Ybarra v. Quarterman

Filing 920060919

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT September 19, 2006 Charles R. Fulbruge III Clerk No. 04-11302 Summary Calendar DANIEL YBARRA, Petitioner-Appellant, versus NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee. -------------------Appeal from the United States District Court for the Northern District of Texas USDC No. 3:02-CV-2380 -------------------Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PER CURIAM:* This court issued Daniel Chavez Ybarra (TDCJ # 1016250) a certificate of appealability (COA) to appeal the district court's dismissal of his 28 U.S.C. § 2254 petition wherein he challenged a 1994 deferred-adjudication conviction for aggravated kidnaping and a 2000 state-court judgment revoking his probation and sentencing him to 24 years of imprisonment. During the pendency

of the petition, Ybarra filed pleadings indicating that his counsel during the revocation proceedings was not licensed to

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

No. 04-11302 -2practice law during the revocation proceedings. Finding that the

claim was not exhausted in the state courts, the district court dismissed the "mixed" petition without prejudice. In his motion for a COA in this court, Ybarra argued for the first time that the district court should have sua sponte stayed the proceedings rather than dismiss the petition for failure to exhaust because any subsequent petition would be time-barred pursuant to 28 U.S.C. § 2244(d)(1). During the pendency of

Ybarra's motion, the Supreme Court decided Rhines v. Weber, 544 U.S. 269 (2005), which addressed, in part, the situation in which a petitioner filed a timely but mixed petition in federal district court and the court dismissed the petition for failure to exhaust after the limitations period had expired. Id. at 275.

This court issued Ybarra a COA on the issue whether, in light of Rhines, the district court reversibly erred in dismissing Ybarra's petition rather than sua sponte holding it in abeyance. A district court has discretion to stay, rather than dismiss, a "mixed" habeas petition "only in the limited circumstances" where there is "good cause" for the petitioner's failure to exhaust his claim first in state court, the petitioner's unexhausted claim is potentially meritorious, and the petitioner has not engaged in abusive litigation tactics or intentional delay. Rhines, 544 U.S. at 277-78.

Ybarra's only assertion on appeal is that his counsel's suspension from practice for non-payment of taxes rendered her

No. 04-11302 -3per se ineffective. This court has declined to apply a per se

ineffectiveness rule in situations involving unlicensed attorneys. See United States v. Maria-Martinez, 143 F.3d 914, Because his claim is not potentially

916-917 (5th Cir. 1998).

meritorious, Ybarra has not shown that the district court reversibly erred by not sua sponte granting a stay in the proceedings. AFFIRMED. See Rhines, 544 U.S. at 277.