September 5, 2013
SAUL A. MILLER, Petitioner,
DEREK SCHMIDT, et al., Respondents.
MEMORANDUM AND ORDER
Sam A. Crow U.S. Senior District Judge
The initial pro se petition filed in this federal habeas corpus action, 28 U.S.C. § 2254, was inadequate in that it failed to set forth any grounds, facts in support, or information showing exhaustion of state court remedies. Mr. Miller was ordered to submit an Amended Petition upon court-approved forms that set forth the requisite allegations and information. In response, he submitted his Amended Petition (Doc. 5), which has been reviewed by the court. The court finds that the Amended Petition is subject to dismissal because it contains both exhausted and unexhausted claims. However, Mr. Miller is given the opportunity to avoid dismissal by filing a Second Amended Petition that contains only exhausted claims.
In 2007, Mr. Miller was convicted in his second jury trial of Rape, Aggravated Criminal Sodomy, and 2 Counts Aggravated Indecent Liberties with a Child. His “first trial ended in a mistrial when the State repeatedly violated the trial court’s pretrial order limiting admission of the victim’s statement.” See State v. Miller, 264 P.3d 461, 465 (Kan. 2011). He directly appealed his convictions, and the Kansas Court of Appeals (KCA) affirmed in a published opinion, State v. Miller, 208 P.3d 774 (Kan.App. 2009). Mr. Miller appealed to the Kansas Supreme Court, which affirmed in a published opinion on October 28, 2011.
Mr. Miller lists 16 grounds for relief. In response to questions regarding exhaustion on his form Amended Petition he stated that four grounds were raised on direct appeal: (1) through (3), and (15). Thus, his exhausted claims are: (1) double jeopardy by retrying him after the mistrial; (2) prosecutorial misconduct; (3) improper admission of hearsay along with failure to order child victim to testify; and (15) defense attorney at second trial failed to object to same evidence, testimony, and comments that caused the first mistrial. Petitioner’s allegations regarding exhaustion made in connection with grounds (5) through (14) and (16) indicate that these issues were not raised on direct appeal. Petitioner does not show that he presented any of his claims in state post-conviction proceedings.
PETITION CONTAINS UNEXHAUSTED CLAIMS
It has long been established by case law that “before a petitioner may proceed in federal court under 28 U.S.C. § 2254, he or she must first exhaust viable state remedies.” Harris v. Champion, 938 F.2d 1062, 1064 (10th Cir. 1991); see Picard v. Connor, 404 U.S. 270, 275 (1971)(A state prisoner is generally required to exhaust available state court remedies before filing a habeas corpus action in federal court.); Hernandez v. Starbuck, 69 F.3d 1089, 1092– 93 (10th Cir. 1995), cert. denied, 517 U.S. 1223 (1996). 28 U.S.C. 2254(b)(1) also expressly provides that:
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—(A) the applicant has exhausted the remedies available in the courts of the State. . . .
Id. “A state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Generally, the exhaustion prerequisite is not satisfied unless every claim asserted has been presented by “invoking one complete round of the State’s established appellate review process.” Id. at 845. In this district, that means petitioner’s claims must have been “properly presented” as federal constitutional issues “to the highest state court, either by direct review of the conviction or in a post-conviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
Mr. Miller plainly reveals in his Amended Petition that only 4 of his 16 claims were exhausted prior to his filing of this federal habeas action. He alleges that these 4 claims were presented to the Kansas Supreme Court on direct appeal. He alleges no facts suggesting that he raised any claims by way of state post-conviction remedies or that these state remedies were either unavailable or ineffective. Petitioner baldly alleges that he failed to present his unexhausted claims in the state courts because his appellate counsel was ineffective. However, ineffective assistance of appellate counsel is a separate claim that must also be fairly presented through one complete round of the state’s judicial review process before it is raised in federal court. It is therefore clear from the face of the Amended Petition that it is a “mixed petition.”
MIXED PETITIONS MAY NOT BE ADJUDICATED
The United States Supreme Court held in Rose v. Lundy, 455 U.S. 509, 510 (1982), that a federal district court “may not adjudicate mixed petitions for habeas corpus, that is petitions containing both exhausted and unexhausted claims.” Id.; Pliler v. Ford, 542 U.S. 225, 227 (2004)(“Under Rose, federal district courts must dismiss ‘mixed’ habeas petitions.”). The Supreme Court cautioned in Rose:
[O]ur interpretation of §§ 2254(b), (c) provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court.
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[S]trict enforcement of the exhaustion requirement will encourage habeas petitioners to exhaust all of their claims in state court and to present the federal court with a single habeas petition.
Rose, 455 U.S. at 519-520. Under Rose and § 2254(b)(2), a district court faced with a mixed petition may dismiss the entire petition without prejudice to allow the petitioner to return to state court to fully exhaust his state remedies, or permit the petitioner to amend his federal petition to present only the exhausted claims. Under ordinary circumstances, a mixed federal petition is presented in time to be dismissed without prejudice, and the inmate can then return to state court, exhaust state judicial remedies on his unexhausted claims, and thereafter file another federal petition for review of all his claims.
STATUTE OF LIMITATIONS
Unfortunately, it appears that if the instant mixed petition is dismissed at this time in its entirety, Mr. Miller will be time-barred from filing a subsequent habeas application in federal court. In Rose, the Court “imposed a requirement of ‘total exhaustion’ and directed federal courts to effectuate this requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance.” Rhines v. Weber, 544 U.S. 269 (2005)(quoting Rose, 455 U.S. at 522). When the Court decided Rose, however, “there was no statute of limitations on the filing of federal habeas corpus petitions.” Id.
Consequently, “petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease.” Id. In 1996 Congress enacted AEDPA, which “dramatically altered the landscape for federal habeas corpus petitions.” Id. In particular, it “preserved [Rose]’s total exhaustion requirement, ” but “also imposed a 1–year statute of limitations on the filing of federal petitions.” Id.; see 28 U.S.C. § 2244(d)(1).). As the U.S. Supreme Court explained in Pliler:
The combined effect of Rose and AEDPA’s limitations period is that if a petitioner comes to federal court with a mixed petition toward the end of the limitations period, a dismissal of his mixed petition could result in the loss of all of his claims-including those already exhausted . . . .
Pliler, 542 U.S. at 230. The one-year limitations period applicable to Mr. Miller’s federal habeas claims appears to have expired a couple months after he initiated this action.
Mr. Miller’s direct appeal concluded on October 28, 2011, with the filing of the Kansas Supreme Court’s opinion affirming his convictions. Under federal law, the one-year statute of limitations applicable to federal habeas corpus petitions began to run ninety (90) days later on January 26, 2012. Mr. Miller executed the original petition filed herein on November 26, 2012. Thus, ten months of the one-year statute of limitations had already expired prior to Mr. Miller’s initiation of this action in federal court. As noted, the original petition was not on forms and did not even set forth claims. Nor did it contain any information regarding exhaustion. On December 18, 2012, the court gave Mr. Miller thirty (30) days to file an Amended Petition in which he specified his grounds for relief and showed exhaustion of state court remedies on each ground. Court-approved forms transmitted with that order cautioned petitioner that to “proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court.” On January 11, 2013, Mr. Miller filed a timely motion for extension of time “in regards to filing the 28 U.S.C. 2254 petition.”Meanwhile, the statute of limitations continued to run unabated for the reason that a pending federal habeas petition, unlike a state petition, has no tolling effect. See Duncan v. Walker, 533 U.S. 167 (2001)(The time during which a petition is pending in federal court does not toll the running of the one-year limitations period governing the habeas petitioner’s claims.). Consequently, on January 28, 2013, the statute of limitations applicable to Mr. Miller’s 2007 convictions expired. This was before he filed his Amended Petition and before the court became aware that he was filing a mixed petition. Had the court been aware that Mr. Miller’s Amended Petition would contain unexhausted claims, it might have warned him about the statute of limitations even though it has no obligation to give such warnings. Pliler, 542 U.S. at 231.
As a practical matter, Mr. Miller may now be left with only one of the two alternative “paths outlined in Rose if he wants to proceed with his federal habeas petition.” Id. at 233. He probably does not desire the option of dismissing this action in its entirety so that he may return to state court to exhaust his unexhausted claims, given that any future federal habeas corpus application filed by him would likely be considered time-barred, absent a showing of entitlement to statutory or equitable tolling. He is thus left with the option of amending his petition to present only exhausted claims.Mr. Miller is forewarned that when he files a Second Amended Petition that contains only his exhausted claims, his unexhausted claims will be dismissed and will not be reviewed in this action. Furthermore, if at a later time he attempts to file another § 2254 petition raising his currently-unexhausted claims after they have been exhausted, that federal petition will likely be considered “second and successive” in accordance with 28 U.S.C. § 2244(b)(2).Thus, once petitioner’s unexhausted claims are dismissed from this action and he proceeds upon his exhausted claims, it is unlikely that his unexhausted claims will ever be heard in federal court.
In order to continue to proceed in this pending federal habeas corpus action, Mr. Miller is required to file a “Second Amended Petition” on court-provided forms that contains only claims that have been fully and properly exhausted. He must write “Second Amended” and the number of this case, 12-3245, at the top of the first page of his petition. He must completely fill out the form petition. He may not simply refer to his prior petition as it will be entirely superseded by his Second Amended Petition. All grounds and facts to be considered must be included in the Second Amended Petition or they will not be before the court. If Mr. Miller fails to file his Second Amended Petition within the time prescribed by the court, this action may be dismissed in its entirety without further notice for failure to exhaust state remedies.
STAY OF HABEAS CORPUS PROCEEDINGS
In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held that the federal district court has discretion to stay a mixed petition and “hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims.” Then once petitioner has totally exhausted state remedies, the stay is lifted and he may proceed in federal court. This procedure may be appropriate where, as here, an outright dismissal would jeopardize the timeliness of a petitioner’s collateral attack in federal court. However, the Supreme Court warned in Rhines that a stay and abeyance of habeas proceedings should be “available only in limited circumstances” lest it undermine the legislative goals in AEDPA. Thus, the Court recommended a stay where “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.” Rhines, 544 U.S. at 277, 278.
Mr. Miller has not filed a Motion for Stay and Abeyance of these proceedings. Nor has he alleged facts indicating that he would be entitled to stay and abeyance. In order to request a stay, petitioner must file a proper motion and therein state facts showing that each of the three Rhines factors exist in this case, including good cause for his failure to exhaust all his claims prior to filing this action in federal court. Conclusory statements will not suffice.
As noted, before responding to the court’s initial order, Mr. Miller filed a motion he entitled “Motion for Stay of Brief and/or Extension of Time” (Doc. 4). The only relief sought in this motion is an extension of time “in regards to filing” his 2254 petition and “in which to secure the documents necessary to an informed appeal of his conviction.” Thereafter, Mr. Miller filed his Amended Petition with pages of transcript attached(Doc. 5). It thus appears that this motion for extension of time is moot.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s motion for extension of time (Doc. 4) is dismissed as moot.
IT IS FURTHER ORDERED that this petition for a writ of habeas corpus will be dismissed due to petitioner’s failure to exhaust available state court remedies as to all claims, unless within thirty (30) days of this order petitioner files a complete Second Amended Petition upon court-provided forms presenting only his claims which have been exhausted.
The clerk is directed to send petitioner forms for filing a § 2254 petition.
IT IS SO ORDERED.