JOHN F. FRANCIS, Petitioner,
REX PRYOR, Warden, Respondent.
MEMORANDUM AND ORDER
Sam A. Crow, U.S. Senior District Judge
This matter is before the court upon petitioner’s Motion to Stay Proceedings (Doc. 8) to allow him to exhaust claims that are pending on collateral appeal in state court. Having considered petitioner’s Motion, respondent’s Response (Doc. 9), and petitioner’s “Supplemental Motion to Stay Proceedings” (Doc. 13) together with the procedural history of petitioner’s state criminal case, the court denies petitioner’s motion and dismisses this action as “mixed” and for failure to exhaust state court remedies. This dismissal is without prejudice to petitioner filing a federal habeas corpus petition once he has fully exhausted all available state court remedies.
BACKGROUND AND ARGUMENTS
Mr. Francis filed this federal habeas corpus petition pro se. The court ordered respondents to show cause. While the court awaited respondent’s Answer and Return, petitioner retained counsel. Counsel entered an appearance on behalf of petitioner and filed this Motion to Stay.
Mr. Francis alleged in his pro se petition that he had exhausted state remedies on all his claims and that “state post-conviction remedy proceedings were finalized on November 16, 2012.” However, in his Motion to Stay it is revealed that “Mr. Francis is currently pursuing an appeal of the denial of a post-conviction remedy in the Kansas Court of Appeals” (KCA). This second state post-conviction proceeding is said to challenge petitioner’s state conviction on the same claims of ineffective assistance of counsel as are raised in ground 10 of the instant federal petition.
Respondent argues in his Response that “a stay is inappropriate, ” the proper course is to dismiss this action without prejudice to allow petitioner to exhaust, and that “[u]pon completion of his state court proceedings, Petitioner may then seek federal habeas review.” Respondent cites Rhines v. Weber, 544 U.S. 269, 276 (1995), and argues that petitioner states no cause for his failure to exhaust state remedies before filing his federal petition and fails to present reasons justifying a stay.
The court directed petitioner to supplement his Motion to Stay and “address whether the instant petition contains both exhausted and unexhausted claims, and whether a new § 2254 petition can be filed within the § 2244(d)(1) limitation period upon resolution of petitioner’s pending state court appeal.” In his Supplemental Motion to Stay, petitioner admits that his petition is mixed but argues that he satisfies the three-pronged test of Rhines, including “good cause for his failure to exhaust.” To show the good cause factor, he alleged that he is “an unwary petitioner” that “does not possess an intimate knowledge of civil procedure, ” and that once he learned of “his mistake, ” he filed “a second state habeas petition to exhaust his remaining claim.”
“A district court may not grant a habeas petition if the prisoner has not exhausted the available state court remedies.” Mendenhall v. Parker, 535 Fed.Appx. 757, 758 (10th Cir. 2013)(unpublished opinion cited for persuasive reasoning)(citing see 28 U.S.C. § 2254(b)(1); Coleman v. Thompson, 501 U.S. 722, 731 (1991)). 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.” 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.
[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 exhausted claims.
In Rhines v. Weber, the Supreme Court ruled that a stay and abeyance procedure was available when a federal habeas petitioner that has filed a mixed petition meets three requirements-
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 ...