Phillips v. Louisiana State Penitentiary

Filing 10

ORDER denying 9 Motion to Stay without prejudice to re-filing upon an adequate showing of good cause; any additional Motion to Stay shall be filed no later than March 19, 2009. Signed by Magistrate Judge C Michael Hill on 03/05/09. (crt,Delgado, S)

U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA L A F A Y E T T E DIVISION T H E O D O R E PHILLIPS V S. B U R L CAIN, WARDEN C I V I L ACTION NO. 08-1600 S E C T IO N P C H I E F JUDGE HAIK M A G I S T R A T E JUDGE HILL M E M O R A N D U M ORDER B e f o re the court is the Motion to "Stay and Abeyance" filed by pro se petitioner T h e o d o re Phillips in connection with his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 on October 20, 2008. [rec. doc. 9]. By this Motion, petitioner re q u e sts that his federal petition be stayed and held in abeyance while he exhausts a d d itio n a l claims in the Louisiana state courts, presumably so that he may fully exhaust thes e issues before requesting that this court review the issues by amended petition. More sp e c if ica lly, he seeks to stay and abey this federal proceeding while he exhausts a d d itio n a l claims raised in a pending state post-conviction proceeding wherein, as a result o f an October 17, 2008 hearing, petitioner has been granted leave to file supplemental c la im s for post-conviction relief, and while he seeks state appellate review of adverse ru lin g s of the trial court rendered on January 27, 2009 and February 18, 2009 in c o n n e ctio n with contradictory hearings on claims raising Brady violations. Other than

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g e n e ra lly alleging Brady, petitioner does not disclose the factual or legal basis of the p e n d in g additional claims. Moreover, petitioner does not provide any reason as to why h e failed to previously exhaust these unidentified claims in state court. In the context of "mixed" petitions, the Supreme Court has addressed a district co u rt's authority to grant stays in habeas cases pending exhaustion of state court r e m e d i e s.1 Rhines v. Weber, 544 U.S. --, 125 S.Ct. 1528 (2005). In Rhines, the Court h e ld that "[b]ecause granting a stay effectively excuses a petitioner's failure to present h is claims first to the state courts . . .", district courts may stay and hold in abeyance h a b e a s petitions only in limited circumstances. Rhines, 125 S.Ct. at 1535. See also N e v ille v. Dretke, 423 F.3d 474, 479 (5 th Cir. 2005). Accordingly, stay and abeyance is o n ly appropriate when there is "good cause" for the petitioner's failure to exhaust his c la im s in state court prior to proceeding in federal court. Id. Moreover, even if there is " g o o d cause" for that failure, stay and abeyance is only appropriate when the u n e x h a u ste d claim is not "plainly meritless." Id. In the instant Motion, petitioner has failed to establish the criteria for the grant of a s ta y as set forth in Rhines. Petitioner suggests that there are additional issues which may e n title him to federal habeas relief, and accordingly asks this court to stay his pending

The undersigned acknowledges that because petitioner does not seek to amend his unexhausted claims at th is time, the instant petition is not technically a "mixed" petition. However, this court has applied the Rhine criteria u n d e r identical circumstances. Thomas v. Warden, 6:05-cv-1214, 2006 W L 418628, *2, 2006 W L 220838, *1 (W .D .L a . 1-27-06 and 2-17-06) citing McFadden v. Senkowski, 2005 W L 2000163 (W.D.N.Y. 2005) and Faden v. A n n e t t s, 2005 W L 1765714 (S.D.N.Y. 2005). Given the absence of contrary authority, the undersigned finds Rhine a p p l i c a b l e herein.

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p e titio n to allow him to complete review of these claims in state court, presumably to c o m p ly with this court's complete exhaustion requirement. Petitioner offers no ju s tif ic a tio n as to why he did not previously exhaust his unidentified claims, nor does p e titio n e r provide any factual or legal support for his newly discovered unidentified c la im s . Thus, there is nothing in the Motion which would enable this court to make the p re lim in a ry determination required by Rhines, namely whether or not there is good cause fo r petitioner's failure to previously exhaust his claims, and whether or not the claims are " p la in ly meritless." Moreover, given that it appears that the federal one-year limitation period for se e k in g federal habeas corpus relief set forth at 28 U.S.C. § 2244(d) has not expired 2 , it d o e s not appear that staying and holding the instant petition in abeyance would be p ro c e d u ra lly proper as petitioner may simply dismiss the instant petition without p re ju d ice , and re-file same immediately after he fully exhausts all claims he wishes to p re se n t to this court. See Reyer v. King, 2008 WL 625096, *3 (S.D.Miss. 2008) ( d is m is s in g a petition for failure to exhaust noting that the "limited circumstances" ju stif yin g stay and abeyance were not present because the petitioner "has ample time to
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Under federal law, petitioner's conviction became final for purposes of the one year limitation period on A p r il 12, 2007, when the time for seeking direct review in the United States Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A); Ott v. Johnson, 192 F.3d 510 (5 th Cir. 1999); See also Clay v. United States, 123 S.Ct. 1072, 1077 a t fn. 3 (2003); Supreme Court Rule 13. The record before this court reveals that with the exception of two months ( A u g u s t 22, 2008 - the date the Louisiana Supreme Court denied petitioner's initial post-conviction applicationth r o u g h October 18, 2008-the date the trial court granted leave for petitioner to file supplemental post-conviction c la im s ) , petitioner has had state post-conviction proceedings pending in the Louisiana state courts from April 13, 2 0 0 7 (the date he initially filed an application or post-conviction relief) through the present date (petitioner alleges h e re in that his supplemental post-conviction claims are pending review in the state courts). Thus, with the benefit of s t a t u t o r y tolling, it appears that the one year has not passed. See 28 U.S.C. § 2244(d)(2).

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return to state court, exhaust his claim, and file a habeas petition before the limitations p eriod for the . . . claim expires."). F o r the above reasons, the Motion to Stay and Abey [rec. doc. 9] filed by pro se p e t itio n e r Theodore Phillips is DENIED without prejudice to re-filing upon an adequate s h o w in g pursuant to Rhines v. Weber that there is good cause for petitioner's failure to e x h a u s t his additional claims for relief, and that these claims are not plainly meritless. Any additional Motion to Stay these proceedings shall be filed no later than M a r c h 19, 2009. No extensions will be granted and any Motion for a Stay filed after that d a te will be denied. S ig n e d this 5 th day of March, 2009, at Lafayette, Louisiana.