Daniel Arthur Heleva v. Warden Mrs. M. Brooks

-1-
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-4118
_____________
DANIEL ARTHUR HELEVA,
Appellant
v.
WARDEN MRS. M. BROOKS; PA STATE ATTORNEY
GENERAL;
MONROE COUNTY DISTRICT ATTORNEY
___________
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(No. 07-cv-1398)
District Judge: Honorable Christopher C. Conner
___________
Argued March 12, 2009

-- 1 of 27 --

Honorable A. Wallace Tashima, Senior United States*
Circuit Judge for the United States Court of Appeals for the
Ninth Circuit, sitting by designation.
-2-
Before: FUENTES, CHAGARES, and TASHIMA, Circuit*
Judges
(Filed: September 14, 2009)
J. Nicholas Ranjan (Argued)
K&L Gates
535 Smithfield Street
Henry W. Oliver Building
Pittsburgh, PA 15222
Attorney for Appellant
James F. Marsh (Argued)
Mark S. Matthews
Office of District Attorney
7th & Monroe Streets
Monroe County Courthouse
Stroudsburg, PA 18360
Attorneys for Appellees
_____________
OPINION OF THE COURT
_____________

-- 2 of 27 --

The dissent contends that we are “the first [court] to1
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 1. 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
-3-
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
(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 (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.1

-- 3 of 27 --

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.
-4-
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 Fannick, appealed the conviction
to the Superior Court of Pennsylvania, but failed to file a brief
supporting the appeal. The Superior 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

-- 4 of 27 --

-5-
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 Post-Conviction 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

-- 5 of 27 --

-6-
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 (1982).
In Rhines v. Weber, 544 U.S. 269 (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

-- 6 of 27 --

-7-
“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.
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

-- 7 of 27 --

-8-
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. 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.
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.

-- 8 of 27 --

-9-
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 (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. The Court reasoned that
“[a] prisoner seeking state postconviction 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,

-- 9 of 27 --

It is worth noting that the justices dissenting in Pace2
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 (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).
-10-
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.2
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

-- 10 of 27 --

-11-
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

-- 11 of 27 --

To be clear, though we hold that good cause as3
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.
-12-
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. 5443
U.S. at 278. 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

-- 12 of 27 --

Heleva suggests that this calculation may not be correct4
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
Superior 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.
-13-
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 circumstance4
in making its good cause determination.

-- 13 of 27 --

-14-
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.

-- 14 of 27 --

-15-
CHAGARES, Circuit Judge, dissenting.
The majority opinion makes our Court the first to prohibit
a district court from dismissing a petition for writ of habeas
corpus immediately upon determining that the petitioner
exhausted none – not a single one – of his federal claims in state
court. I believe that this holding constitutes an unwarranted
extension of Supreme Court precedent. In particular, I believe
that the majority improperly intuits a sub silentio overruling of
Rose v. Lundy, 455 U.S. 509 (1982) from dicta in Pace v.
DiGuglielmo, 544 U.S. 408 (2005). Therefore, I respectfully
dissent.
I.
A.
Until recently, it had been the rule that a district court
must dismiss a habeas petition containing at least one
unexhausted claim, that is, one claim that has not been subjected
to one full round of state-court review. See Lundy, 455 U.S. at
515, 522; Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004)
(“Under the doctrine of . . . Rose v. Lundy . . ., federal courts
must dismiss without prejudice habeas petitions that contain any
unexhausted claims.”). This rule was established at a time when

-- 15 of 27 --

-16-
there was no statute of limitations governing habeas petitions.
See Rhines v. Weber, 544 U.S. 269, 274 (2005). The Lundy
Court, in crafting this rule, relied at least partly upon the
assumption that such a rule would not greatly prejudice a
petitioner who came to federal court with some exhausted
claims and some unexhausted claims – a so-called “mixed”
petition. See id. at 273-74. A petitioner who filed a mixed
petition could, with relative ease, return to state court as needed
until he completed the exhaustion process and then go back to
federal court to file one wholly exhausted petition. See id. at
274 (citing Slack v. McDaniel, 529 U.S. 473, 486 (2000)).
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) made this assumption less plausible. It
codified the Lundy exhaustion rule, see Rhines, 544 U.S. at 274
(“AEDPA preserved Lundy’s total exhaustion requirement . . .
.”), and it imposed a one-year limitations period that runs from
the date the state conviction becomes final. 28 U.S.C. §
2244(d). This period is tolled during the pendency of any
properly filed petition for state post-conviction review, but it is
not tolled while the federal petition pends in district court. §
2244(d)(2). The Rhines Court explained why AEDPA’s statute
of limitations may undermine the assumption underlying the
Lundy rule. See 544 U.S. at 275. Suppose that a prisoner files
a timely federal petition. Suppose further that, after the AEDPA
limitations period has expired, the district court rules that some
of the claims made in that petition have not been exhausted.
The Lundy rule would require the district court to dismiss the
petition. But, because the statute of limitations was not tolled
while the district court was reviewing the petition, the petitioner

-- 16 of 27 --

-17-
cannot, after returning to state court to exhaust those claims, file
a single, completely exhausted, federal petition. See id. Those
claims would be time-barred. See id.
The Rhines Court crafted a narrow exception to Lundy
with respect to mixed petitions. See id. at 277. The Court held,
contrary to Lundy, that a district court need not dismiss a
petition it determines is mixed. See id. Rather, it may, if the
petitioner shows, inter alia, good cause for failing to exhaust
completely, stay disposition of the exhausted claims and hold
the petition in abeyance while the petitioner completes the
exhaustion process. See id. at 277-78. Once the petitioner fully
exhausts his claims, the district court may then lift the stay and
review the petition. See id.
B.
Pursuant to 28 U.S.C. § 2244(d)(2), a “properly filed”
state post-conviction review petition tolls the one-year AEDPA
statute of limitations governing habeas petitions. In Pace, the
Court was “require[d] . . . to decide whether a state
postconviction petition rejected by the state court as untimely
nonetheless is ‘properly filed’ within the meaning of §
2244(d)(2).” 544 U.S. at 410. The Court held that such a state
filing is not “properly filed” and therefore does not toll the one-
year limitations period governing federal petitions. See id.

-- 17 of 27 --

-18-
The Court explained that it reached this result by
interpreting the statutory phrase “properly filed” according to its
“common understanding” and in a way that would not turn the
tolling provision “into a de facto extension mechanism.” Id. at
413. The Court then addressed and rejected two of the
petitioner’s counterarguments. See id. at 414-17.
The Court then paused to acknowledge that its holding
may present difficulties for certain petitioners. In particular, “a
petitioner trying in good faith to exhaust state remedies may
litigate in state court for years only to find out at the end that he
was never ‘properly filed,’ and thus that his federal habeas
petition is time barred.” Id. at 416 (quotation marks omitted)
(citation to petitioner’s brief omitted). The Court offered a
suggestion as to how such a petitioner might be able to solve
this problem:
A prisoner seeking state postconviction relief might
avoid this predicament, however, 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. See Rhines v. Weber, ante, at
278. A petitioner’s reasonable confusion about whether
a state filing would be timely will ordinarily constitute
“good cause” for him to file in federal court. Ibid. (“[I]f
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 tactics,” then the district court

-- 18 of 27 --

I agree with my learned colleagues’ rejection of Heleva’s1
argument, see Heleva Br. 12-14, that the Rhines Court itself overruled
Lundy with respect to wholly unexhausted petitions. The Rhines
Court determined that “[a]ny solution to th[e] problem [created by the
interaction of Lundy and AEDPA’s statute of limitations] must . . . be
compatible with AEDPA’s purposes,” namely, to “reduce delays” in
the implementation of criminal sentences and to encourage prisoners
to seek relief in state court before filing a federal petition. See 544
U.S. at 276-77 (citation omitted). Heleva argues that reading Rhines
to allow district courts to stay and hold in abeyance wholly
unexhausted petitions would do no more violence to these goals than
would allowing courts to stay and hold in abeyance mixed petitions
-19-
likely “should stay, rather than dismiss, the mixed
petition.”).
Id. at 416-17 (alteration in original).
II.
The District Court denied Heleva’s motion for stay
because it held that stay-and-abeyance applies only to mixed
petitions, and not to Heleva’s petition, which contained no
exhausted claims. The majority holds that this was error,
because even though the Court in Rhines did not overrule Lundy
with respect to wholly unexhausted petitions, the Court in Pace
did so through the solitary snippet quoted above. For the
reasons that follow, I cannot agree.1

-- 19 of 27 --

only. Heleva Br. 13. This is plainly incorrect. Rhines weakened the
prisoner’s incentive to exhaust all claims before filing a federal
petition, but preserved his incentive to exhaust at least some.
Reading Rhines to encompass wholly unexhausted petitions,
however, would weaken both of those incentives, not just the former.
But there are more reasons why Rhines itself does not
encompass wholly unexhausted petitions. For starters, the Rhines
Court expressly limited the breadth of its decision by stating, very
precisely, the issue it addressed:
We confront here the problem of a “mixed” petition for
habeas corpus relief in which a state prisoner presents a
federal court with a single petition containing some claims
that have been exhausted in the state courts and some that
have not. More precisely, we consider whether a federal
district court has discretion to stay the mixed petition to allow
the petitioner to present his unexhausted claims to the state
court in the first instance, and then to return to federal court
for review of his perfected petition.
544 U.S. at 271-72. In addition, the Court underscored the
narrowness of its holding by repeatedly acknowledging that it was
only considering the mixed-petition context. See id. at 275, 277-78.
Finally, in a subsequent case, the Court discussed Rhines and
characterized it as a case about mixed petitions: “as we recently held,
a court presented with a mixed habeas petition ‘should allow the
petitioner to delete the unexhausted claims and to proceed with the
exhausted claims . . . .’ Rhines, supra, at 278.” Jones v. Bock, 549
U.S. 199, 222 (2007).
-20-

-- 20 of 27 --

-21-
A.
The analysis must begin with the presumption that the
Supreme Court does not overrule prior precedent sub silentio.
See, e.g., Shalala v. Ill. Council on Long Term Care, Inc., 529
U.S. 1, 18 (2000) (“The Court does not normally overturn, or so
dramatically limit, earlier authority sub silentio.”); Am.
Trucking Ass’ns v. Smith, 496 U.S. 167, 190 (1990) (rejecting
argument that, if accepted, would constitute “sub silentio
overrul[ing]” of prior Court precedent). This presumption
operates even when other decisions have undermined the
rationale behind the precedent at issue. See Agostini v. Felton,
521 U.S. 203, 237 (1997).
Further, the Supreme Court “does not decide important
questions of law by cursory dicta inserted in unrelated cases.”
Permian Basin Area Rate Cases, 390 U.S. 747, 775 (1968).
Accordingly, it is clear that “dicta does not and cannot overrule
established Supreme Court precedent.” Waine v. Sacchet, 356
F.3d 510, 517 (4th Cir. 2004); see S.F. NAACP v. S.F. Unified
Sch. Dist., 284 F.3d 1163, 1167 (9th Cir. 2002) (holding that the
language in one Supreme Court decision “is dicta and should not
be taken to overrule the express holding of [another Supreme
Court decision]”).
If the Pace Court did indeed overrule Lundy, it did so sub
silentio and in dicta. The overruling would certainly be sub
silentio. After all, the Court in Pace never expressly stated that

-- 21 of 27 --

-22-
it was eroding Lundy in any way. And the overruling would
come via dicta. Excising Pace’s passage about protective
petitions from the opinion does not call into question the Court’s
holding – that a filing untimely under state law is not “properly
filed” within the meaning of § 2244(d)(2) – which the Court
expressly indicated it reached by considering the plain meaning
of the tolling provision and the danger of that provision
functioning as a “de facto extension mechanism.” See 544 U.S.
at 413, 417. The Court’s advice to a petitioner on how to
mitigate potential “[un]fairness” was not necessary to its
ultimate resolution of the issue presented. See Drelles v. Metro.
Life Ins. Co., 357 F.3d 344, 347-48 (3d Cir. 2003) (“As defined
by this Court, dictum is ‘a statement in a judicial opinion that
could have been deleted without seriously impairing the
analytical foundations of the holding.’” (quoting McDonald v.
Master Fin., Inc., 205 F.3d 606, 612 (3d Cir. 2000))); see also
Carter v. Friel, 415 F. Supp. 2d 1314, 1317 (D. Utah 2006)
(noting language from Pace quoted by majority in the present
case is dicta); Harris v. Beard, 393 F. Supp. 2d 335, 339 (E.D.
Pa. 2005) (same).
The majority therefore must overcome two weighty
presumptions – one against Supreme Court sub silentio
overruling, and the other against Supreme Court dicta-based
overruling – in holding that the Pace Court rendered Lundy
inapplicable to wholly unexhausted petitions. See In re Sealed
Case No. 98-3077, 151 F.3d 1059, 1064 (D.C. Cir. 1998) (per
curiam) (noting that “it is rather implausible that the Supreme
Court, in dicta . . . meant to overrule sub silentio the holdings in
[two cases]”). I believe that the majority has failed to do this.

-- 22 of 27 --

-23-
B.
The language of Pace does not suggest (much less
compel) Lundy’s overruling. The Court’s citations to Rhines do
not indicate that the stay-and-abeyance procedure announced in
Rhines applies to any petition other than a mixed petition. In the
passage at issue, the Court in Pace suggested a way to mitigate
potential unfairness by noting that a prisoner in the
“predicament” the Court described may seek a stay to the extent
Rhines permits. To that end, the passage’s first citation to
Rhines does not expand the scope of stay-and-abeyance, it
merely functions as a useful shorthand indicating when stay-
and-abeyance is available. The passage’s second citation to
Rhines supports this reading. In the parenthetical attached to
that citation, the Pace Court quoted the Rhines Court’s reference
to a “mixed petition.” 544 U.S. at 416-17. Had the Pace Court
wanted to demonstrate that stay-and-abeyance applies broadly,
it could have excised the word “mixed” from that parenthetical,
or it could have paraphrased (rather than quoted) the Rhines
opinion. Yet it did neither.
In addition, reading the Court in Pace to have overruled
Lundy sub silentio and in dicta is especially problematic because
to overrule Lundy is not simply to tinker with a minor, hyper-
technical facet of habeas corpus law. To overrule Lundy is to
overhaul the Court’s exhaustion jurisprudence. Specifically, the
majority reads Pace to provide that a district court no longer
must dismiss a petition filed by a state prisoner who failed to
present even one of his claims for relief to the state courts. I do

-- 23 of 27 --

It is also worth noting that this Court, in at least one post-2
Pace decision, has implied that Lundy is still good law with respect
to wholly unexhausted petitions. For example, in Goldblum v. Klem,
we noted 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.’” 510 F.3d 204,
224 (3d Cir. 2007) (quoting Benchoff v. Colleran, 404 F.3d 812, 820
(3d Cir. 2005)). This suggests that Lundy requires that a petition filed
by a prisoner who does neither of these things – that is, who fails to
exhaust any claim in the petition – must be dismissed.
-24-
not. Had the Supreme Court actually disturbed such a venerable
part of habeas corpus, see Ex parte Royall, 117 U.S. 241, 251
(1886) – a part of habeas corpus that derives from the
fundamental notion of comity between state and federal courts,
see O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999) (citing,
inter alia, Lundy, 455 U.S. at 515-16) – it would have done so
expressly.
Put simply, the Court in Pace gave no indication that it
overruled Lundy with respect to wholly unexhausted petitions,
much less enough of an indication to overcome the
presumptions against sub silentio and dicta-based Supreme
Court overruling. Therefore, I cannot agree with the majority
that the Pace Court remade exhaustion law surreptitiously, in a
paragraph peripheral to its holding.2
* * * * *

-- 24 of 27 --

Accordingly, the only court of appeals to have confronted the3
issue in a precedential opinion disagreed with today’s majority.
Rasberry v. Garcia, 448 F.3d 1150, 1152, 1154 (9th Cir. 2006)
(“Once a district court determines that a habeas petition contains only
unexhausted claims . . . . it may simply dismiss the habeas petition for
failure to exhaust.”). Rasberry, a state prisoner, filed a wholly
unexhausted habeas petition. The record indicated, however, that he
easily could have filed a mixed petition, because he had available to
him additional claims which would have been deemed exhausted.
See id. at 1153. The district court dismissed the petition for failure
to exhaust. See id. at 1152. Rasberry returned to state court and
exhausted all the claims made in the federal petition that the district
court dismissed. Id. He then filed a second petition, styled as an
“amended” petition, which the district court dismissed as untimely
under the AEDPA statute of limitations. Id. at 1152-53. Rasberry
appealed that dismissal.
On appeal, Rasberry argued that the district court should not
have dismissed his second petition as untimely because the AEDPA
statute of limitations was equitably tolled during the pendency of his
first petition. See id. at 1153. Rasberry argued that an “extraordinary
circumstance” prevented him from filing his second petition on time.
Id. This “extraordinary circumstance,” Rasberry asserted, was the
district court’s failure to alert him to the exhausted claims he could
have included, to instruct him to amend his petition to include those
claims, and then to advise him to request that the district court stay
disposition of the exhausted claims and hold the petition in abeyance
while he returned to state court to complete the exhaustion process.
-25-
I believe that the Lundy Court’s command to dismiss
wholly unexhausted petitions remains good law. Therefore, I
believe that courts must continue to follow that command.3

-- 25 of 27 --

See id. The court of appeals affirmed the dismissal and rejected
Rasberry’s equitable tolling argument. The court held that what
Rasberry characterized as an “extraordinary circumstance” was not
one, because the district court had no obligation to provide, sua
sponte, the guidance he desired. Id. at 1153-54.
The court added that the district court had no obligation to
hold Rasberry’s first, wholly unexhausted, petition in abeyance. Id.
at 1154. Indeed, the court noted that the district court lacked the
discretion to do so because, as a threshold matter, the stay-and-
abeyance procedure announced in Rhines applies only to mixed
petitions. Id. The district court had no power to employ this
procedure even though the record indicated that Rasberry could have
included some exhausted claims in his first petition, but did not. Id.
Heleva, by contrast, never contends that he could have included any
such claims. In other words, nothing about Heleva’s petition was
exhausted – not the claims he actually included, and not the claims he
could have included. Under Rasberry, then, Heleva’s argument that
the District Court had the discretion to hold his petition in abeyance
would fail a fortiori.
The majority acknowledges Rasberry, but unduly minimizes
its import. First, the majority asserts that the Rasberry court’s
conclusion that the district court lacked the discretion to hold
Rasberry’s wholly unexhausted petition in abeyance has no relevance
here, because Rasberry, unlike Heleva, never argued that he met the
Rhines “good cause” requirement. I disagree. According to the
Rasberry court, the district court lacked the discretion to hold
Rasberry’s wholly unexhausted petition in abeyance not because
Rasberry failed to assert “good cause,” but because, as a categorical
matter, stay-and-abeyance applies only to mixed petitions. See id. at
1154. The Rasberry court’s conclusion, then, directly supports the
-26-

-- 26 of 27 --

District Court’s dismissal of Heleva’s wholly unexhausted petition.
Second, the majority appears to suggest that whatever the
Rasberry court decided should be viewed with some skepticism
because the court failed to cite Pace in its stay-and-abeyance
discussion. But what reason did the court have to cite Pace in
discussing the availability of stay-and-abeyance? As set forth above,
the Pace Court did not make the Rhines stay-and-abeyance procedure
more widely available, because the Pace Court did not alter the Lundy
dismissal rule. The Rasberry court evidently recognized this and felt
no need to reference, in its discussion of stay-and-abeyance, a case
having no bearing upon the circumstances under which a district court
may use that procedure.
-27-
III.
For the above reasons, I respectfully dissent, and would
affirm the judgment of the District Court.

-- 27 of 27 --