The opinion of the court was delivered by: Wolfson, District Judge
Petitioner Darrell Foye, a convicted state prisoner, currently confined at the New Jersey State Prison in Trenton, New Jersey, has submitted an application seeking an extended stay of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was filed on December 15, 2004 (Docket Entry No. 1), and stayed by an Opinion and Order issued by this District Court on August 16, 2005 (Docket Entry Nos. 3 and 4). This motion is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. For the reasons stated below, petitioner's motion for an extended stay of his federal habeas petition will be denied.
On April 27, 2001, after a jury trial, Petitioner, Darrell Foye ("Foye"), was convicted in the Superior Court of New Jersey, pursuant to Monmouth County Indictment # 00-03-0433, on charges of murder, conspiracy, armed robbery, and a number of other offenses. (Petition ¶ 4). Foye was sentenced to an aggregate term of life imprisonment plus ten years, with a 35-year period of parole ineligibility. (Pet. ¶ 3). The Superior Court of New Jersey, Appellate Division affirmed Foye's conviction and sentence on June 11, 2003. (Id.). Foye states that the Supreme Court of New Jersey denied his petition for certification on December 11, 2003. (Pet. ¶ 9). Foye did not seek a writ of certiorari with the Supreme Court of the United States.
On or about December 15, 2004, Foye filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. With his petition, Foye also submitted a motion asking that his federal habeas petition be stayed while he sought state collateral review of his state court conviction.*fn1 In a declaration in support of his motion for a stay, Foye stated that his counsel was in the process of filing a petition for post-conviction relief ("PCR") in state court, but would not be able to do so before December 10, 2004. Foye asserted that a stay of his federal habeas petition was necessary so that he could preserve his exhausted claims while he pursued his unexhausted claims in state court. He further stated that at the completion of his state PCR proceedings, he would file his one all-inclusive habeas petition, which would then contain only exhausted claims for habeas relief.
In an Opinion and Order filed on August 16, 2005, the Honorable Stanley R. Chesler, U.S.D.J., granted Foye's request for a stay of his federal habeas proceeding pending exhaustion of petitioner's state court remedies, pursuant to Crews v. Horn, 360 F.3d 146 (3d Cir. 2004). The Order granting the stay further provided that Foye must return to federal court within 30 days after the denial of state post-conviction relief. (See Docket Entry Nos. 3 and 4).
On August 23, 2006, this Court issued a second Order administratively terminating Foye's habeas action pending the filing of a motion to re-open the matter as permitted in the August 16, 2005 Order.*fn2
On June 9, 2008, the Clerk of the Court received petitioner's motion seeking to extend the stay of his federal habeas action.*fn3 Foye states that his state PCR petition was denied on November 18, 2005, and he appealed that decision to the Superior Court of New Jersey, Appellate Division. The Appellate Division affirmed the trial court decision in an unpublished opinion dated February 19, 2008. Foye then filed a petition for certification before the Supreme Court of New Jersey, which was denied on May 6, 2008. (Pet. Motion, Docket Entry No. 7, ¶ 7).
In his motion for an extended stay, Foye seeks additional time to file a second state PCR petition to raise a claim of ineffective assistance of his state PCR counsel. (Id., ¶¶ 8-9).
A state prisoner applying for a writ of habeas corpus in federal court must first "exhaust the remedies available in the courts of the State," unless "there is an absence of available State corrective process or ... circumstances exist that render such process ineffective ... ."*fn4 28 U.S.C. § 2254(b)(1). See also Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001) (finding that "Supreme Court precedent and the AEDPA mandate that prior to determining the merits of [a] petition, [a court] must consider whether [petitioner] is required to present [his or her] unexhausted claims to the [state's] courts").*fn5
The exhaustion requirement is intended to allow state courts the first opportunity to pass upon federal constitutional claims, in furtherance of the policies of comity and federalism. Granberry v. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 516-18. Exhaustion also has the practical effect of permitting development of a complete factual record in state court, to aid the federal courts in their review. Rose, 455 U.S. at 519.
The exhaustion doctrine is a "total" exhaustion rule. That is, "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims [('mixed' petitions)]." Lundy, 455 U.S. at 522. At the time Rose v. Lundy was decided, there was no statute of limitations on the filing of federal habeas petitions. The enactment in 1996 of a one-year limitations period for § 2254 habeas petitions,*fn6 however, "'has altered the context in which the choice of mechanisms for handling mixed petitions is to be made.'" Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004) (quoting Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.), cert. denied, 534 U.S. 1015 (2001)). Because of the one-year limitations period, dismissal of a timely-filed mixed petition may forever bar a petitioner from returning to federal court. "Staying a habeas petition pending exhaustion of state remedies is a permissible and effective way to avoid barring from federal court a petitioner who timely files a mixed ...