2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-2005

Benchoff v. Colleran

Precedential or Non-Precedential: Precedential

Docket No. 03-3635

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Benchoff v. Colleran" (2005). 2005 Decisions. Paper 1271.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1271
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-3635

 

ROBERT BENCHOFF,

 Appellant

v.

RAYMOND COLLERAN

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 02-cv-01885)

District Judge: Honorable A. Richard Caputo

 

Argued February 8, 2005

Before: BARRY, FUENTES, and BECKER, Circuit Judges.

(Filed April 21, 2005)

GERALD J. PAPPERT

MICHAEL L. HARVEY(argued)

CALVIN R. KOONS

JOHN G. KNOOR, III

Office of the Attorney General, Litigation Section

15 Fl., Strawberry Square th

Harrisburg, PA 17120

Attorneys for Appellee

R. DAMIEN SCHORR (argued)

1015 Irwin Drive
2

Pittsburg, PA 15236

Attorney for Appellant

 

 OPINION OF THE COURT

 

BECKER, Circuit Judge.

Robert Benchoff appeals from an order of the District Court

denying his petition for a writ of habeas corpus claiming that he

was denied due process by the Pennsylvania Board of Probation

and Parole (the “Parole Board”) when it failed to give a meaningful

statement of reasons for denial of his parole. The determinative

question on appeal, however, is whether a petition challenging the

administration of a petitioner’s sentence, such as Benchoff’s parole

claim, should be considered a “second or successive” petition over

which the District Court lacked subject matter jurisdiction under 28

U.S.C. § 2244, if the petitioner had filed a prior petition that

challenged the underlying conviction or sentence. 

Examples of challenges to the administration of a sentence

are those claims that raise issues relating to conditions of

confinement, parole procedures, or calculation of good-time

credits. In this case, Benchoff filed his first federal habeas corpus

petition, which made claims related to the conduct of his trial and

his conviction, only several months before filing the instant

petition. We hold that because Benchoff’s parole claim had

ripened by that time, and he had no valid excuse for failing to raise

the claim in his first petition, the District Court lacked subject

matter jurisdiction and hence should have dismissed this petition

as “second or successive” as required by § 2244. In making this

determination, we will consult the abuse of the writ jurisprudence,

which predated the passage of § 2244, concluding that the doctrine

retains vitality as a tool for interpreting the term “second or

successive” under § 2244. 

We also reject Benchoff’s claim that he was not required to

raise his parole claim in his first habeas petition because he had not

yet exhausted the claim in the Pennsylvania courts. We will
1 Prior to filing this habeas petition, Benchoff first sought

relief from the Pennsylvania state courts. On April 1, 2002, he

filed a petition for a writ of mandamus in the Commonwealth Court

of Pennsylvania claiming that the Parole Board had denied him

parole for unconstitutional reasons. The Commonwealth Court

denied the writ three days later. Benchoff then filed a second

mandamus petition in Commonwealth Court arguing that the Parole

Board had not adequately revealed its rationale in denying parole.

The Commonwealth Court denied the writ, and its decision was

affirmed by the Pennsylvania Supreme Court on July 11, 2002.

Benchoff then filed a petition for a writ of habeas corpus in the

Pennsylvania Supreme Court on April 28, 2002, which was denied

May 15, 2002. Finally, Benchoff filed yet another mandamus

petition in the Commonwealth Court on May 28, 2002, which was

denied December 3, 2002.

3

therefore dismiss the appeal and remand to the District Court with

instructions to dismiss the petition. 

 

I. FACTS AND PROCEDURAL HISTORY

Benchoff was convicted of burglary, criminal trespass,

simple assault, and two counts of interference with the custody of

children in the Court of Common Pleas of Franklin County,

Pennsylvania, on August 15, 1995. He first became eligible for

parole from his sentence on December 16, 2000. 

On June 27, 2002, Benchoff filed a federal habeas petition

raising exhausted and unexhausted claims relating to the conduct

of his criminal trial. The District Court denied the petition and no

appeal was taken. Before any decision was rendered on his habeas

petition, Benchoff filed the present federal habeas petition pursuant

to 28 U.S.C. § 2254. The gravamen of Benchoff’s current petition 1

is that the Parole Board violated his right to due process by failing

to provide him with an adequate statement of reasons for denying

him parole. 

Benchoff was first reviewed for parole in 2000. The notice

of denial of parole stated only that the Board “has determined that

the fair administration of justice cannot be achieved through your

release on parole.” In 2001 and 2002, Benchoff was again
2 The revised 2002 notice of denial of parole stated:

Your best interests do not justify or require you being

paroled/reparoled; and, the interests of the

Commonwealth will be injured if you were

paroled/reparoled. Therefore, you are refused

parole/reparole at this time. The reasons for the

Board’s decision include the following:

Your version of the nature and circumstances of

the offense(s) committed.

The notes of testimony of the sentencing

hearing.

Your interview with the hearing examiner

and/or board member.

A-51.

4

reviewed and again denied for parole. Each time, the notice of

denial used the same “fair administration of justice” language.

Benchoff then filed this federal habeas petition. Approximately

two weeks after Benchoff filed this petition, the Parole Board

modified its 2002 decision and provided Benchoff with additional

information regarding the reasons for denial of parole.2

Since filing this petition, Benchoff has filed two more

federal habeas petitions (on May 7, 2003 and July 25, 2003). Each

of these petitions claims that it was a violation of the ex post facto

clause of the United States Constitution for the Parole Board to use

the 1996 amendment to Pennsylvania’s parole procedures in

making Benchoff’s parole decision because the 1996 amendment

was not in effect at the time of Benchoff’s 1995 conviction. 

The Magistrate Judge recommended that the present petition

and the May 7, 2003 petition be granted and suggested that the

Parole Board should be required to provide Benchoff with a

statement of reasons for denial of parole. The District Court,

however, declined to adopt the Magistrate Judge’s

recommendations, concluding that Benchoff did not have a due

process right to a statement of reasons. The District Court held that
3 We note that our decision today does not apply to

Benchoff’s ex post facto challenge to the Parole Board’s October

2002 decision to deny him parole. The Parole Board’s revised

statement of reasons, issued in October 2002, was substantively

different from the reasons it gave Benchoff on earlier occasions,

and was issued after Benchoff had filed his first habeas petition.

5

a petitioner has no procedural right to a statement of reasons for

denial of parole because neither federal nor Pennsylvania state law

creates a substantive liberty interest in parole. The District Court

did not address the May 7, 2003 petition’s ex post facto claims.

Benchoff has appealed the District Court’s denial of his habeas

petition only as to the due process parole claim.3

II. DISCUSSION

A.

As noted above, notwithstanding the fact that Benchoff had

already filed a prior petition for habeas corpus, the District Court

decided this case on the merits without addressing the threshold

question whether Benchoff’s habeas petition should have been

dismissed as a “second or successive” petition pursuant to 28

U.S.C. § 2244. Neither party has raised the successiveness issue in

the District Court or on appeal. 

Nevertheless, this Court must determine whether Benchoff’s

habeas petition was “second or successive” within the meaning of

28 U.S.C. § 2244(b), because § 2244 implicates both our appellate

jurisdiction and the District Court’s subject matter jurisdiction. See

Robinson v. Johnson, 313 F.3d 128, 138 (3d Cir. 2002) (“Most

courts that have considered the issue treat the successiveness issue

as comparable to the defense that the court lacks jurisdiction of the

subject matter.”); see also Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 95 (1998) (“[E]very federal appellate

court has a special obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower courts in a case under

review, even though the parties are prepared to concede it.”)

(quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934) (internal

quotation marks omitted)). Therefore, it is incumbent upon us to
4We have some doubt that Benchoff’s parole claim was

properly filed as a habeas corpus petition pursuant to § 2254.

Benchoff does not appear to be challenging the fact of confinement

or to be seeking speedier release, but rather, to be challenging only

the procedure used to communicate the Parole Board’s decision

denying him parole. In a very recent decision, the Supreme Court

held that challenges to parole eligibility proceedings which seek

new parole procedures but which would not necessarily result in

speedier release do not “lie[] at the ‘core of habeas corpus” and

instead are cognizable under 42 U.S.C. § 1983. Wilkinson v.

Dotson, 125 S.Ct. 1242, 1248 (2005); see also Georgevich v.

Strauss, 772 F.2d 1078, 1087 (3d Cir. 1985) (holding that

petitioner’s claim could be raised under § 1983 if the claim related

only to the manner in which parole decisions were made and did

not seek actual release on parole); Carson v. Johnson, 112 F.3d

818, 820-21 (5th Cir. 1997) (“If a favorable determination . . .

would not automatically entitle [the prisoner] to accelerated

release, the proper vehicle is a § 1983 suit.”) (citations omitted);

Anyanwutaku v. Moore, 151 F.3d 1053, 1055-56 (D.C. Cir. 1998)

(“[C]hallenges to state parole procedures whose success would not

necessarily result in immediate or speedier release need not be

brought in habeas corpus . . . .”).

Nevertheless, neither Wilkinson nor Georgevich held that

§ 1983 is the exclusive means for bringing such claims, although

language in both opinions may suggest such a result. Our sister

circuits have struggled with this question, and no uniform answer

has emerged to the question of whether claims challenging only

parole procedures may be brought in habeas petitions. Compare

Moran v. Sondalle, 218 F.3d 647, 652 (7th Cir. 2000) (per curiam)

(“[C]hallenges to procedures employed to consider applications for

parole are civil actions under § 1983 and not collateral attacks

under § 2241 and § 2254, unless the prisoner contends that

application of his preferred procedures would have led to his

immediate release.”), with Docken v. Chase, 393 F.3d 1024, 1030

(9th Cir. 2004) (holding only that “§ 1983 was an appropriate

6

address the successiveness issue sua sponte to ensure that we and

the District Court have jurisdiction to hear the merits of Benchoff’s

petition.4
remedy” for challenging the timing of his parole eligibility

determination “without reaching the issue of whether § 1983 was

the exclusive remedy”). As we are able to dispose of this case on

jurisdictional grounds, we will not reach this contentious question.

7

Section 2244, a provision of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), establishes the procedural

and substantive requirements which govern “second or successive”

habeas petitions. See In re Minarik, 166 F.3d 591, 599-600 (3d

Cir. 1999). As a procedural matter, § 2244(b)(3)(A) establishes a

“gatekeeping” mechanism that requires a prospective applicant to

“file in the court of appeals a motion for leave to file a second or

successive habeas application in the district court.” Felker v.

Turpin, 518 U.S. 651, 657 (1996). Once a petitioner moves for

authorization to file a second or successive petition, a three-judge

panel of the court of appeals must decide within thirty days

whether there is a prima facie showing that the application satisfies

§ 2244’s substantive requirements. 28 U.S.C. § 2244(b)(3)(D).

Section 2244(b)(2) provides the relevant substantive

standard, which requires the dismissal of a “second or successive”

habeas application unless:

(A) the applicant shows that the claim relies on a new rule

of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was

previously unavailable; or

(B)(i) the factual predicate for the claim could not have

been discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and viewed in

light of the evidence as a whole, would be sufficient to

establish by clear and convincing evidence that, but for

constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense.

Unless both the procedural and substantive requirements of § 2244

are met, the District Court lacks authority to consider the merits of
8

the petition.

B.

Section 2244’s strict procedural regime and substantive

standards only apply if Benchoff’s current petition is “second or

successive” within the meaning of the statute. Section 2244,

however, does not define what constitutes a “second or successive”

petition. Prior to the passage of AEDPA, we employed a collection

of equitable principles known as the “abuse of the writ” doctrine to

determine when a petition would be deemed abusive and thus

barred from consideration on its merits. United States v. Roberson,

194 F.3d 408, 410 (3d Cir. 1999). Under this doctrine, a petition

would be considered an abuse of the writ, inter alia, where the

subsequent petition raised a habeas claim which could have been

raised in an earlier petition and there was no legitimate excuse for

failure to do so. See McCleskey v. Zant, 499 U.S. 467, 493-95

(1991).

The passage of AEDPA, however, has cast doubt on

whether we should continue to employ “abuse of the writ”

principles. In the wake of AEDPA, this Court has yet to decide

the abuse of the writ doctrine’s ongoing validity in this context.

Indeed, in United States v. Roberson, we used language that

suggests that AEDPA had completely superseded the abuse of the

writ doctrine. 194 F.3d at 411 (“AEDPA . . . replaced the

abuse-of-the-writ doctrine articulated in McCleskey.”). In

Roberson, the defendant did not submit his second habeas petition

to us prior to filing his petition with the District Court, as required

by § 2244(b)(3)(A). As a result, we affirmed the District Court’s

dismissal of Roberson’s petition. While Roberson stated that

§ 2244 instituted new “gatekeeping” procedural provisions and

made the substantive standard for successive petitions more

stringent than under the abuse of the writ doctrine, it did not

elaborate, and we do not believe that Roberson eviscerated the

abuse of the writ doctrine to interpret AEDPA’s terminology.

Rather, we find that the abuse of the writ doctrine retains viability

as a means of determining when a petition should be deemed

“second or successive” under the statute. 

We are supported in this view by the fact that,

notwithstanding the AEDPA’s passage, our sister circuits

uniformly have continued to interpret “second or successive” with
9

reference to the pre-AEDPA “abuse of the writ” doctrine. See

Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001) (“[I]t is

generally acknowledged that the interpretation of ‘second or

successive’ involves the application of pre-AEDPA abuse of the

writ principles.”); Muniz v. United States, 236 F.3d 122, 127 (2d

Cir. 2001) (using the “equitable principles underlying the ‘abuse of

the writ’ doctrine” to determine whether a petition is “second or

successive”); United States v. Barrett, 178 F.3d 34, 44 (1st Cir.

1999) (“The core of AEDPA restrictions on second or successive

§ 2255 petitions is related to the longstanding judicial and statutory

restrictions . . . known as the ‘abuse of the writ’ doctrine.”); see

also In re Cain, 137 F.3d 234, 235 (5th Cir. 1998) (per curiam);

Reeves v. Little, 120 F.3d 1136, 1139 (10th Cir. 1997) (per curiam).

Moreover, the abuse of the writ doctrine’s ongoing validity

as a means of interpreting “second and successive” has been

strongly suggested by the Supreme Court, which has implied that

§ 2244 is a statutory extension and codification of the equitable

principles of the doctrine. See Slack v. McDaniel, 529 U.S. 473,

486 (2000) (suggesting that the definition of second or successive

would be same under AEDPA as under pre-AEDPA law); Felker,

518 U.S. at 664 (finding that § 2244 codified and added

restrictions that were “well within the compass of th[e]

evolutionary process” of the abuse of the writ doctrine, which is a

“complex and evolving body of equitable principles informed and

controlled by historical usage,statutory developments, and judicial

decisions”) (quoting McCleskey, 499 U.S. at 489).

Informed by the teachings of the Supreme Court and our

sister circuits, therefore, we will look to principles of the abuse of

the writ doctrine in defining “second and successive.”

C. 

The abuse of the writ doctrine dictates that we should treat

the term “second and successive” as a term of art, which is not to

be read literally. Therefore, “a prisoner’s application is not second

or successive simply because it follows an earlier federal petition.”

In re Cain, 137 F.3d at 235. The doctrine does, however, bar

claims that could have been raised in an earlier habeas corpus

petition. McCleskey, 499 U.S. at 493-95; Wise v. Fulcomer, 958

F.2d 30, 34 (3d Cir. 1992). Thus, a subsequent petition that
10

challenges the administration of a sentence is clearly not a “second

or successive” petition within the meaning of § 2244 if the claim

had not arisen or could not have been raised at the time of the prior

petition. See Singleton v. Norris, 319 F.3d 1018, 1023 (8th Cir.

2003); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003);

Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002); In re Cain, 137

F.3d at 236.

The primary question, therefore, is whether Benchoff could

have raised this challenge to Pennsylvania’s parole procedures in

his first habeas petition. Benchoff was first denied parole on

September 12, 2000. He was again denied parole on September 14,

2001, and a third time on October 1, 2002. Each time Benchoff

was denied parole, the Parole Board used the same “fair

administration of justice” language without giving Benchoff the

statement of reasons he currently seeks. Therefore, when Benchoff

filed his original habeas petition on June 27, 2002, two of the three

parole decisions that used the contested “fair administration of

justice” language had already been issued. 

When courts have permitted a petitioner to challenge the

administration of his or her sentence in a subsequent habeas

petition, the challenged conduct has occurred after the filing of the

earlier petition. For example, in Crouch, the Eighth Circuit

specified that the petitioner “could not have raised his parolerelated claims in his first habeas petition” because “[h]is first

parole denial was dated November 23, 1998, some ten months after

he filed his § 2254 petition.” 251 F.3d at 724 (emphasis added);

see also James v. Walsh, 308 F.3d 162 (2d Cir. 2002) (claim

challenging the incorrect application of petitioner’s credit for time

served had not arisen when petitioner filed his first habeas

petition); Hill, 297 F.3d at 898 (finding the habeas petition was not

successive because the district court had not previously addressed

Hill’s challenge to the calculation of his parole date on the merits

and because those claims could not have been included in earlier

petitions challenging his conviction and sentence); Cain, 137 F.3d

at 236 (emphasizing that the petitioner could not have challenged

the prison disciplinary board’s decision to strip him of his good

time credits in his earlier petitions). 

In contrast, Benchoff had already received two out of three

identically phrased denials of parole at the time he filed his first

habeas petition. The third parole decision, which initially offered
11

the same “fair administration of justice” rationale, was therefore

not a necessary factual predicate to Benchoff’s due process claim.

Indeed, even one of the parole denials would have been sufficient

for Benchoff to formulate his complaint. As a result, we can fairly

say that Benchoff “knew of all the facts necessary to raise his

[parole] claim before he filed his initial federal petition.” Crone v.

Cockrell, 324 F.3d 833, 837 (5th Cir. 2003). The remaining

question is whether Benchoff has a legitimate excuse for failing to

raise the parole claim in his first petition.

As a preliminary matter, we do not gainsay that, intuitively,

there appears to be a principled distinction between petitions that

attack the underlying conviction and those that attack the

administration of the sentence arising from that conviction.

However, given the language and statutory purpose of § 2244,

which codifiesthe longstanding policy against piecemeal litigation

that was at the heart of the abuse of the writ doctrine, see

McCleskey, 499 U.S. at 485, it is not surprising that there is no

statutory or precedential authority for such a distinction. See Reid

v. Oklahoma, 101 F.3d 628, 630 (10th Cir. 1996) (finding that

distinctions between challenges to the execution of a sentence and

challenges to the underlying conviction “are not made by . . . the

relevant statutory provisions, 28 U.S.C. § 2244(b) & 2254”); Cf.

Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir. 2001)

(determining that challenges to state parole board decisions must

be brought pursuant to 28 U.S.C. § 2254 and therefore require a

certificate of appealability even though the decision under attack

is not the underlying conviction but the execution of the sentence).

Moreover, every Court of Appeals to have addressed the

question has required a petitioner to raise claims relating to his or

her underlying conviction in the same petition as available claims

dealing with the administration of the sentence and has found a

petitioner’s failure to do so to be an abuse of the writ. See Reid,

101 F.3d at 630; McGary v. Scott, 27 F.3d 181, 183 (5th Cir.

1994); Whittemore v. United States, 986 F.2d 575, 579 (1st Cir.

1993); Goode v. Wainwright, 731 F.2d 1482, 1483-84 (11th Cir.

1984); see also Fuller v. Baker, No. 94-3989, 1995 WL 390298, at

*1-*2 (6th Cir. June 30, 1995) (unpublished opinion). Therefore,

Benchoff can not claim that he was somehow excused from raising

the parole claim simply because his first petition challenged his

trial and conviction rather than the administration of his sentence.
5 We note, however, that Benchoff probably did not need to

seek a writ of mandamus from the Pennsylvania state courts before

filing for federal habeas relief. In Defoy v. McCullough, 393 F.3d

439, 445 (3d Cir. 2005), we held that “claims of constitutional

violations in the denial of parole [except for ex post facto claims]

in Pennsylvania need not be presented to the state courts via a

petition for writ of mandamus in order to satisfy the requirement of

exhaustion.” In light of Defoy’s holding that Pennsylvania

petitioners are not obligated to file either a writ of mandamus or a

writ of habeas corpus before challenging their parole denial on

non-ex post facto grounds, Benchoff likely did not need to seek

further relief in Pennsylvania state courts before going directly to

federal court. Nevertheless, as Defoy was decided well after

Benchoff filed his habeas petitions, Benchoff could have

reasonably believed he needed to seek a writ of mandamus prior to

filing this claim in federal court.

12

Alternatively, Benchoff attempts to justify his failure to

include the parole claim in his first habeas petition because he had

not yet exhausted the parole claim in the Pennsylvania state courts

at the time he filed his first petition. Indeed, Benchoff had only

begun the process of filing for a series of state court remedies on

April 1, 2002. We disagree that this can excuse his failure to raise 5

the claim in his first petition. 

First, the fact that Benchoff had already raised his parole

claim in state court forecloses any argument that the factual

predicate for the claim was not developed or that Benchoff was

somehow unaware of the parole claim at the time he filed his first

habeas petition. See Olds v. Armontrout, 919 F.2d 1331, 1332 (8th

Cir. 1990) (“Having ‘presented each of these [grounds] to the state

courts before the first petition for habeas was filed . . . [petitioner]

hardly can contend that these claims were unknown to him at [the

time he filed his first habeas petition].’”) (quoting Antone v.

Dugger, 465 U.S. 200, 206 (1984) (per curiam)). 

Moreover, failure to have exhausted the parole claim is not

an excuse for Benchoff’s failure to raise the claim in his first

petition. In Rose v. Lundy, the Supreme Court held that

“[I]f a prisoner deliberately withholds one of two
13

grounds for federal collateral relief at the time of filing

his first application, in the hope of being granted two

hearings rather than one or for some other such reason,

he may be deemed to have waived his right to a hearing

on a second application presenting the withheld ground.

. . . Nothing in the traditions of habeas corpus requires

the federal courts to tolerate needless piecemeal

litigation, or to entertain collateral proceedings whose

only purpose is to vex, harass, or delay”. . . . [A]

prisoner who decidesto proceed only with his exhausted

claims and deliberately sets aside his unexhausted

claims risks dismissal of subsequent federal petitions.

455 U.S. 509, 521 (1982) (quoting Sanders v. United States, 373

U.S. 1, 18 (1963)). 

Following this reasoning, the Fifth Circuit has held that “the

sole fact that the new claims were unexhausted when the earlier

federal writ was prosecuted will not excuse their omission.” Crone

v. Cockrell, 324 F.3d 833, 837 (5th Cir. 2003) (quoting Jones v.

Estelle, 722 F.2d 159, 168 (5th Cir. 1983) (en banc)). Crone is

closely analogous to Benchoff’s case. In Crone, the petitioner

challenged his sentence and alleged ineffective assistance of counsel

in his first habeas petition, which was dismissed with prejudice.

Several months later, Crone filed a second federal habeas petition

claiming that he was improperly denied jail-time credits. The Fifth

Circuit found that Crone should have brought his jail-time credit

claim in his first petition even though this claim had not yet been

exhausted in the state courts, because, at the time of his first petition,

the factual predicate for the jail-time credit claim was completely

established. Relying on Rose v. Lundy, the panel held that the

failure to raise the jail-time claim in his first petition constituted an

abuse of the writ, and the petition therefore was “successive” within

the meaning of § 2244(b). Id.

We agree with the Fifth Circuit that Rose v. Lundy requires

a petitioner to either fully exhaust all claims prior to filing a petition

or to raise both exhausted and unexhausted claims in the first habeas

petition. If Benchoff’s parole claim was unexhausted, then Rose v.
6We have endorsed the option of “[s]taying a habeas

petition pending exhaustion of state remedies” as a “permissible

and effective way to avoid barring from federal court a petitioner

who timely files a mixed petition,” rather than outright dismissal.

Crews v. Horn, 360 F.3d 146, 151-52 (3d Cir. 2004); see also

Slutzker v. Johnson, 393 F.3d 373, 383 (3d Cir. 2004) (discussing

the evolution of our “stay-and-abey” procedure). The Supreme

Court has recently approved, but limited, the availability of this

procedure, finding “stay-and-abey” appropriate only “when the

district court determines there was good cause for the petitioner’s

failure to exhaust his claims first in state court” and holding that it

should not be employed “when his unexhausted claims are plainly

meritless.” Rhines v. Weber, 125 S.Ct. 1528, — (2005). 

14

Lundy would require the dismissal of the petition without prejudice.6

 Benchoff could then have properly re-filed the petition once all of

his claims were exhausted. This re-filed petition would not

constitute a second or successive petition. See Slack v. McDaniel,

529 U.S. 473, 488 (2000) (holding that a habeas petition filed after

a previous petition was dismissed on exhaustion grounds is not a

second or successive petition); Christy v. Horn, 115 F.3d 201, 208

(3d Cir. 1997). Rather than follow the procedure prescribed by Rose

v. Lundy and its progeny, Benchoff chose instead to withhold his

parole claim while he exhausted it in state court, rendering this

petition “successive” under § 2244(b). 

D.

Given that Benchoff’s petition is successive, the District

Court was required to have dismissed this petition because Benchoff

did not satisfy § 2244’s procedural and substantive requirements.

Benchoff failed to seek authorization from this Court prior to filing

his successive petition in the District Court as required under 28

U.S.C. § 2244(b)(3)(A). At all events, such authorization would not

be justified, as § 2244(b)(2) requires the dismissal of “second or

successive” petitions unless they fall into one of two exceptions,

both of which are inapplicable to Benchoff’s claim. Section 2244,

therefore, deprived the District Court of subject matter jurisdiction

to hear Benchoff’s parole claim.
15

For the foregoing reasons, we will vacate the judgment of the

District Court and remand with directions to dismiss the petition for

lack of subject matter jurisdiction.