Frazier v. Smith et al

Filing 18

ORDER denying 16 MOTION to Stay and Abey. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 7/29/2016. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MYRON LAMAR FRAZIER

CIVIL ACTION

VERSUS
WARDEN JOHN SMITH

NO. 14-756-JJB-RLB
consolidated with:

MYRON LAMAR FRAZIER

CIVIL ACTION

VERSUS
WARDEN JOHN SMITH

NO. 14-787-JJB-RLB
ORDER

Before the Court is the petitioner’s Motion to Stay and Abey (R. Doc. 16). On May 23
2016, the Magistrate Judge issued a Report and Recommendation (R. Doc. 13) recommending
that the petitioner’s Petitions for Writ of Habeas Corpus be dismissed, without prejudice, for
failure to exhaust state court remedies. The petitioner then filed his Motion to Stay and Abey,
and this matter was referred back to the Magistrate Judge for consideration of said Motion. See
R. Doc. 17.
The petitioner asserts that he failed to exhaust his state court remedies because he
misunderstood a notice sent to him by the Louisiana Appellate Project stating that they “did not
carry over his appeal into the Louisiana Supreme Court.” The plaintiff alleges that he
understood the notice to mean that his next step was to file in the federal court. Relying upon
Rhines v. Webber, 544 U.S. 269 (2005), the plaintiff asks this Court to stay the proceedings
herein until the plaintiff has exhausted his state court remedies.

One of the threshold requirements for a § 2254 petition is that, subject to certain
exceptions, the petitioner must have first exhausted in state court all of his claims before
presenting them to the district court. 28 U.S.C. § 2254(b)(1) (“An application for a writ of
habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that ... the applicant has exhausted the remedies available in the
courts of the State....”) The Supreme Court has interpreted § 2254(b)(1) to require dismissal of a
habeas corpus petition if it contained even a single unexhausted claim – the “total exhaustion”
requirement. Rose v. Lundy, 455 U.S. 509, 518–19 (1982).
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court created an exception to
Lundy for mixed petitions. The Supreme Court held that a district court may stay a mixed
petition rather than dismiss it, holding the petition in abeyance while the petitioner seeks
exhaustion of any unexhausted claims in state court. Id. However, the Court feared that liberal
use of this stay-and-abeyance procedure might undermine the Antiterrorism and Effective Death
Penalty Act's twin purposes of encouraging the swift execution of criminal judgments and
favoring the resolution of habeas claims in state court, if possible, before resorting to federal
review. Id. at 276–78. Therefore, Rhines mandated that a district court should grant a stay and
abeyance only in limited circumstances where: (1) the petitioner had good cause for his failure to
exhaust his claims first in state court, (2) his unexhausted claims are potentially meritorious, and
(3) there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id.
However, a stay is not appropriate where, as here, the petitioner has failed to exhaust any
of his claims. See, e.g. Tappin v. United States Dist. Ct., No. 1-05-CV-00190-TAG, 2008 WL
686555 at *8 (E.D. Cal. Mar.11, 2008) (holding that federal court must dismiss a completely
unexhausted habeas petition); Dollar v. Rogers, No. 05-5594(RBK), 2007 WL 2990663 at *11

(D. N.J. Oct.9, 2007) (holding that Rhines is not directly applicable where federal writ is not a
“mixed petition” and none of petitioner's claims are properly exhausted); Baldonado v. Elliott,
No. CV-05-3136-PHX-SMM, 2006 WL 1698138 at *7 (D. Ariz. Jun.15, 2006) (stay not
appropriate because petitioner did not exhaust any claims and “there are no claims for the Court
to hold in abeyance”).
Furthermore, even if the petitions were “mixed” petitions, presenting both exhausted and
unexhausted claims, the petitioner’s confusion does not constitute good cause for his failure to
exhaust state court remedies. Accordingly,
IT IS ORDERED that the petitioner’s Motion to Stay and Abey (R. Doc. 16) be and is
hereby DENIED.
Signed in Baton Rouge, Louisiana, on July 29, 2016.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE