Deyon Thomas-Kay v. Warden S.C.I. Pine Grove

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DEYON THOMAS-KAY, ) ) Petitioner, ) ) v. ) Civil Action No. 3:24-216 ) Judge Nora Barry Fischer WARDEN S.C.I. PINE GROVE, ) Magistrate Judge Keith Pesto ) Respondent. ) ) MEMORANDUM ORDER AND NOW, this 22nd day of January, 2026, upon consideration of the Report and Recommendation filed by United States Magistrate Judge Keith A. Pesto on December 18, 2024, (Docket No. 15), recommending that Petitioner Deyon Thomas-Kay’s § 2254 Petition purporting to challenge his custody as a result of convictions in two separate criminal cases in the Court of Common Pleas of Cambria County, (Docket No. 6), be dismissed, without prejudice, because his state cases remained on direct appeal before the Superior Court of Pennsylvania at the time, and further recommended that no certificate of appealability should issue, and Petitioner timely filed Objections which were received by the Clerk of Court on December 30, 2024, (Docket No. 18), the U.S. Court of Appeals for the Third Circuit having dismissed an appeal of a separate Order on June 23, 2025, (Docket No. 27), this matter having been recently reassigned to the undersigned for prompt disposition, and upon independent review of the record and de novo consideration of the Magistrate Judge’s Report and Recommendation of December 18, 2024, (Docket No. 15), as well as Petitioner’s Motion to Proceed With Case which he filed on this date wherein he states that the Superior Court issued an Opinion on his direct appeal dated December 30, 2025 and asks that this matter proceed, (Docket No. 28), IT IS HEREBY ORDERED that Petitioner’s Objections [18] are OVERRULED and the Report and Recommendation [15] is ADOPTED as the Opinion of this Court, as supplemented herein. To that end, the Court agrees with the Magistrate Judge that the instant § 2254 Petition must be dismissed, without prejudice, for failure to exhaust administrative remedies. Although the Superior Court recently adjudicated Petitioner’s direct appeals of his criminal cases, the state court dockets from Cambria County reflect that he filed PCRA petitions at CP-11-CR-0001229-2022 and CP-11-CR-0001231-2022 on January 9, 2026 which remain pending. See Comm. v. Thomas- Kay, CP-11-CR-0001229-2022 and CP-11-CR-0001231-2022 (C.P. Cambria Jan. 9, 2026). Given that Petitioner has not shown that his state court remedies are unavailable or ineffective, the instant Petition will be dismissed, without prejudice. See e.g., Bush v. Dist. Att'y of Cnty. of Philadelphia, No. 24-1616, 2024 WL 4481877, at *1 (3d Cir. June 26, 2024) (“Here, Appellant has been convicted of two criminal offenses, but he has not filed a direct appeal or sought any other form of post-conviction relief in Pennsylvania state courts, and he has not shown that state-court remedies would be unavailable or ineffective. The District Court's dismissal was without prejudice, so Appellant may file a new petition for writ of habeas corpus after exhausting his claims in Pennsylvania state courts and subject to federal procedural requirements.”); IT IS FURTHER ORDERED that the Petition (Docket No. 6) is DISMISSED, without prejudice to Petitioner filing separate habeas petitions after he has exhausted his remedies in state court; IT IS FURTHER ORDERED that Petitioner’s Motion to Proceed With Case (Docket No. 28) is DENIED, as moot; IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has not made a substantial showing of the denial of a Constitutional right or shown that jurists of reason would disagree that the Petitioner has not exhausted his administrative remedies prior to filing this petition, see e.g., Slack v. McDaniel, 529 U.S. 473 (2000); Lambert v. Blackwell, 387 F.3d 210, 232 (3d Cir. 2004); and, IT IS FURTHER ORDERED that the Clerk of Court shall mark this case CLOSED. s/Nora Barry Fischer Nora Barry Fischer Senior U.S. District Judge cc/ecf: Magistrate Judge Keith A. Pesto All counsel of record. cc: Deyon Thomas-Kay QQ-2154 S.C.I. Pine Grove Fyock Road Indiana, PA 15701 (via first class mail)