United States District Court, D. New Jersey
Tysheim Murphy, # 668462/719455C East Jersey State Prison
Petitioner, Pro se
J. Santoliquido, Esq. Office of the Prosecutor Counsel for
L. HILLMAN, United States District Judge
matter is presently before the Court upon a Motion to Stay by
Petitioner Tysheim Murphy. ECF No. 8. Respondent opposes the
motion. ECF No. 13. The Court has read the submissions of the
parties and considers this matter without oral argument
pursuant to Federal Rule of Civil Procedure 78. For the
reasons discussed below, Petitioner's Motion will be
about April 28, 2017, Petitioner, a prisoner confined at the
East Jersey State Prison in Rahway, New Jersey, filed this
Petition for Writ of Habeas Corpus under 28 U.S.C. §
2254, challenging his 2010 New Jersey state court conviction.
ECF No. 1. Pursuant to the Court's order, Petitioner
submitted a Second Amended Petition on July 12, 2017. ECF No.
7. On or about November 18, 2015, Petitioner filed a Motion
for a Stay of the habeas proceeding so that he could
“exhaust all my issues before raising them on Habeas
Corpus.” ECF No. 8, at 4. Specifically, Petitioner
asserts that he has not exhausted his claim that his PCR
counsel was ineffective. Id. at 7-8.
filed an opposition to the Motion to Stay. ECF No. 13.
Specifically, Respondent argues that Petitioner has already
“challenged his underlying convictions once on direct
appeal and twice on collateral review in state court.”
Id. at 1. In fact, Respondent argues that
Petitioner's second petition for post-conviction relief
was “Dismissed with prejudice for failure to
demonstrate the requisite good cause for second or subsequent
PCR petitions.” Id. Finally, Respondent argues
that any successive PCR petition brought to raise ineffective
assistance of Petitioner's PCR counsel would also be
dismissed because it is untimely under New Jersey Court Rule
filed a reply in support of his Motion to Stay. ECF No. 14.
In his reply, Petitioner asserts that his second PCR petition
was dismissed not on the merits but because the way it was
drafted. Id. at 1. Specifically, Petitioner asserts
that he failed to properly identify the claims regarding his
PCR counsel. Id.
petitioner seeking federal habeas review must exhaust state
court remedies for all grounds for relief asserted in a
habeas petition. 28 U.S.C. § 2254(b)(1)(A); Crews v.
Horn, 360 F.3d 146, 151 (3d Cir. 2004). It is therefore
proper and routine for district courts to dismiss habeas
petitions containing both unexhausted and exhausted claims
(so-called “mixed petitions”) so as to allow the
state courts the first opportunity to address the
petitioner's constitutional claims. Rose v.
Lundy, 455 U.S. 509, 510 (1982).
this “total exhaustion” rule, the Court of
Appeals for the Third Circuit has recognized that, in some
circumstances, dismissing a “mixed petition” may
time-bar a petitioner from federal court under the one-year
statute of limitations for § 2254 claims imposed by the
Antiterrorism Effective Death Penalty Act of 1996
(“AEDPA”). See Crews, 360 F.3d at 151
(“AEDPA's limitations period may act to deprive a
petitioner of a federal forum if dismissal of the habeas
petition is required”) (citing Zarvela v.
Artuz, 254 F.3d 374, 379 (2d Cir. 2001)). Accordingly,
the Third Circuit has held that “[s]taying 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 petition.”
See Crews, 360 F.3d at 151.
Supreme Court likewise has acknowledged there could be
circumstances where dismissal of a mixed petition for
exhaustion would result in the one-year habeas statute of
limitations expiring before the petitioner was able to return
to federal court. See Rhines v. Weber, 544 U.S. 269,
272-73 (2005). The Court held that, in limited circumstances,
district courts have discretion to hold a habeas proceeding
in stay and abeyance while the petitioner exhausts his
unexhausted claims in state court. Id. at 277. A
stay and abeyance is available only when the petitioner had
good cause for failing to exhaust his claims and only if the
claims have potential merit. Id. at 277-78.
“[f]ew courts have provided guidance as to what
constitutes ‘good cause' for failing to exhaust a
claim in state court within the meaning of Rhines,
” the Third Circuit emphasizes “the need to be
mindful of Justice Stevens's concurrence in
Rhines, which cautions that . . . [the requirement]
is not intended to impose the sort of strict and inflexible
requirement that would ‘trap the unwary pro se
prisoner[.]'” Locust v. Ricci, No.