Harrell v. Cain et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS 17 . Signed by Chief Judge Sarah S. Vance on 9/21/12.(mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

KENTRELL HARRELL

CIVIL ACTION

VERSUS

NO: 11-0989

N. BURL CAIN, WARDEN

SECTION: R

ORDER
Kentrell Harrell filed this pro se and in forma pauperis
petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Having reviewed de novo the petition, the record, the
applicable law, the Magistrate Judge’s Report and Recommendation,
and petitioner’s objections thereto, the Court approves the
Report and adopts it as its opinion.
In his opposition to the Magistrate’s Report, petitioner
does not dispute the factual background or procedural history
outlined in the Report.1 Nor does petitioner dispute that he has
presented a mixed petition consisting of one exhausted claim
(claim one) and four unexhausted claims (claims two through
five).2 Instead, Harrell seeks to abandon two of the unexhausted
claims (claims two and four), and requests this Court to stay the

1

R. Doc. 18.

2

Id.

petition until he exhausts claims three and five in state court.3
See Rhines v. Webber, 544 U.S. 269 (2005). For the following
reasons this Court adopts the Magistrate’s conclusion that a stay
is inappropriate because there is “not good cause for the
petitioner’s failure to exhaust his claims first in state court.”
Id. at 277. Accordingly, the petition must be dismissed without
prejudice.
District courts have discretion to stay mixed petitions,
however, “stay and abeyance should be available only in limited
circumstances.” Rhines, 544 U.S. at 277. Frequent use of the stay
and abeyance procedure for federal habeas proceedings “has the
potential to undermine [AEDPA’s] twin purposes” of comity and
finality. Id.; Evans v. Cain, 577 F.3d 620, 623 (5th Cir. 2009).
A stay must be justified by good cause for petitioner’s failure
to exhaust state remedies. Rhines, 544 U.S. at 277. A stay is not
justified if it will “only result in further delay,” Evans, 577
F.3d at 623, or if “the unexhausted claims are plainly
meritless.” Rhines, 544 U.S. at 277. A stay may be justified,
however, if the petitioner “run[s] the risk of forever losing
[his] opportunity for any federal review of [his] unexhausted
claims.” Rhines, 544 U.S. at 269.

3

Id.
2

The Court finds that this is not one of the limited
circumstances warranting a stay under Rhines. Harrell did not
present the merits of his claims to each level of state court
before filing the instant petition.4 Instead, after applying for
review in the state district court, Harrell petitioned the
Louisiana Fourth Circuit for a writ of mandamus instructing the
state district court to rule on his petition.5 The Fourth Circuit
denied the writ and also reviewed Harrell’s claims sua suponte.6
From there, Harrell sought a supervisory writ of review in the
Louisiana Supreme Court only raising the issues of whether the
Fourth Circuit “erroneously denied his writ of mandamus and
exceeded its lawful jurisdiction in passing judgment upon the
merits of the post-conviction application.”7 Harrell did not
raise the merits of his claims in the Louisiana Supreme Court,
and the Supreme Court denied the application without stated
reasons.8
Harrell attributes his failure to raise the merits of each
claim at each level of the state courts to his own lack of
4

R. Doc. 17.

5

Id.

6

Id.

7

Id.

8

R. Doc. 17.
3

knowledge and has therefore not shown good cause. See Ellison v.
Rogers, 484 F.3d 658, 661 (3d Cir. 2007)(finding a stay
inappropriate where petitioner was not prejudiced from seeking
state collateral review but petitioner proceeded to federal court
before exhaustion); Lowery v. Cain, No. 11-2710, 2012 WL 777482,
at *5-6 (E.D. La. Feb. 16, 2012)(finding that failure to properly
present claims to Louisiana Supreme Court is not good cause under
Rhines), aff’d, 2012 WL 77461 (Mar. 5, 2012); cf. Williams v.
Cain, No. 08-4442, 2009 WL 1026138, at *7 (E.D. La. Apr. 15,
2009)(finding a stay appropriate when review of the petition was
delayed by Hurricane Katrina and failure to exhaust was “not due
to any error or lack of diligence on petitioner’s part”).
Moreover, the state and the Magistrate’s Report suggest that
Harrell’s remaining unexhausted claims are likely procedurally
defaulted in the state courts.9 Harrell did not object to this
aspect of the Report.10 If these claims are procedurally
defaulted a stay would be ineffective and inappropriate. Rhines,
544 U.S. at 277; Kinard v. Palakovich, No. 05-2804, 2006 WL
3366168, at * 21 (E.D. Pa. Nov. 16, 2006) (finding a stay
inappropriate where “proper exhaustion [is] impossible”).

9

R. Doc. 17.

10

R. Doc. 18.
4

Importantly, the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) period of limitations as provided in 28
U.S.C. § 2244(d)(1)(A) appears to have expired. Under that
statute, a federal habeas petitioner has a period of 1-year from
the date that the state judgment of conviction became final,
here, June 26, 2008, to file a federal petition.11 Petitioner’s
limitation period was tolled from August 15, 2008 until the
Louisiana Supreme Court denied him relief on October 1, 2010.12
28 U.S.C. § 2244(d)(2). Because Harrell had expended 51 days of
his 365 he had 314 days left, until August 11, 2011, to file his
federal petition.13 Harrell timely filed this federal petition on
April 12, 2011, but may not rely on the pendency of his federal
habeas corpus petition to toll the AEDPA limitations period.
Rhines, 544 U.S. at 274-75 (“Although the limitations period is
tolled during the pendency of a properly filed application for
State post-conviction or other collateral review . . . the filing
of a petition for habeas corpus in federal court does not toll
the statute of limitations.”)(citation omitted); Manning v.
Warden, Claiborne Parish Det. Ctr., No. 3:11-cv-0543, 2011 WL
4591870, at *7-9 (E.D. La. Aug. 5, 2011), aff’d, 2011 WL 4574839
11

R. Doc. 14.

12

R. Doc. 14.

13

R. Doc. 14.
5

(Sept. 30, 2012). Therefore, while petitioner might be able to
return to the Louisiana courts in order to exhaust his claims (if
they are not procedurally defaulted), his second petition for
habeas corpus “may well be dismissed as time-barred” unless
petitioner successfully argues the benefits of statutory or
equitable tolling. Manning, 2011 WL 4591870, at *8.
Accordingly, Harrell’s mixed petition will be dismissed
without prejudice to allow him to pursue complete exhaustion
unless he chooses to dismiss all of the unexhausted claims and
proceed only on the exhausted claim. See Rhines, 544 U.S. at 278
(“[I]f a petitioner presents a district court with a mixed
petition and 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.”); Pliler v. Ford,
542 U.S. 225, 230-23 (2004); Doughty v. Louisiana, No. 11-1279,
2012 WL 1100640, at *1 (E.D. La. Apr. 2, 2012).

New Orleans, Louisiana, this 21st day of September, 2012.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

6