Curington v. Cain et al
Filing
20
ORDER & REASONS granting 17 Motion to Dismiss the Unexhausted Claims and refers the amended petition to the Magistrate Judge for a Report and Recommendation on the merits of petitioner's four remaining claims; denying 18 Motion to Stay. Signed by Chief Judge Sarah S. Vance on 12/15/2014. (NEF: Mag (4)) (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KERRY CURRINGTON
CIVIL ACTION
VERSUS
NO: 13-5258
N. BURL CAIN, WARDEN
SECTION: R(4)
ORDER AND REASONS
Before the Court is Kerry Currington's petition for federal
habeas corpus relief under 28 U.S.C. § 2254.
recommends
that
Currington's
prejudice
for
failure
response,
petitioner
to
does
petition
exhaust
not
be
state
dispute
The Magistrate Judge
dismissed
court
the
without
remedies.1
Magistrate
In
Judge's
conclusion that two of the six claims presented in his petition are
unexhausted.
Instead, petitioner moves the Court to dismiss the
unexhausted claims and stay these proceedings to allow petitioner
to litigate his unexhausted claims in state court.2
A federal habeas petition should typically be dismissed if the
petitioner has failed to exhaust all available state remedies.
Piller v. Ford, 542 U.S. 225, 227 (2004) ("[F]ederal district
courts
must
dismiss
'mixed'
habeas
corpus
petitions--those
containing both unexhausted and exhausted claims.") (citing Rose v.
Lundy, 455 U.S. 509 (1982)).
The dismissal without prejudice of a
"mixed" petition, however, may result in a subsequent petition
1
R. Doc. 15.
2
R. Docs. 17 and 18.
being barred by the one-year statute of limitations set forth in 28
U.S.C. § 2244(d).
See Duncan v. Walker, 533 U.S. 167, 181-82
(2001) (holding that Section 2244(d)'s one-year limitation period
is not tolled during the pendency of federal habeas proceedings).
In light of this dilemma, federal courts are authorized to stay a
habeas petition and hold it in abeyance while a petitioner exhausts
his claims in state court.
(2005).
Rhines v. Weber, 544 U.S. 269, 277
Such stays, however, are available only in limited
circumstances.
Id.
A district court should stay federal habeas
proceedings to allow a petitioner to exhaust state remedies only
when the district court finds that (1) the petitioner has good
cause for failure to exhaust his claim, (2) the claim is not
plainly meritless, and (3) the petitioner has not engaged in
intentional delay.
Schillereff v. Quarterman, 304 F. App'x 310,
314 (5th Cir. 2008) (citing Rhines, 544 U.S. at 277-78).
Here, petitioner concedes that he has failed to exhaust his
state court remedies as to two of the six claims raised in his
federal habeas petition.
The only explanation petitioner provides
for his failure to exhaust is that he is proceeding pro se.
A
petitioner's pro se status, however, does not constitute good cause
to excuse a failure to exhaust.
Thompson v. Tanner, CIV. A. No.
14-0924, 2014 WL 5325027, at *5 (E.D. La. Oct. 17, 2014) (citing
Bonilla
v.
Accordingly,
Hurley,
the
370
Court
F.3d
finds
494,
that
2
498
(6th
petitioner
Cir.
has
2004)).
failed
to
demonstrate good cause to excuse his failure to exhaust and,
therefore, that a stay and abeyance is unwarranted.
See Byrd v.
Thaler, No. 4:10-cv-021, 2010 WL 2228548, at *4 (N.D. Tex. June 3,
2010) (finding it unnecessary to address remaining Rhines factors
when petitioner fails to demonstrate good cause).
Nevertheless,
the
Court
recognizes
that
dismissing
the
petition without prejudice would effectively preclude federal
review of petitioner's exhausted claims, as any subsequent petition
would be barred by Section 2244(d)'s one-year limitations period.3
Under
these
circumstances,
a
district
court
should
allow
a
petitioner to withdraw the unexhausted claims and litigate the
exhausted claims properly before the court.
See Rhines, 544 U.S.
at 278 ("[I]f a petitioner presents a district court with a mixed
petition and the court determines that a 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 habeas relief.").
Accordingly, the
Court grants petitioner's motion to dismiss the unexhausted claims
and refers the amended petition to the Magistrate Judge for a
3
Petitioner filed his federal habeas petition on August 22,
2013. Thus, regardless of the amount of time that passed before
petitioner filed his petition, the one-year limitations period
for filing a subsequent petition has elapsed. See Duncan, 533
U.S. at 181-82 (Section 2244(d)'s one-year limitation period
continues to run during the pendency of federal habeas
proceedings).
3
Report and Recommendation on the merits of petitioner's exhausted
claims.
For the foregoing reasons, the Court DENIES petitioner's
motion to stay the proceedings.
The Court GRANTS petitioner's
motion to dismiss the unexhausted claims and refers the amended
petition to the Magistrate Judge for a Report and Recommendation on
the merits of petitioner's four remaining claims.
New Orleans, Louisiana, this _____ day of December, 2014.
15th
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
4
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