because we would

not be able to review this claim in the instant case, we need address it no further, and

it will be dismissed with prejudice.

Two of Myers’ claims are cognizable in a § 2254 habeas petition: his claim

within his first ground that his constitutional right to a speedy trial was violated, and

his claim within his second and fourth grounds that the sentencing judge erred in

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failing to give him credit for time served when he was on house arrest with an

electronic monitoring device before his trial. (See Doc. 1-2 at 4, 6, 10, Grounds 1, 2,

4.) However, Myers has not previously raised these issues in state court and therefore

has not exhausted his state court remedies with respect to these claims. Issuing a stay

to allow him to present these issues to the state courts would be futile because, even at

the time Myers filed the instant petition, any PCRA petition he would have filed in

state court would have been dismissed as untimely. A PCRA petition must be filed

within one year of the date on which the conviction became final. 42 Pa. Cons. Stat. 

§ 9545(b)(1). As already discussed, Myers’ conviction became final on December 29,

2006, the date on which the Pennsylvania Superior Court issued an Order (Doc. 15-2)

discontinuing his appeal pursuant to his request. See McKeever, 947 A.2d at 785. 

Therefore, he had until December 31, 200710 to file a PCRA petition. Because this

deadline passed prior to the filing of the instant Petition on January 9, 2008, Myers

would have been procedurally barred from returning to state court at the time of the

filing of this action in order to raise the new claims he raises here. As a result, these

claims are procedurally defaulted and may not be reviewed on the merits by this

Court. See Coleman, 501 U.S. at 735 n.1; McCandless, 172 F.3d at 260.

10Because the last day for filing, December 29, 2007, was a Saturday, the time for filing

would have been extended to Monday, December 31, 2007. See Pa. R. Civ. P. 106(b).

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Nevertheless, we must consider whether Myers has raised any facts which

would establish either “cause and prejudice” in connection with his procedural default,

or that a fundamental miscarriage of justice would result if his claims were not

reviewed. See Edwards, 529 U.S. at 451; Wenger, 266 F.3d at 223; Lines, 208 F.3d at

166. In order “[t]o show cause, a petitioner must prove ‘that some objective factor

external to the defense impeded counsel's efforts to comply with the State's procedural

rule.’” Sistrunk v. Vaughn, 96 F.3d 666, 675 (3d Cir. 1996) (quoting Murray v.

Carrier, 477 U.S. 478, 488 (1986)). In order to show actual prejudice, “the habeas

petitioner must prove not merely that the errors . . . created a possibility of prejudice,

but that they worked to his actual and substantial disadvantage . . . . This standard

essentially requires the petitioner to show he was denied ‘fundamental fairness[.]’” 

Werts v. Vaughn, 228 F.3d 178, 193 (3d Cir. 2000) (citations and some internal

quotations omitted). The second exception permits a federal court to address the

merits of a procedurally defaulted claim where the petitioner can establish a

“miscarriage of justice.” In Werts, the Court explained this exception as follows:

if the petitioner fails to demonstrate cause and prejudice for the default, the

federal habeas court may still review an otherwise procedurally defaulted

claim upon a showing that failure to review the federal habeas claim will

result in a ‘miscarriage of justice.’ Generally, this exception will apply only

in extraordinary cases, i.e., ‘where a constitutional violation has probably

resulted in the conviction of one who is actually innocent....’ [Murray, 477

U.S.] at 496, 106 S.Ct. 2639. Thus, to establish a miscarriage of justice, the

petitioner must prove that it is more likely than not that no reasonable juror

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would have convicted him. Schlup v. Delo, 513 U.S. 298, 326, 115 S.Ct.

851, 130 L.Ed.2d 808 (1995).

Id. Although Myers explains in his Petition that he had to pursue his ineffective

assistance of counsel claims in a PCRA petition rather than through a direct appeal, he

does not explain why he failed to raise the other issues he is raising here for the first time

either in the PCRA petition that still is pending in the Pennsylvania Supreme Court or

through a direct appeal. As a result, Myers’ Petition does not contain any facts

demonstrating that he is entitled to application of either of the exceptions to the

procedural default rule. Therefore, the Court cannot reach the merits of these claims, and

they will be denied with prejudice.

CONCLUSION

For the foregoing reasons, Petitioner’s ineffective assistance of counsel claim will 

be dismissed without prejudice for failure to exhaust state court remedies. The remaining

claims will be dismissed with prejudice as procedurally defaulted. An appropriate Order

will enter.

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Case 4:08-cv-00100-JEJ-SF Document 16 Filed 05/06/10 Page 20 of 20