Dietrich v. Cain
ORDER denying 2 Motion to Hold Habeas Corpus Petition in Abeyance. Signed by Magistrate Judge Richard L. Bourgeois, Jr. on 2/14/2018. (EDC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
BRIAN DIETRICH (#125055)
Before the Court is the petitioner’s Motion to Hold Habeas Corpus Petition in Abeyance
(R. Doc. 2). According to the Petition (R. Doc. 1), the petitioner was convicted of second degree
murder in 1988. Review was sought in the appellate courts, and the Louisiana Supreme Court
denied the petitioner’s writ application on November 9, 1990. On April 16, 1999, the petitioner
filed his first application for post-conviction relief which was denied as untimely. On July 7,
2013, the petitioner filed a second application for post-conviction relief. The application was
supplemented on May 26, 2015, and in response to the State’s answer, the petitioner filed a
Reply to which three exhibits were attached. The petitioner’s second PCR application was
denied by the trial court on October 18, 2016. The petitioner’s writ application is currently
pending before the Louisiana Supreme Court. The petitioner asserts that due to the unusual
procedural posture of his case, the only means to secure his right to federal review of his
conviction and sentence is if this Court issues an order holding his federal habeas corpus petition
in abeyance until the conclusion of his state post-conviction proceedings.
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. June 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 petition was a “mixed” petition, presenting both exhausted and
unexhausted claims, the petitioner’s has not cited any reason which would constitute good cause
for his failure to exhaust state court remedies. Accordingly,
IT IS ORDERED that the petitioner’s Motion to Hold Habeas Corpus Petition in
Abeyance (R. Doc. 2) be and is hereby DENIED.
Signed in Baton Rouge, Louisiana, on February 14, 2018.
RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE
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