Hayes v. Tice

• Decision Date: 25 March 2020
• Docket Number: Civil Action No. 17-198
• Parties: DAVON RENEE HAYES, Petitioner, v. ERIC TICE, Superintendent of SCI Smithfield and THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

DAVON RENEE HAYES, Petitioner, v. ERIC TICE, Superintendent of SCI Smithfieldand THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

Civil Action No. 17-198

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

March 25, 2020

District Judge Joy Flowers Conti/Magistrate Judge Maureen P. Kelly

Re: ECF No. 29

ORDER

In early 2017, Davon Renee Hayes ("Petitioner") filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"). ECF No. 4.¹ In the Petition, he sought to attack his convictions for criminal homicide, robbery and conspiracy, in connection with the murder of a store clerk.

Presently before the Court is a counseled Motion for Reconsideration of Order Denying Petitioner's Motion to Reopen Federal Habeas Corpus Proceedings (the "Motion for Reconsideration"), ECF No. 29, relative to this Court's Order dated December 10, 2019, ECF No. 24, denying Petitioner's Motion to Reopen Federal Habeas Corpus Proceedings, ECF No. 18. Respondents have filed a Response to Petitioner's Motion for Reconsideration of Order Denying Motion to Reopen Federal Habeas Corpus Proceedings ("Response in Opposition"). ECF No. 31. Petitioner filed his Reply to Respondents' Response to Petitioner's Motion forReconsideration of Order Denying Motion to Reopen Federal Habeas Corpus Proceedings ("Petitioner's Reply"). ECF No. 33. The Motion for Reconsideration is now ripe for consideration.

I. RELEVANT PROCEDURAL HISTORY

In order to address the pending Motion for Reconsideration, it is necessary, at the outset, to briefly review the relevant procedural history of this case.

At Petitioner's request, ECF No. 5, on March 17, 2017, this Court stayed this case in order for Petitioner to exhaust his state court remedies. ECF No. 7. While this case was stayed, the Court received an order from the United States Court of Appeals for the Third Circuit granting Petitioner authorization to file a second or successive Section 2254 habeas petition. ECF No. 8. After receipt of the Third Circuit order, this Court directed Petitioner to file with the Court a motion to either lift the stay if he had exhausted his state court remedies or a motion to continue the stay, if he had not. ECF No. 10. On April 3, 2018, Petitioner then filed a Motion to Continue the Stay and Abey so that he could exhaust his state court remedies. ECF No. 11. On April 17, 2018, the Court granted Petitioner's Motion to Continue the Stay and sua sponte appointed the Federal Public Defender as counsel for Petitioner in this federal habeas proceeding. ECF No. 12. The Court also directed that the parties were to notify the Court no later than 45 days after Petitioner exhausted his state court remedies. Id.

On November 5, 2019, Petitioner, through counsel, filed a Motion to Reopen Federal Habeas Corpus Proceedings ("Motion to Reopen"), requesting that the stay be lifted and the habeas petition be reopened even though there was a pending Post Conviction Relief Act ("PCRA") Petition in the Court of Common Pleas of Allegheny County. ECF No. 18. Although not clearly stated, it appeared that Petitioner asserted in the Motion to Reopen that exhaustionshould be excused. Id. ¶ 9 ("Three years have passed since Mr. Hayes began litigating these claims in state court and he remains at the starting gate. At this juncture, it is time to reopen the federal proceedings rather than await further processing of his claims by the state court, where his most recent filing has been left to languish.").

Respondents filed the Commonwealth's Response to Petitioner's Motion to Reopen Federal Habeas Corpus Proceedings (the "Response in Opposition"), wherein they asserted that exhaustion should not be excused because Petitioner had failed to establish inordinate delay as was his burden in order to excuse exhaustion. ECF No. 21. Further, Respondents reported that on November 9, 2019, Judge John Zottola of the Court of Common Pleas of Allegheny County ordered that an Amended PCRA Petition or no-merit letter be filed by January 6, 2020. ECF No. 21-1 at 46.

Petitioner filed a Reply to Respondents' Response in Opposition. ECF No. 23. In the Reply, Petitioner argued that Respondents misunderstood his Motion to Reopen and that he was not claiming exhaustion should be excused due to inordinate delay. Petitioner asserted that "Mr. Hayes has not argued that waiting for exhaustion is not required because of inordinate delay. While the Commonwealth's understanding of Mr. Hayes' position is inaccurate, it appears the Commonwealth rushed into the Court of Common Pleas to jump-start the proceedings in an effort to defeat a claim of inordinate delay and not to assist Mr. Hayes in pursuing his rights." Id. at 4 n.2.²

On December 10, 2019, this Court issued an Order denying Petitioner's Motion to Reopen on two grounds. ECF No. 24. First, we found that Petitioner failed to carry his burden to show exhaustion should be excused due to inordinate delay or indeed, for any other reason. Id. at 7-8. Second, we found that Petitioner failed to carry his burden to show that he has already exhausted his state court remedies. Id. at 8-10.

Petitioner now seeks reconsideration of the Order dated December 10, 2019 denying Petitioner's Motion to Reopen. ECF No. 29. Respondents oppose the Motion for Reconsideration. ECF No. 31.

II. PETITIONER'S MOTION FOR RECONSIDERATION

In the Motion for Reconsideration, Petitioner attacks this Court's conclusion that he has not carried his burden to show that he has exhausted his state court remedies. ECF No. 29. Petitioner asserts that "[b]y Order dated December 10, 2019, this Court denied Mr. Hayes' motion to reopen the federal habeas corpus proceedings, finding that Mr. Hayes' state remedies had not been exhausted, and that exhaustion should not be excused." Id. at 1. Petitioner argues that "the finding that Mr. Hayes has not exhausted his state court remedies is clearly erroneous..." Id. at 2. Petitioner asserts that because he "fairly presented the federal constitutional claims in his federal petition to the Court of Common Pleas of Allegheny County, the Pennsylvania Superior Court and the Supreme Court of Pennsylvania during his third PCRA proceedings" that exhaustion of the state court remedies has been satisfied. Id. Petitioner further argues that he "fairly presented" to the state courts both the facts underlying the affidavit signed by Darnell Clark on May 24, 2017 (the "Clark Affidavit"), ECF No. 9-1 at 45 - 46, (i.e., that Darnell Clark made a statement to the police indicating that Petitioner was not one of the three men he had seen hanging out near the store where his uncle who was killed had worked) and thelegal claim based thereon, i.e., the Commonwealth violated a duty to disclose in pre-trial discovery Darnell Clark's alleged statement to the police, which we shall refer to as the "Brady claim." ECF No. 29 at 2-3; 6.

III. RESPONDENTS' RESPONSE IN OPPOSITION

Respondents oppose the Motion for Reconsideration. ECF No. 31. Respondents argue that Petitioner has a currently available state court remedy by which to raise his Brady claim based on the Clark Affidavit and he should be required to pursue his current PCRA petition. Respondents take the position that Petitioner's statement that he filed the PCRA petition within 60 days of the denial of his petition for allowance of appeal from the November 2017 ruling, if properly established, preserves the opportunity to attempt to assert any PCRA timeliness exception that Petitioner may assert based on Darnell Clark's affidavit, which was not submitted to the PCRA court in Petitioner's Third PCRA petition. As such, Respondents contend that the state court should be afforded the first opportunity to determine whether or not there is a valid assertion of a timeliness exception, and whether Petitioner is eligible for PCRA relief. Id. at 6.

IV. PETITIONER'S REPLY TO RESPONDENTS' RESPONSE IN OPPOSITION

In his Reply, Petitioner argues that the existence of the currently pending PCRA petition in state court is irrelevant to the exhaustion analysis because he has already fairly presented his Brady claim in his Third PCRA proceedings and therefore, exhausted his state court remedies. ECF No. 33. Petitioner further argues that Respondents fail to acknowledge that Petitioner has already exhausted his Brady claim in the Third PCRA proceedings. Id. at 3. Petitioner asserts that "respondents insist that 'the state court should be afforded the first opportunity to determine whether or not there is a valid assertion of a timeliness exception, and whether Petitioner is eligible for PCRA relief,' while ignoring that the state courts have already been afforded thatvery opportunity when they adjudicated Mr. Hayes' third PCRA petition. See Doc. No. 29 at 2-5. Respondents' have not even attempted to explain why this Court should find the claims now raised in Mr. Hayes' pending PCRA petition were not fairly presented in his third PCRA petition." ECF No. 33 at 3.

V. STANDARD OF REVIEW

Petitioner asserts the standard for granting a motion for reconsideration is whether there is a need to correct clear error [of law] or prevent a manifest injustice. ECF No. 29 at 2 (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194 (3d Cir. 1995)).

This Court finds that the proper standard and scope of review for a motion for reconsideration of our interlocutory order denying the Motion to Reopen and lift the stay is the standard stated by the Court in Nyamekye v. Mitsubishi Electric Power Products, Inc., CV 17-852, 2018 WL 3933504, at *3 (W.D. Pa. Aug. 16, 2018) wherein it held:

Reconsideration of interlocutory orders, however, "may be had even if the movant cannot show an intervening change in controlling law, the availability of new evidence that was not available when the court issued the underlying order, or the 'need to correct a clear error of law or fact or to prevent manifest injustice.'" Qazizade

...