Urcinoli v. Cathel

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit

11-7-2008

Urcinoli v. Cathel
Precedential or Non-Precedential: Precedential

Docket No. 06-4028

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 PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 06-4028

LOUIS P. URCINOLI,

Appellant

v.

RONALD H. CATHEL, Superintendent;
ATTORNEY GENERAL OF THE STATE OF NEW
JERSEY;
OCEAN COUNTY PROSECUTOR'S OFFICE

On Appeal from the District Court
for the District of New Jersey
(No. 05-cv-04776)
District Judge: Honorable Garrett E. Brown, Jr.

Argued September 11, 2008

Before: SLOVITER, FUENTES, and ALDISERT, Circuit
Judges

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 (Opinion Filed: November 7, 2008)

David R. Fine, Esq. (Argued)
Kirkpatrick & Lockhart Preston Gates Ellis
17 North Second Street, 18th Floor
Harrisburg, PA 17101

Attorney for Appellant

Roberta DiBiase, Esq. (Argued)
Samuel J. Marzarella, Esq.
Office of County Prosecutor
Ocean County
119 Hooper Avenue
P.O. Box 2191
Toms River, NJ 08754

Attorneys for Appellees

OPINION OF THE COURT

FUENTES, Circuit Judge:
Louis P. Urcinoli was convicted of murder, conspiracy to
commit murder, and attempted murder by a New Jersey jury in
1996. The District Court on its own motion dismissed his
subsequent habeas petition because it contained claims that had

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not been properly exhausted in state court. Although Urcinoli
returned to state court to exhaust those claims, by the time he
filed a second habeas petition in federal court, the one-year
statute of limitations for such petitions had lapsed. The District
Court accordingly dismissed the petition as untimely, refusing
to equitably toll the limitations period.
Although the District Court’s initial dismissal of
Urcinoli’s petition was not improper under prevailing law, we
conclude that the one-year statute of limitations should have
been equitably tolled to allow him to bring those claims in his
second petition. Therefore, we will vacate the District Court’s
dismissal and remand for further proceedings.1
I.
A detailed timeline of Urcinoli’s journey through state
and federal court will illuminate the basis for our decision.
Urcinoli was convicted of murder, conspiracy to commit
murder, and attempted murder in New Jersey state court on
December 13, 1996. He was sentenced to a term of life
imprisonment plus twenty years. The Appellate Division of the
New Jersey Superior Court affirmed the conviction and sentence
and the New Jersey Supreme Court denied certification.
Thereafter, Urcinoli pursued a pro se motion for post-conviction

1
We pause to express our appreciation to pro bono
counsel, Mr. David Fine of Kirkpatrick & Lockhart Preston
Gates Ellis, for representing Louis Urcinoli in this appeal. Our
outcome is due, in no small measure, to Mr. Fine’s commitment
of time and effort and his professionalism on behalf of his
client.

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relief in the New Jersey courts, a process that ended with the
affirmance of Urcinoli’s conviction and sentence on May 22,
2002. On August 5, 2002, Urcinoli filed a pro se habeas petition
under 28 U.S.C. § 2254 in the U.S. District Court for the District
of New Jersey, raising eight alleged constitutional violations.
Although neither Urcinoli nor the state respondents had
raised the issue of exhaustion, the District Court independently
decided the issue without notice or a hearing. The Court
determined that Urcinoli had not exhausted five of his eight
claims by properly presenting them to the New Jersey courts as
federal constitutional claims and thus had an invalid “mixed”
petition.2 Finding that Urcinoli could still utilize New Jersey’s

2
The grounds for habeas relief were as follows:
(1) a violation of the Fourteenth Amendment based on the
denial of his motion for a judgment of acquittal absent evidence
sufficient to allow a reasonable jury to convict;
(2) a warrantless search of his apartment violating the Fourth
Amendment;
(3) admission of irrelevant evidence at trial in violation of the
Fourteenth Amendment;
(4) a failure to sever the charges against him at trial in violation
of the Fourteenth Amendment;
(5) admission of expert DNA testimony in violation of the
Fourteenth Amendment;
(6) incomplete jury instructions in violation of the Due Process
Clause of the Fourteenth Amendment;
(7) ineffective assistance of trial counsel based on a failure to
request certain jury instructions and other errors; and
(8) ineffective assistance of trial counsel for failure to properly

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post-conviction relief process to exhaust those claims, the
District Court dismissed the petition without prejudice on
October 31, 2003. By that time, fourteen months after Urcinoli
had filed his § 2254 petition, the one-year limitations period for
filing a subsequent petition under the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) had passed.
In its opinion, the District Court noted:
Those prisoners who misunderstand this [total
exhaustion] requirement and submit mixed
petitions nevertheless are entitled to resubmit a
petition with only exhausted claims or to exhaust
the remainder of their claims. . . . However, a
prisoner who resubmits the petition after deleting
the unexhausted claims will generally be barred
from later submitting the deleted claims in a
second or successive petition after they have been
exhausted.
(App. 69 n.7 (internal quotation marks and citations omitted).)
The Court did not offer Urcinoli the option of deleting the
unexhausted claims from his petition and proceeding on the ones
that had been exhausted before it decided to dismiss. Urcinoli
did not attempt to refile his petition with only the three
exhausted claims, nor did he ask the District Court to reconsider
its decision.
On December 13, 2003, six weeks after the District Court

cross-examine several witnesses.
The District Court found that Urcinoli had not exhausted the
first, third, fourth, fifth, and sixth of these claims in state court.

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dismissed his petition, Urcinoli filed a second motion for post-
conviction relief in state court. He received a final denial of that
motion from the New Jersey Supreme Court on September 12,
2005. Approximately two weeks later, on September 29, 2005,
Urcinoli filed a second pro se § 2254 petition, containing the
eight grounds from the original petition.
On August 3, 2006, the District Court dismissed this
second petition as untimely under 28 U.S.C. § 2244(d)(1), which
provides for a one-year time limit on AEDPA petitions. The
court held that the limitations period commenced on May 22,
2002, when the New Jersey Supreme Court declined to review
Urcinoli’s post-conviction appeal. Because AEDPA does not
provide for tolling of the limitations period while a § 2254
petition is pending in federal court, as Urcinoli’s was for more
than fourteen months, the one-year limitations period expired on
May 22, 2003. See Duncan v. Walker, 533 U.S. 167, 181
(2001). Therefore, the District Court ruled that Urcinoli’s
second § 2254 petition, filed on September 29, 2005, was
untimely.3 The court refused to equitably toll the one-year time
limitation, reasoning that it was foreclosed from doing so by
Third Circuit and Supreme Court precedent. This appeal
followed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C.
§ 2254. We have jurisdiction under 28 U.S.C. §§ 1291, 2253.

3
As previously noted, the one-year limitations period
had already lapsed even before the District Court dismissed
Urcinoli’s first habeas petition.

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We granted a certificate of appealability on the issue of whether
Urcinoli was entitled to equitable tolling in light of the sua
sponte dismissal of his petition after AEDPA’s time limitation
had run, rendering any subsequent petition time-barred. We
exercise plenary review over the District Court’s refusal to
equitably toll the one-year statute of limitations. See Merritt v.
Blaine, 326 F.3d 157, 161 (3d Cir. 2003).
III.
AEDPA’s limitations period is subject to equitable tolling
principles. Miller v. N.J. State Dep’t of Corrections, 145 F.3d
616, 617-19 (3d Cir. 1998). A statute of limitations “can be
tolled when principles of equity would make [its] rigid
application unfair.” Shendock v. Dir., Office of Workers’
Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990).
Generally, such a situation arises if “(1) the defendant has
actively misled the plaintiff; (2) if the plaintiff has in some
extraordinary way been prevented from asserting his rights; or
(3) if the plaintiff has timely asserted his rights mistakenly in the
wrong forum.” Satterfield v. Johnson, 434 F.3d 185, 195 (3d
Cir. 2006) (internal quotation marks omitted). Only the second
circumstance, whether Urcinoli has been prevented from
asserting his rights in some extraordinary way, is implicated
here.4 The plaintiff bears the burden of showing that such an

4
Blurring the first and second categories, we have also
held that one eligible “extraordinary” circumstance might be
“where a court has misled a party regarding the steps that the
party needs to take to preserve a claim.” Brinson v. Vaughn, 398
F.3d 225, 230 (3d Cir. 2005). Citing Brinson, Urcinoli invokes

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extraordinary event has stood in his way, and must also
demonstrate that he “diligently pursued his rights.” McAleese v.
Brennan, 483 F.3d 206, 219 (3d Cir. 2007) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).
A.
We conclude that Urcinoli was prevented from pursuing
his habeas claims, in an “extraordinary way,” when the District
Court, relying upon Rose v. Lundy, dismissed his timely, fully
exhausted claims in a way that ensured they would never be
reviewed by a federal court. Although the District Court noted
in a footnote that Urcinoli could resubmit those claims after
deleting the unexhausted claims from his petition, that formal
acknowledgment was of little help to Urcinoli. Even if he had
chosen to forgo exhaustion of all of his claims and had
immediately resubmitted a petition with only the three exhausted

a non-precedential opinion in which a panel of this Court
equitably tolled AEDPA’s one-year deadline in a situation
where a court had dismissed a partially exhausted petition after
the limitations period expired. However, that decision rested on
the rationale that the district court had affirmatively misled the
petitioner through its unreasonably positive portrayal of the
petitioner’s chances of having his unexhausted claims heard in
state court. Here, the District Court’s assessment of Urcinoli’s
prospects in state court appears to have been materially correct.
Furthermore, as we discuss below, the District Court committed
no other legal error in its disposition of Urcinoli’s first petition.
It is not any legal error or misleading statement by the District
Court that mandates equitable tolling in this case but rather our
broader view of the equities of the situation.

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claims, that second petition would have been untimely because
the one-year limitations period had already expired.5 Cf. Tillema
v. Long, 253 F.3d 494, 504 (9th Cir. 2001) (noting that where
a district court dismisses a petition after the one-year limitations
period has ended, even if it does so without prejudice, the
practical consequence is to “extinguish[] [the petitioner’s] right
to federal habeas review” for further petitions). Thus, the
District Court effectively denied Urcinoli his only viable option,
leaving him to pursue the futile path of presenting his
unexhausted claims in state court, even though AEDPA’s one-
year limitations period had passed and any further petition
would be barred.6

5
Furthermore, as a pro se petitioner, Urcinoli may well
have been confused about the proper course of action in light of
the District Court’s decision. Although the Court mentioned the
choices of deletion versus exhaustion, it warned only that
deletion would require Urcinoli to give up on his unexhausted
claims without mentioning that the ticking clock of AEDPA
could render exhaustion of those claims in state court
impossible.
6
In this respect, Urcinoli’s case is unlike that of the
petitioner in Jones v. Morton, 195 F.3d 153 (3d Cir. 1999), the
case relied on by the District Court in denying equitable tolling.
In Jones, the court denied equitable tolling because the
petitioner refused to seek exhaustion in state court even after his
original mixed petition was dismissed. Id. at 160. Urcinoli, on
the other hand, duly attempted to present his unexhausted claims
in state court once the District Court pointed out their status.

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 The District Court acted properly when it dismissed
Urcinoli’s petition as a mixed petition under Rose v. Lundy, 455
U.S. 509 (1982). In that case, the Supreme Court held that no
federal court may hear a petition containing both exhausted and
unexhausted claims. Id. at 522. However, the Court also stated
that a prisoner bringing a mixed petition has two choices: he
may accept a dismissal and return to state court to exhaust any
unexhausted claims, or he may delete the unexhausted claims
from the petition and proceed only with the remaining exhausted
claims. Id. at 519 (noting that a petitioner “can always amend [a
mixed] petition to delete the unexhausted claims, rather than
returning to state court to exhaust all of his claims”).
Deletion of unexhausted claims is an important
procedural choice for habeas petitioners to have available.
Because of AEDPA’s short limitations period, the alternative of
exhausting any unexhausted claims is often an illusory one,
since it is not uncommon for a district court to dismiss a mixed
petition after the one-year limitations period has passed and no
time remains to return to state court. The Supreme Court
recognized and ameliorated that problem in 2005, adding a third
alternative to the Rose procedure by providing that in certain
circumstances a district court may “stay the [mixed] petition and
hold it in abeyance while the petitioner returns to state court to
exhaust his previously unexhausted claims.” Rhines v. Weber,
544 U.S. 269, 275-76 (2005). However, at the time Urcinoli’s
first petition was dismissed in 2003, the “stay-and-abeyance”
procedure approved in Rhines had not yet been sanctioned.7
Moreover, Justice O’Connor made it clear in Rhines that since
stay-and-abeyance is to be used only in “limited circumstances,”

7
We created our own version of the stay-and-abeyance
procedure before the Supreme Court’s decision in Rhines, but
that decision also post-dated the District Court’s October 31,
2003 dismissal. See Crews v. Horn, 360 F.3d 146 (3d Cir.
2004).

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where it is not warranted a court should at least afford the
petitioner an opportunity to carve up the petition to keep the
exhausted claims and dismiss the unexhausted ones. Id. at 277-
78.
Unlike the usual petitioner, Urcinoli therefore had none
of the three options for going forward with a mixed petition.
First, he could not refile his petition with the unexhausted claims
deleted, because the District Court’s dismissal after the end of
AEDPA’s limitations period meant that any refiling would be
time-barred. Second, his attempt to achieve total exhaustion was
futile from the start, since a subsequent petition filed after a trip
through the New Jersey courts would be even more untimely.
Finally, the “stay-and-abeyance” procedure had not yet been
established when Urcinoli’s first petition was dismissed in 2003.
The latter two procedures are by no means guaranteed to
a habeas petitioner: AEDPA’s one-year window places a
practical limit on how many times a petitioner can travel back
and forth between state and federal court, while only certain
habeas petitioners are eligible for stay-and abeyance.8 Id.
However, as the Supreme Court recognized in Rose and
affirmed in Rhines, the deletion route remains as a backstop
alternative for those petitioners caught between the total
exhaustion rule and AEDPA’s statute of limitations:
[I]f a petitioner presents a district court with a
mixed petition and the court determines that stay
and abeyance is inappropriate, the court should
allow the petitioner to delete the unexhausted

8
Specifically, the Court held that a district court should
allow a petitioner to stay only if he can demonstrate good cause
for the failure to first exhaust his claims in state court, the
unexhausted claims are not plainly meritless, and the petitioner
has not engaged in “abusive litigation tactics or intentional
delay.” Rhines, 544 U.S. at 277-78.

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 claims and to proceed with the exhausted claims
if dismissal of the entire petition would
unreasonably impair the petitioner’s right to
obtain federal relief.
Rhines, 544 U.S. at 277-78 (citing Rose, 455 U.S. at 522).
Equitable tolling is an appropriate remedy in this case to
ensure Urcinoli has the opportunity to have the court evaluate
the claims originally presented. Cf. Jefferson v. Budge, 419 F.3d
1013, 1016-17 (9th Cir. 2005) (tolling AEDPA’s statute of
limitations where the district court had failed to provide a
habeas petitioner the option of deleting unexhausted claims
rather than returning with those claims to state court); Tillema
v. Long, 253 F.3d 494, 503-04 (9th Cir. 2001) (same). The
District Court’s dismissal, without notice to Urcinoli, prevented
him from using the deletion option, noted both in Rose and by
the District Court itself, to achieve a fair hearing of his properly
exhausted claims. (See App. 69 n.7 (“‘Those prisoners who
misunderstand this [total exhaustion] requirement and submit
mixed petitions nevertheless are entitled to resubmit a petition
with only exhausted claims or to exhaust the remainder of their
claims.’”) (quoting Rose, 455 U.S. at 519).) The lack of notice
was especially problematic because, as a pro se petitioner,
Urcinoli was less likely to foresee the exhaustion issue on his
own or to know how to avoid it.
We emphasize that the District Court did not err legally
in dismissing Urcinoli’s petition without giving him notice and
the opportunity to respond to the exhaustion argument on the
merits, delete the exhausted claims, or seek a stay of the
petition. Although we have held that a district court may not sua
sponte dismiss a habeas petition for lack of timeliness without
affording the petitioner “notice and an opportunity to respond,”
that decision came after the District Court’s 2003 dismissal of
Urcinoli’s petition. See United States v. Bendolph, 409 F.3d
155, 166-67 (3d Cir. 2005) (en banc).
Nonetheless, a court’s action, even if legitimate when

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taken, may constitute an extraordinary circumstance warranting
equitable tolling if it later operates to prevent a plaintiff from
pursuing his rights. For example, in Taylor v. Horn, we
approved the equitable tolling of AEDPA’s limitations period
based on an incorrect prediction by a district court rather than
any legal error. 504 F.3d 416, 426-27 (3d Cir. 2007). The
district court had dismissed Taylor’s first petition as mixed,
declining to stay the petition because of its belief that a second,
fully exhausted petition would relate back to the first petition
and thus remain timely. Id. at 426. However, while Taylor was
pursuing his claims in state court we ruled that a second habeas
petition does not relate back to a first petition dismissed for
failure to exhaust. See Jones v. Morton, 195 F.3d 153 (1999).
Recognizing its misstep, the district court equitably tolled
AEDPA’s limitations period to allow Taylor to bring his second
petition, reasoning that he would not have originally denied
Taylor’s request for a stay if he had had the benefit of Jones and
a second Third Circuit decision, Crews v. Horn, 360 F.3d 146
(3d Cir. 2004), allowing such stays. Taylor, 504 F.3d at 426-27.
We approved the district court’s decision that its actions
constituted an extraordinary circumstance that had prevented
Taylor from asserting his rights, despite the fact that its
dismissal had not contravened any precedent governing at that
time.
Equitable tolling is similarly necessary here to allow
Urcinoli to pursue his claims. The District Court’s sua sponte
dismissal under Rose was an extraordinary circumstance that
left Urcinoli without a viable channel for having any of his
claims addressed on the merits. Rose was meant only to prevent
review of unexhausted habeas claims, not to bar viable,
exhausted claims from federal court review.
Contrary to the State’s assertions, Pliler v. Ford, 542 U.S.
225 (2004), does not forbid this result. In Pliler, the Supreme
Court overturned a Ninth Circuit decision that required district
courts to warn habeas petitioners presenting mixed petitions if

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AEDPA’s limitations period had expired. Id. at 231. The
purpose of the warning was to inform a petitioner that if he
chose to pursue exhaustion instead of deletion he would
effectively be foreclosed from refiling in federal court. Id. at
229-30. The Supreme Court rejected any such mandatory
notification on the grounds that it “would force upon district
judges the potentially burdensome, time-consuming, and
fact-intensive task of making a case-specific investigation and
calculation of whether the AEDPA limitations period has
already run or will have run by the time the petitioner returns to
federal court.” Id. at 232. In this case, however, we do not grant
equitable tolling based on any failure by the District Court to
determine that Urcinoli’s window for filing a second habeas
petition had expired and to advise him that a return to state court
would be futile. Rather, we do so because Urcinoli was deprived
of the ability to choose for himself whether deletion of his
unexhausted claims or an attempt to fully exhaust all his claims
would be his best option.
In Pliler, the Supreme Court disavowed any reading of
Rose that would impose a requirement for district courts to
affirmatively offer petitioners the choice of deleting
unexhausted claims from mixed petitions or returning with those
claims to state court. Id. at 233. However, in doing so the
plurality explained that “Rose requires dismissal of mixed
petitions, which, as a practical matter, means that the prisoner
must follow one of the two paths outlined in Rose if he wants to
proceed with his federal habeas petition.” Id. That is, after
dismissal of a mixed petition, a petitioner must choose whether
to seek full exhaustion or to refile only his exhausted claims.
Urcinoli’s situation illustrates that the assumption that both
paths will remain open post-dismissal is not always correct.
We are further convinced that Pliler is inapplicable here
in light of its discussion of Castro v. United States, 540 U.S. 375
(2003). Castro, a federal prisoner acting pro se, had filed what
he called a motion for new trial, attacking his drug conviction.

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Id. at 378. The district court sua sponte recharacterized that
motion as a habeas petition and denied Castro’s claims. Id.
When he later filed a petition under AEDPA, the district court
dismissed that filing as a forbidden successive habeas petition.
Id. at 378-79. The Supreme Court held that the
recharacterization of the first motion was improper because the
district court had not warned Castro of the consequences under
AEDPA, including the bar on successive petitions, and had not
given him a chance to oppose the recharacterization or to
withdraw or amend the motion. Id. at 382; cf. United States v.
Miller, 197 F.3d 644 (3d Cir. 1999) (similar holding). In Pliler,
Justice Thomas explained that the notice required by Castro was
distinguishable from the Ninth Circuit’s proposed warning
because Castro “dealt with a District Court, of its own volition,
taking away a petitioner’s desired route,” as opposed to the
voluntary dismissal at issue in Pliler. 542 U.S. at 233-34.
Urcinoli’s case is far more similar to Castro’s forced imposition
of a potentially harmful course of action on a petitioner than to
Pliler, where the Supreme Court dealt with a court’s failure to
warn a petitioner that his chosen approach was unwise.9 Thus

9
Pliler does not address whether a district court has some
obligation to expressly offer petitioners both options—deletion
or exhaustion—even if it makes no recommendation as to which
course to take. We suggested that such a duty might exist in
Brinson, stating that where a petitioner presented at least one
meritorious, exhausted claim in a mixed petition, “the District
Court, at a minimum, should have given [him] the option of
going forward with” that claim. 398 F.3d at 231-32 (citing Rose,
455 U.S. at 510). Since Urcinoli’s complaint is not that he was
not informed of the deletion route, but rather that he could not
take it, it is not necessary to address the import of Pliler in such
a situation. However, we think it a good practice for a district
court to advise a petitioner of his options in going forward with
a mixed petition.

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we do not tread into Pliler’s forbidden ground in granting
equitable tolling based on the District Court’s dismissal of
Urcinoli’s petition without giving him notice of the
consequences of that dismissal.
In our view, the Court’s dismissal of Urcinoli’s petition
without notice deprived Urcinoli of his rights in an extraordinary
way. Although that dismissal was not incorrect under
contemporaneous precedent, in applying equitable tolling
doctrine we do not focus solely on legal error. We rest our
holding on the fact that the district court’s sua sponte dismissal,
a circumstance outside of Urcinoli’s control and independent of
any blameworthy behavior on his part, rendered him unable to
pursue his only viable course of action. In such a situation, the
equities favor relief to allow Urcinoli access to federal review of
his claims.
B.
In addition to showing that he was prevented from
pursuing his rights in some extraordinary way, Urcinoli must
prove he exercised reasonable diligence in attempting to
exercise those rights. Merritt v. Blaine, 326 F.3d 157, 168 (3d
Cir. 2003). “This obligation does not pertain solely to the filing
of the federal habeas petition, rather it is an obligation that exists
during the period appellant is exhausting state court remedies as
well.” LaCava v. Kyler, 398 F.3d 271, 277 (3d Cir. 2005). Here,
Urcinoli promptly sought initial state post-conviction relief,
brought his first habeas petition, filed a state post-conviction
motion for his unexhausted claims after that petition was
dismissed, and returned to federal court with his second § 2254
petition. Compare Pace v. DiGuglielmo, 544 U.S. 408, 419
(2005) (refusing to toll AEDPA limitations period where
petitioner waited years to seek relief); Merritt, 326 F.3d at 170
(rejecting equitable tolling for lack of diligence where petitioner
unnecessarily waited two years to file habeas petition).
It is true that Urcinoli’s conduct was imperfect in one
respect: he did not fully exhaust all of his claims before bringing

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them to federal court in his first § 2254 petition. However, that
lapse does not indicate a lack of diligence on Urcinoli’s part, but
rather a lack of legal knowledge as to his obligation to exhaust.
Therefore, the initial failure to exhaust does not affect Urcinoli’s
eligibility for equitable tolling. Cf. Taylor v. Horn, 504 F.3d
416, 427 (3d Cir. 2007) (holding that petitioner acted diligently
and equitable tolling was warranted without reference to fact
that his initial petition was mixed); Brinson v. Vaughn, 398 F.3d
at 232 (same).
IV.
This result does not expand equitable tolling beyond its
scope as a remedy invoked only “sparingly,” Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990), since
circumstances such as these are less likely to arise in the future
in light of Rhines and Bendolph. In facing a potentially mixed
habeas petition, Bendolph directs district court judges to notify
a petitioner (especially a pro se petitioner) of the exhaustion
issue, if he is not already aware of it, and to give him an
opportunity to respond to the allegation of non-exhaustion. 409
F.3d at 166-67. That notice will also allow a petitioner to
indicate his preferred course of action as to any unexhausted
claims. If a district court finds that a petition does contain
unexhausted claims, the court should consider whether stay-
and-abeyance is an appropriate measure under the test set out in
Rhines. 544 U.S. at 277-78. These steps ensure that each
petitioner is free to pursue any of the three routes now available
for dealing with mixed petitions.
V.
For the foregoing reasons, we will reverse the District
Court’s dismissal of the second § 2254 petition and remand for
the court to consider the exhausted claims Urcinoli presented in
his petition. In light of our decision to remand, we need not
reach the State’s argument that Urcinoli’s claims are still
unexhausted.

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