Melina v. Pollard

Filing 8

ORDER denying 7 Motion to Stay by Magistrate Judge Boyd N. Boland on 4/30/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00637-BNB

DANIEL G. MELINA,
Applicant,
v.
WILLIAM POLLARD, Warden, and
JOHN W. SUTHERS, The Attorney General for the State of Colorado,
Respondents.

ORDER DENYING MOTION TO STAY

Applicant, Daniel G. Melina, is a prisoner in the custody of the Wisconsin
Department of Corrections at the Waupun Correctional Institution in Waupun,
Wisconsin. Applicant initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging his conviction in
the Adams County District Court. He has paid the $5.00 filing fee. On April 7, 2014, Mr.
Melina submitted a Motion to Stay and Hold Case No. 14-cv-00637-BNB in Abeyance
(ECF No. 7).
In the Application, Mr. Melina asserts the following six claims for relief:
1.

Claim One: Trial counsel’s failure to request a unanimity instruction
constitutes ineffective assistance of counsel.

2.

Claim Two: Trial counsel’s failure to introduce exculpatory evidence from
Robert Padilla and Harvey Steinberg constitutes ineffective assistance of
counsel.

3.

Claim Three: Failure to raise issues of duplicitous solicitation count prior to

trial constitutes ineffective assistance of counsel.
4.

Claim Four: Failure to request appropriate mistrial due to outside
influences on the jury.

5.

Claim Five: Brady violation by investigative agencies.

6.

Claim Six: Appellate counsel was ineffective for failing to raise or preserve
Batson issue on direct appeal.

(ECF No. 6 at 6-13).
In the Motion to Stay, Mr. Melina asks the Court to stay this action while he
returns to state court to fully exhaust claims two, three, four, and six. (See ECF No. 7).
In Rhines v. Weber, the Supreme Court held that a district court has discretion to stay a
mixed petition while the petitioner returns to state court to exhaust his unexhausted
claims. 544 U.S. 269, 277 (2005). However, "stay and abeyance should be available
only in limited circumstances." Id. Pursuant to Rhines, Mr. Melina’s motion to stay this
action may be granted only if: (1) he has good cause for his failure to exhaust his claims
first in state court; (2) the unexhausted claims potentially are meritorious; and (3) there
is no indication that he has engaged in intentionally dilatory litigation tactics. Id. at 278.
Although, Mr. Melina argues that these four unexhausted claims are potentially
meritorious, he does not address the first and third factors set forth in Rhines. Even
assuming, as Mr. Melina insists, that his appellate attorneys were ineffective and that
Mr. Melina has a state court remedy available because counsel was ineffective, he fails
to explain why he did not pursue that remedy and exhaust his claims first in state court
prior to filing the instant action. Accordingly, Mr. Melina cannot demonstrate good
cause for his failure to exhaust state remedies when he has failed to make any effort to
exhaust a remedy that he contends is available.

For these reasons, Mr. Melina’s request for to stay these proceedings while he
returns to state court to fully exhaust claims two, three, four, and six will be denied. Mr.
Melina is directed to file an amended application limited to the claims Mr. Melina
believes he has exhausted in state court. If Mr. Melina fails to file an amended
application that is limited to exhausted claims, the Court may dismiss the entire action
as a mixed petition. If the entire action is dismissed as a mixed petition, Mr. Melina will
be required to file a new application for a writ of habeas corpus in order to pursue any
claims in this Court and the one-year limitation period in § 2244(d) will be applied to
any new habeas corpus action he files without regard to the instant action. The fact that
the instant action may be timely does not mean that any future habeas corpus action
filed by Mr. Melina also will be timely. Furthermore, the time during which this federal
action was pending will not toll the one-year limitation period with respect to any new
habeas corpus action Mr. Melina may file. See Duncan v. Walker, 533 U.S. 167,
181-82 (2001). Accordingly, it is
ORDERED that the "Motion to Stay and Hold Case No. 14-cv-00637-BNB in
Abeyance" filed on April 7, 2014, is denied. It is
FURTHER ORDERED that, within thirty (30) days from the date of this order,
Mr. Melina file an amended application in which he raises only those claims for which he
believes state remedies are exhausted. It is
FURTHER ORDERED that the instant action may be dismissed as a mixed
petition if Mr. Melina fails within the time allowed to file an amended application in which
he raises only claims believed to be exhausted.

DATED April 30, 2014, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge