Francis (ID 79594) v. Pryor
Filing
14
MEMORANDUM AND ORDER ENTERED: Petitioner's motion 8 to stay proceedings is denied. This action is dismissed, without prejudice, because the petition is mixed and all available state court remedies have not been exhausted. Signed by Senior District Judge Sam A. Crow on 1/28/2014. (smnd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN F. FRANCIS,
Petitioner,
v.
CASE NO. 13-3110-SAC
REX PRYOR,Warden,
Respondent.
MEMORANDUM AND ORDER
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”1 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.
1
A
claims.
The court ordered respondents to show cause.
petition
is
“mixed”
that
contains
1
both
exhausted
and
While the
unexhausted
court
awaited
respondent’s
retained counsel.
Answer
and
Return,
petitioner
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 postconviction
2012.”
remedy
proceedings
were
finalized
on
November
16,
However, in his Motion to Stay it is revealed that “Mr.
Francis is currently pursuing an appeal of the denial of a postconviction remedy in the Kansas Court of Appeals” (KCA).
second
state
post-conviction
proceeding
is
said
to
This
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.2
Respondent
inappropriate,”
without
argues
the
prejudice
in
proper
to
allow
his
course
Response
is
petitioner
to
to
that
dismiss
“a
stay
this
exhaust,
is
action
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
2
Petitioner raised claims of ineffective assistance of counsel in his
first 60-1507 motion and exhausted those claims.
The claims he presents in
Ground 10 of his federal petition appear similar to his exhausted claims as
well as to the claims he alleges are now before the KCA in his second 60-1507
proceedings.
He seems to have refined some of these claims, and in any
event, the court accepts petitioner’s admission that his claims currently
before the KCA are not exhausted.
2
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.”
his
Supplemental
Motion
to
Stay,
petitioner
admits
that
In
his
petition is mixed but argues that he satisfies the three-pronged
test
of
Rhines,
exhaust.”
“an
including
“good
cause
for
his
failure
to
To show the good cause factor, he alleged that he is
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.”
LEGAL STANDARDS
“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
3
“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.
district
court
faced
with
Under Rose and § 2254(b)(2), a
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.3
In Rhines v. Weber, the Supreme Court ruled that a stay and
abeyance
petitioner
procedure
that
has
was
available
filed
a
when
mixed
a
federal
petition
meets
habeas
three
requirementspetitioner 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.
3
Alternatively, the court may deny the entire petition if it finds that
all claims are without merit.
4
Rhines, 544 U.S. at 278.
The Court in Rhines further held that
if:
the court determines that stay and abeyance is
inappropriate, the court should allow the petitioner
to delete the unexhausted claims and to proceed with
the exhausted claims if dismissal of the entire
petition would unreasonably impair the petitioner’s
right to obtain federal relief.
Id. at 278; Fairchild v. Workman, 579 F.3d 1134, 1154 (10th Cir.
2009)(emphasis added).
If stay and abeyance is employed too
frequently, it will undermine AEDPA’s goals of furthering “the
principles
of
streamlining
comity,
federal
finality,
habeas
and
federalism”
proceedings
by
as
well
as
requiring
a
petitioner to exhaust all his claims in state court prior to
filing his federal petition.4
Woodford v. Garceau, 538 U.S. 202
(2003)(quoting Williams v. Taylor, 529 U.S. 420, 436, (2000)).
Petitioner as movant has the burden to show he is entitled to a
stay of these proceedings.
DISCUSSION
The
parties
agree
that
the
instant
petition
is
mixed.
Petitioner states that he has not exhausted his 6 claims of
ineffective assistance of counsel raised under Ground 10 and
4
To the extent that the exhaustion requirement reduces piecemeal
litigation, both the courts and the prisoners should benefit in that the
federal court may review all of the prisoner’s claims in a single proceeding,
thus providing for a more focused and thorough review.
Rose, 455 U.S. at
519-20.
5
that these claims are currently being litigated in his pending
state collateral-appeal proceedings.
the instant federal
He asks the court to stay
proceedings “so that he may exhaust all
pending state remedies.”
Petitioner’s Motion to Stay is denied for the reason that
the court is not at all convinced that a stay and abeyance is
appropriate or necessary at this time in this case.
Petitioner
acknowledges in his supplemental motion that under Rhines stay
and abeyance is for use when dismissing a mixed petition might
jeopardize the timeliness of a subsequent federal petition.
He
alleges in his supplemental motion that the federal “statute of
limitations has passed” in this case5 and that “dismissal of the
entire
petition
relief.”
and
would
impair”
his
“right
to
obtain
federal
Based on these bald statements he asks that if stay
abeyance
is
denied,
the
court
allow
him
to
delete
his
ineffective assistance of counsel claim.
Petitioner
has
alleged
no
facts
and
provided
no
dates
showing that dismissal of this petition, without prejudice, will
jeopardize
the
timeliness
federal habeas petition.
of
a
diligently-filed,
subsequent
Based on the procedural history of
petitioner’s state court proceedings,6 the court finds it more
5
In his pro se petition, Mr. Francis stated that his federal petition is
timely, based upon his allegation that the one-year limitation period was
tolled “from April 13, 2007” by his first state post-conviction proceedings.
6
For
purposes
of
the
motion
under
6
consideration,
the
court
is
not
likely that several months remain in the federal limitations
period, which was also tolled upon the filing of petitioner’s
second state post-conviction motion and remains tolled due to
pendency of those proceedings.
is
inappropriate
outright
here,
dismissal
where
could
The stay and abeyance procedure
it
has
not
jeopardize
been
the
petitioner’s collateral attack in federal court.
shown
that
timeliness
an
of
As the Supreme
required to and does not make specific findings regarding the statute of
limitations in this case.
Nevertheless, based upon its review of the
procedural history of petitioner’s cases, the court accepts respondents’
general allegation that petitioner has time remaining in the statute of
limitations and can re-file his federal habeas corpus petition after state
court remedies have been fully exhausted and rejects petitioner’s allegation
that the federal statute of limitations expired during the pendency of this
case.
The following tentative procedural history has been garnered from the
petition, court opinions on petitioner’s direct and collateral appeals, and
the available state court records. In 2003, Mr. Francis was convicted by a
jury of first-degree murder for a 1998 shooting incident. In February 2004,
he was sentenced to life in prison. He directly appealed, and his conviction
was affirmed on October 27, 2006. State v. Francis, 282 Kan. 120, 145 P.3d
48 (Kan. 2006). “In April 2007, Francis timely filed a pro se K.S.A. 60-1507
motion, arguing his trial counsel was ineffective” on five grounds.
See
Francis v. State, 206 P.3d 563, (Kan.App. May 8, 2009). The district court
summarily denied this motion without an evidentiary hearing, and Francis
appealed.
The KCA reversed and remanded with directions for the district
court to hold an evidentiary hearing.
Id. at *5.
On remand, Judge Davis
held a hearing and denied relief. Petitioner appealed, and the KCA affirmed
in October 2012. The KSC denied review on November 16, 2012.
Both parties acknowledge that petitioner presently has an appeal
pending before the KCA in Appellate Case No. 110310.
The Kansas Appellate
Courts on-line docket indicates this is an appeal of a decision on a 60-1507
motion filed by Mr. Francis in 2012, given the district court case number is
12CV9501. The motion was denied and Mr. Francis appealed the decision to the
KCA.
This collateral appeal was docketed in August 2013, counsel was
appointed, and petitioner has been granted time extensions to file briefs.
The statute of limitations for filing a federal habeas corpus petition
is one year.
28 U.S.C. § 2244(d)(1).
Petitioner’s direct appeal concluded
on October 26, 2006, and he did not file a Petition for Writ of Certiorari in
the U.S. Supreme Court. Under current legal precedent, his conviction became
“final” for § 2244 purposes on January 27, 2007, after the 90–day time limit
expired for filing a cert. petition.
The federal statute of limitations
began running on that date.
However, it was statutorily tolled on an
undisclosed day in April 2007, when Mr. Francis filed his first state postconviction motion.
It appears that the statute of limitations has been
tolled ever since, first during the pendency of the initial 60-1507
proceedings and now during the pendency of the second 60-1507 proceedings.
7
Court explained, stay and abeyance should “be available only in
limited
circumstances.”
In
this
case,
Mr.
Francis
filed
a
second state post-conviction motion, appealed its denial, and
then
filed
his
federal
habeas
collateral appeal concluded.
petition
before
the
state
This scenario is surely not among
the “limited circumstances” in which stay and abeyance should be
made available.
Nor is
this
court convinced
that Mr. Francis
has shown
“good cause” for his failure to exhaust state remedies before he
filed the instant
federal application.
A pro se
litigant’s
allegation that he failed to exhaust state court remedies due to
his unfamiliarity with legal process or lack of legal knowledge,
is not sufficient to
establish
“good cause”
under
equitable tolling or procedural default analysis.
either an
This court
can conceive of no reason and is presented with no authority for
holding that lack of legal knowledge satisfies the Rhines good
cause factor.
The
prejudice,
court
dismisses
because
it
is
the
mixed
instant
and
for
petition,
failure
to
without
exhaust.
Petitioner alleges that he has significant claims challenging
the same conviction and trial proceedings currently pending in
state
court,
futile.
desire
and
does
Furthermore,
to
include
not
contend
petitioner
those
claims
8
that
has
exhaustion
plainly
currently
being
would
indicated
litigated
be
his
in
state court in his application for federal habeas corpus review
and has not shown that dismissal of this action will prevent him
from filing a new petition in federal court after his state
court remedies have been fully exhausted.
IT IS THEREFORE ORDERED that petitioner’s Motion to Stay
Proceedings (Doc. 8) is denied.
IT
without
IS
FURTHER
prejudice,
ORDERED
because
that
the
this
action
petition
is
is
dismissed,
mixed
and
available state court remedies have not been exhausted.
IT IS SO ORDERED.
Dated this 28th day of January, 2014, at Topeka, Kansas.
s/Sam A. Crow
U. S. Senior District Judge
9
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