Daniel Arthur HELEVA, Appellant v. Warden Mrs. M. BROOKS; PA State Attorney General; Monroe County District Attorney, 581 F.3d 187

OPINION OF THE COURT FUENTES, Circuit Judge: Appellant Daniel Heleva filed a habeas petition, challenging his state court conviction for first-degree homicide, near the end of the one-year statute of limitations for such petitions — even though he had not yet exhausted his claims in state court as required. Because Heleva feared that he would not have sufficient time left in the limitations period to file the petition in federal court once he had exhausted his claims, he instead filed a motion to stay the petition until he could fulfill the exhaustion requirement.

The District Court denied the motion, ruling that under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), it had authority to issue a stay only where the petition was “mixed” — that is, only for petitions containing both exhausted and unexhausted claims. Because the District Court did not consider the Supreme Court’s decision in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), in holding that the Rhines stay- and-abeyance procedure applies exclusively to mixed petitions, we vacate the order of dismissal and remand for further proceedings. I.

Heleva was convicted of first-degree criminal homicide in a November 2004 jury trial in the Pennsylvania Court of Common Pleas, resulting in a sentence of life in prison. Heleva’s counsel, Demetrius Fan-nick, appealed the conviction to the Superi- or Court of Pennsylvania, but failed to file a brief supporting the appeal. The Superi- or Court therefore dismissed the appeal on December 5, 2005. Heleva had 30 days from that date to seek review of the dismissal by the Pennsylvania Supreme Court.

Heleva proceeded pro se, filing a mandamus-type petition with the Superior Court in May 2006, which was dismissed for lack of jurisdiction a month later. He also filed an application for leave to file in the Supreme Court of Pennsylvania in September 2006, which was granted, after which he sought mandamus relief from that court. The Supreme Court denied his petition without considering the merits. Heleva’s petition for certiorari from the United States Supreme Court seeking review of the state supreme court’s decision was also denied.

Finally, Heleva filed a petition for post-conviction relief under the Pennsylvania PosNConviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. Ann. §§ 9541 et seq., in the Court of Common Pleas on December 4, 2006. A day later, on December 5, Fannick also filed a petition under the PCRA challenging Heleva’s conviction, unbeknownst to Heleva himself. Heleva later filed an amended PCRA petition on March 29, 2007, framing it as an amendment to the December 5 petition filed by Fannick.

On August 1, 2007, Heleva filed a habeas petition in the District Court for the Middle District of Pennsylvania under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254, along with a “Motion for Abeyance” seeking a stay of the § 2254 petition until he could exhaust his state law claims under the PCRA. The District Court dismissed the petition for failure to exhaust state court remedies pursuant to 28 U.S.C. § 2254(b)(1) and denied the motion for abeyance on the ground that a stay under Rhines v.

Weber would be available only for a “mixed” petition containing both exhausted and unexhausted habeas claims. Heleva timely appealed the District Court’s decision, and was granted a certificate of appealability on the issue of whether the denial of a stay was appropriate as to Heleva’s unexhausted § 2254 petition. II. The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have jurisdiction over the subsequent appeal pursuant to 28 U.S.C. §§ 1291 and 2253. We apply a plenary standard of review to the question of whether a district court has authority to stay a habeas petition. Crews v.

Horn, 360 F.3d 146, 149 (3d Cir.2004). III. A. One of the threshold requirements for a § 2254 petition is that, subject to certain exceptions, the petitioner must have first exhausted in state court all of the claims he wishes to present to the district court. 28 U.S.C. § 2254(b)(1) (“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 courts of the State.... ”).

The Supreme Court has interpreted § 2254(b)(1) to require dismissal of a habeas petition if it contains even a single unexhausted claim — the “total exhaustion” requirement. Rose v. Lundy, 455 U.S. 509, 518-19, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), however, the Supreme Court held that Lundy’s total exhaustion requirement was no longer the unyielding rule.

Rhines created an exception to Lundy for mixed petitions, recognizing that otherwise a petitioner might have to choose between pursuing his exhausted and unexhausted claims: As a result of the interplay between AEDPA’s 1— year statute of limitations and Lundy’s dismissal requirement [mandating the dismissal of a § 2254 petition containing any unexhausted claims], 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. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA’s 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court.

Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner’s chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim.... 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 275,125 S.Ct. 1528.

Therefore, the Supreme Court held that a district court may stay a mixed petition rather than dismiss, holding the petition in abeyance while the petitioner seeks exhaustion of any unexhausted claims in state court. Id. However, the Court feared that liberal use of this “stay-and-abeyance” procedure might undermine AEDPA’s “twin purposes” of encouraging the swift execution of criminal judgments and favoring the resolution of habeas claims in state court, if possible, before resorting to federal review. Id. at 276-78, 125 S.Ct. 1528.

Therefore, Rhines mandated that a district court should grant a stay only where “the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278, 125 S.Ct. 1528. Heleva contends that he satisfies these three requirements and thus should be granted a stay under Rhines.

His request for a stay is rooted in his concern that, if his current § 2254 petition is dismissed for failure to exhaust, he will not have sufficient time to file a new § 2254 petition once his PCRA claims are properly exhausted. AEDPA provides a one-year statute of limitations for filing a § 2254 petition once a defendant has completed the direct appeal process in state court. See 28 U.S.C. § 2244(d)(1). Heleva asserts that the one-year period began on December 5, 2005, when the Pennsylvania Supreme Court dismissed his direct appeal of his conviction.

Although Heleva’s filing of a PCRA petition tolled the running of the statute of limitations, see 28 U.S.C. § 2244(d)(2), he did not file it until December 4, 2006. Therefore, once the PCRA claims are resolved, Heleva fears he will have only one day to file a § 2254 petition in federal court before AEDPA’s one-year statute of limitations runs out, a time period that may not be enough given the vagaries of the prison mail system. He points to that tight timeline as good cause for allowing him to leave the § 2254 petition pending in federal court while he pursues exhaustion in state court.

The District Court reasoned that, whether or not Heleva could demonstrate good cause, Rhines confines the availability of stay-and-abeyance solely to mixed petitions. However, that limited approach ignores a case decided by the Supreme Court just one month after Rhines. In Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), the Supreme Court sanctioned the use of the stay-and-abeyance procedure in a context outside that of mixed petitions.

Pace involved the question of whether under 28 U.S.C. § 2244(d)(2), which provides for tolling of the AEDPA limitations period during the time when “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending,” an untimely filed petition for state post-conviction review triggers such tolling. The Supreme Court held that it does not, rejecting the petitioner’s argument that such an

interpretation of § 2244 could lead to a prisoner losing his chance at habeas review where he sought to exhaust his claims in state court in good faith and did not discover until much later that the state court petition was not properly filed. 544 U.S. at 416,125 S.Ct. 1807. The Court reasoned that “[a] prisoner seeking state post-conviction relief might avoid this predicament ... by filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted ....

A petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ [satisfying the test laid out in Rhines ] for him to file in federal court.” Id. The Court recommended this course of action without any mention that it could apply only to a mixed petition. Indeed, a distinction between mixed and non-mixed petitions would make no sense in the context of granting a stay to avoid penalizing a prisoner for reasonable confusion about state court filing requirements.

In that scenario, a prisoner could be equally subject to the dilemma described in Pace, whether his proposed AEDPA petition was mixed or contained only unexhausted claims. Thus Pace seems to open the door to utilizing the stay and-abeyance procedure in at least some limited circumstances beyond the presentation of a mixed petition. Appellees point to a Ninth Circuit decision as barring such an

interpretation of Pace. In Rasberry v. Garcia, 448 F.3d 1150 (9th Cir.2006), the Ninth Circuit held that it would “decline to extend [the stay and abeyance procedure] to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included.” Id. at 1154. Although that ruling facially supports the District Court’s approach, it is not pertinent here. Rasberry, which did not cite Pace in its discussion of stay and abeyance, was focused on the issue of mixed petitions.

The petitioner in Rasberry specifically argued that the district court, which had dismissed his case for failure to exhaust, should have first notified him that he had omitted two claims from his § 2254 petition that had been exhausted in state court, so that he could add those claims and make his a mixed petition eligible for a stay under Rhines. Id. at 1151. Unlike Heleva, nowhere did Rasberry contend that he had the kind of reasonable confusion about state filing requirements that Pace categorized as “good cause” for a stay.

The Rasberry court’s rejection of the idea that the petitioner would be eligible for a stay under Rhines merely because his petition could potentially have been brought as a mixed petition therefore has no bearing on whether a petitioner citing reasonable confusion under Pace may receive the benefit of stay and abeyance even if his petition is not mixed. And even if Rasberry was meant to completely foreclose stays for non-mixed petitions, we would not find it persuasive in light of Pace.

The full range of circumstances in which a habeas petitioner is eligible for stay-and-abeyance is not yet clear, and we do not decide here whether a district court has authority to grant a stay only in the specific scenarios described in Rhines and Pace. Still, the Supreme Court has indicated that a petitioner may file a “protective” petition meriting a stay under Pace even where only unexhausted claims are at issue. Therefore, the District Court’s

interpretation of Rhines as foreclosing the possibility of a stay for Heleva was in error. B. We leave it to the District Court to determine in the first instance whether Heleva has satisfied the three requirements for a stay as laid out in Rhines: good cause, potentially meritorious claims, and a lack of intentionally dilatory litigation tactics. 544 U.S. at 278, 125 S.Ct. 1528.

However, we do note that the fear Heleva cites as good cause for his stay request — that the small amount of time remaining in the one-year AEDPA limitations period may not be enough for him to file a § 2254 petition once he achieves exhaustion in state court — is not necessarily credible, as Heleva appears to have erred in calculating how much time remains for him to pursue claims under AEDPA.

Section 2244 of AEDPA states that the statute of limitations begins on “the date on which the judgment [to be reviewed] 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). Usually that provision is applied to hold that the limitations period runs from the date when a prisoner’s time for seeking certiorari from the United States Supreme Court expired. See, e.g., Kapral v. United States, 166 F.3d 565, 575 (3d Cir.1999).

However, where the prisoner never even reached the state supreme court level and thus could not have sought certiorari in the United States Supreme Court, courts have held the statute of limitations to run from the expiration of the time limit for seeking review of the state appellate court decision in the state supreme court. See, e.g., Long v. Wilson, 393 F.3d 390, 394 (3d Cir.2004); Erwin v. Elo, 130 F.Supp.2d 887, 890 (E.D.Mich. 2001).

Here, Heleva had 30 days from the affirmance of his conviction by the Superior Court (Pennsylvania’s appellate-level court) on December 4, 2006, to seek certiorari from the Pennsylvania Supreme Court. Therefore, for him the one-year limitations period did not begin until January 4, 2007, with the result that once his PCRA claims are exhausted he will actually have at least 30 days to file a § 2254 petition. The District Court should consider that circumstance in making its good cause determination. IV.

For the foregoing reasons, we will vacate the District Court’s dismissal of Heleva’s § 2254 petition and its denial of his stay request. We remand for the Court to consider whether Heleva has met the stay- and-abeyance standard set out in Rhines and thus should be granted a stay. . The dissent contends that we are "the first [court] to prohibit a district court from dismissing a petition for writ of habeas corpus immediately upon determining that the petitioner exhausted none ... of his federal claims in state court." Dissenting Op. at 193. We believe this mischaracterizes our holding.

We do not rule that district courts are prohibited from dismissing unexhausted petitions. We simply remand this matter to the District Court for it to decide whether Heleva is eligible, under the good cause test, for the stay- and-abeyance procedure set forth by the Supreme Court in Rhines and endorsed in Pace as governing just this type of situation. We see no problem in allowing such a course which we believe has been sanctioned by the Supreme Court, even in dicta. See Official Comm. of Unsecured Creditors of Cybergenics Corp. v.

Chinery, 330 F.3d 548, 561 (3d Cir. 2003) ("[W]e do not view [Supreme Court] dicta lightly.”). Moreover, although we have conducted our own independent review of the merits in this case, we note that, at oral argument, Monroe County itself declined to contest Heleva's position on the stay issue. . It is worth noting that the justices dissenting in Pace read this passage in the same manner as we do. Justice Stevens warned that "[t]he inevitable result of today's decision will be a flood of protective filings in the federal district courts.” 544 U.S. at 429, 125 S.Ct. 1807 (Stevens, J., dissenting).

That would not be the result of Pace if it only permitted protective petitions to the extent already described in Rhines. See also id. (describing the Pace majority as "encouraging all petitioners” — not just those with mixed petitions — who have doubts regarding the timeliness of their state petitions to seek stay and abeyance). .

To be clear, though we hold that good cause as described in Rhines and Pace does at least encompass more than mixed petitions, we reserve judgment on whether the scenario laid out by Heleva — a habeas petitioner with only hours remaining in the AEDPA limitations period — may qualify as good cause. The parties did not brief the question of what constitutes good cause, and we see no need to definitively outline the bounds of that concept here. . Heleva suggests that this calculation may not be correct based on a case from the Eastern District of Pennsylvania, Dockery v.

DiGuglielmo, No. 04-6025, 2006 WL 4457132 (E.D.Pa. Oct. 19, 2006), which stated that a Pennsylvania prisoner's "conviction became final in 1991, when the Pennsylvania Superi- or Court dismissed his direct appeal [for failure to file a brief]." Id. at *3. However, that statement does not indicate whether the court held his conviction to be final on the day the appeal was dismissed, September 3, 1991, or 30 days later, on October 3, 1991, since for the purposes of the court’s analysis of whether his conviction was final prior to the effective date of AEDPA the distinction was irrelevant.

In any case, dicta from an unpublished district court opinion cannot override our statement in Long that a state court judgment becomes final "after [the] time for seeking discretionary review expires when discretionary review is not sought." 393 F.3d at 394.