Ricky Mallory v. Tabb Bickell, Superintendent, Sci Huntingdon

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2124
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RICKY MALLORY,
Appellant
v.
TABB BICKELL, SUPERINTENDENT, SCI HUNTINGDON;
DISTRICT ATTORNEY PHILADELPHIA;
ATTORNEY GENERAL PENNSYLVANIA
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 11-cv-05202)
District Judge: Honorable Eduardo C. Robreno
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Submitted Under Third Circuit LAR 34.1(a)
April 7, 2014
Before: HARDIMAN, SLOVITER and BARRY, Circuit Judges.
(Filed: April 14, 2014)
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OPINION
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HARDIMAN, Circuit Judge.
Ricky Mallory appeals the District Court’s order dismissing his petition for writ of
habeas corpus under 28 U.S.C. § 2254 and denying his motion to stay federal

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proceedings. Mallory’s counsel has moved to withdraw pursuant to Anders v. California,
386 U.S. 738 (1967).1 For the reasons that follow, we will grant counsel’s motion and
affirm the judgment of the District Court.
I
As the lower courts have aptly noted, “[t]his case has a long and tortured
procedural history.” In 1998, Mallory was tried in Pennsylvania state court for attempted
murder and related charges. Prior to trial, Mallory signed, with the aid of counsel, a
standard jury trial waiver form and completed a lengthy written waiver colloquy. The trial
court did not conduct an oral colloquy, and Mallory’s counsel never requested one. The
court convicted Mallory of the charges and sentenced him to 35 to 70 years’
imprisonment.2 Mallory unsuccessfully appealed his conviction to the Pennsylvania
Superior Court, Commonwealth v. Mallory, 761 A.2d 1236 (Pa. Super. Ct. 2000), and the
Pennsylvania Supreme Court, Commonwealth v. Mallory, 766 A.2d 1245 (Pa. 2000).
On December 11, 2001, Mallory sought collateral relief in the Philadelphia County
Court of Common Pleas under the Pennsylvania Post-Conviction Relief Act (PCRA), 42
1 While court-appointed habeas counsel is not required to comply with Anders, see
Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987), we have held that “[b]ecause Anders
procedures afford heightened protections . . . it is not erroneous to apply them in the habeas
context.” Simon v. Gov’t of the V.I., 679 F.3d 109, 115 (3d Cir. 2012). Accordingly, and because
no party has raised any issue as to the applicability of Anders, we analyze counsel’s request to
withdraw under the Anders framework.
2 Mallory was initially sentenced to 45 to 90 years’ incarceration. He then filed a
motion for reconsideration, and the court reduced his sentence to 35 to 70 years’
incarceration.

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Pa. Cons. Stat. §§ 9541–51, alleging, inter alia, that trial counsel was ineffective for
failing to ensure an oral waiver colloquy. The PCRA trial court granted Mallory a new
trial on the grounds that his lawyer’s failure to ensure an oral jury waiver colloquy
constituted ineffective assistance of counsel. The PCRA trial court found his other claims
moot.
The Commonwealth appealed. In November 2005, the Pennsylvania Superior
Court vacated the order granting a retrial and remanded to the PCRA trial court to reach
Mallory’s outstanding claims. On appeal, the Pennsylvania Supreme Court reversed the
Superior Court, holding that the court should have analyzed for harmless error, and
remanded to the PCRA trial court to address the question of whether Mallory’s trial
counsel provided ineffective assistance. Commonwealth v. Mallory, 941 A.2d 686 (Pa.
2008). The Commonwealth petitioned the Supreme Court of the United States for writ of
certiorari, but was denied. Pennsylvania v. Mallory, 555 U.S. 884 (2008).
On remand, the PCRA trial court again granted Mallory relief on the jury trial
waiver issue and ordered a retrial. Once again, the Commonwealth appealed and the
Pennsylvania Superior Court vacated the order for a retrial, holding that the trial court’s
finding of ineffective assistance of counsel was in error. Commonwealth v. Mallory, 6
A.3d 551 (Pa. Super. Ct. 2010). The Pennsylvania Supreme Court denied Mallory’s
petition for allowance of appeal. Commonwealth v. Mallory, 21 A.3d 1191 (Pa. 2011).
The case then proceeded before the PCRA trial court, as Mallory’s outstanding

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claims were ripe for review. Mallory filed a motion requesting leave to amend his petition
to include a challenge to his sentence. In January 2012, the PCRA trial court dismissed
the motion because the request to amend the petition was untimely. Mallory appealed, and
the Pennsylvania Superior Court vacated the PCRA trial court’s dismissal, finding that
Mallory’s amended petition was not untimely, and remanded all of Mallory’s remaining
claims to the PCRA trial court, except for his claims challenging the legality of his
sentence, which it dismissed on the merits.
In August 2013, Mallory filed, with the assistance of counsel, an application for
reconsideration en banc in the Superior Court, seeking a rehearing of his claims relating
to the legality of his sentence. The Pennsylvania Superior Court denied this application on
September 25, 2013 and remanded for further proceedings. Mallory appealed to the
Pennsylvania Supreme Court, where the matter is still pending.
Meanwhile, in August 2011, Mallory—whose remaining PCRA claims were still
pending in the PCRA trial court—filed a petition for writ of habeas corpus under 28
U.S.C. § 2254 in the United States District Court for the Eastern District of Pennsylvania.
In addition, Mallory filed a motion requesting a stay of his federal habeas action pending
the decision of the Pennsylvania courts. In February 2012, Magistrate Judge Henry Perkin
recommended the denial of Mallory’s request to stay proceedings and the dismissal,
without prejudice, of Mallory’s habeas petition for failure to exhaust state remedies.
Magistrate Judge Perkin found that while Mallory’s one-year federal habeas limitation

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period began to run on March 12, 2001 (the date of final review in Pennsylvania courts),
the limitations period was tolled because he had filed his original state PCRA petition on
December 11, 2001, stopping the clock 274 days into the year-long period. Id. This left
Mallory with 91 days to file his habeas petition once his ongoing PCRA proceedings
become final and his state remedies are exhausted.
In March 2012, the District Court adopted the Magistrate Judge’s
recommendation, dismissing Mallory’s petition without prejudice for failure to exhaust
and denying his motion to stay federal proceedings. In April 2012, Mallory appealed the
District Court’s ruling. One year later, we granted a certificate of appealability on the
issue of whether the District Court abused its discretion in denying the stay and
dismissing the habeas petition without prejudice for failure to exhaust. We appointed a
Federal Public Defender to represent Mallory on appeal. His counsel then moved to
withdraw pursuant to Anders.
II3
When a motion is filed pursuant to Anders, we determine whether: (1) counsel
adequately fulfilled the Anders requirement; and (2) an independent review of the record
presents any non-frivolous issues for appeal. United States v. Youla, 241 F.3d 296, 300
(3d Cir. 2001).
3 The District Court had jurisdiction under 28 U.S.C. § 2254(a). We have
jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the District Court’s order de
novo. Thomas v. Horn, 570 F.3d 105, 113 (3d Cir. 2009).

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To meet the first prong, appointed counsel must examine the record, conclude that
there are no non-frivolous issues for review, and request permission to withdraw. Counsel
must accompany a motion to withdraw with a “brief referring to anything in the record
that might arguably support the appeal.” Anders, 386 U.S. at 744. Mallory’s counsel
identified two potential grounds for appeal and demonstrated why they lack merit: (1)
Mallory’s habeas claim was properly dismissed without prejudice because he has not
exhausted state remedies; and (2) Mallory’s motion for a stay was properly denied
because the District Court’s dismissal of the habeas petition without prejudice does not
jeopardize the viability of Mallory’s collateral claim once state remedies are exhausted.
First, counsel rightly concluded that there is no viable ground for appeal of the
dismissal of his habeas petition. A habeas petition cannot proceed unless all meritorious
claims have been exhausted in state court. See 28 U.S.C. § 2254(b)(1). Mallory’s appeal
involves a “mixed petition,” consisting of both exhausted and unexhausted claims. Faced
with a mixed petition, a district court has four options: (1) dismiss the petition without
prejudice; (2) stay the proceedings and hold them in abeyance until the claims are
exhausted; (3) allow Mallory to delete his unexhausted claims; and (4) deny the petition if
it found all of Mallory’s unexhausted claims to be meritless under § 2254(b)(2) (allowing
the denial of a petition on the merits “notwithstanding the failure of the applicant to
exhaust”). Rhines v. Weber, 544 U.S. 269, 274–78 (2005).
Because the statute of limitations has not yet run on Mallory’s habeas claim, he

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suffers no adverse consequences from the District Court’s dismissal of his petition
without prejudice. His ability to re-file his petition is preserved for 91 days following the
completion of his PCRA proceedings. Therefore, the District Court properly denied his
petition without prejudice.
Second, there is no viable ground for appealing the denial of Mallory’s request for
a stay, which should be granted only in “limited circumstances.” Rhines, 544 U.S. at 277.
A stay is appropriate “where an outright dismissal could jeopardize the timeliness of a
collateral attack.” Crews v. Horn, 360 F.3d 146, 152 (3d Cir. 2004). In Mallory’s case, the
dismissal of his habeas petition does not jeopardize his ability to timely re-file it once he
has exhausted state remedies. Therefore, this claim fails.
We find that counsel’s thorough discussion of the reasons as to why no appealable
issue exists meets the requirements of Anders’s first prong. Our independent review of
the record confirms counsel’s conclusion that there are no non-frivolous issues for appeal.
III
For the reasons stated, we will affirm the judgment of the District Court and, in a
separate order, grant counsel’s motion to withdraw.

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