Bigham v. Patton

Filing 11

OPINION AND ORDER by Judge Ronald A. White : Granting 7 {10] Motion to Dismiss. (case terminated) ; Denying 1 Petition for Writ of Habeas Corpus (2241/2254) (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA

STEVEN WADE BIGHAM,
Petitioner,
v.
ROBERT PATTON, DOC Director,
Respondent.

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Case No. 14-539-RAW-KEW

OPINION AND ORDER
On January 14, 2015, the court found that petitioner had filed a mixed habeas corpus
petition and denied his motion to hold the action in abeyance, because he had not shown
good cause for his one-year delay in initiating a post-conviction action. (Dkt. 9). He was
directed to advise the court whether he intended to (1) dismiss this action without prejudice,
(2) dismiss his unexhausted claims, or (3) continue the case with both exhausted and
unexhausted claims. He has filed a motion to dismiss the petition without prejudice, but he
still argues the court should hold this action in abeyance while he completes his postconviction proceedings. (Dkt. 10).
According to petitioner, he delayed the filing of his post-conviction application based
on advice from an attorney with The Innocence Project. The attorney allegedly told him that
if he filed anything in his case, the investigation of his conviction would cease. Petitioner
subsequently learned from other inmates that he could lose his right to file a federal habeas
corpus action if he delayed. He was unaware of the exhaustion requirement and believed he
was raising only the claims he had raised on direct appeal. He now concedes that his habeas

petition includes unexhausted claims.
While a district court has discretion to stay a mixed habeas petition to allow the
petitioner to present his unexhausted claims to the state court, the petitioner must
demonstrate that: (1) good cause exists for his failure to exhaust his claims in the state
courts, (2) his unexhausted claims are potentially meritorious, and (3) he has not engaged in
intentionally dilatory litigation tactics. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). As
discussed in the court’s earlier order, however, petitioner has failed to show good cause for
his delay in exhaustion.
[S]tay and abeyance should be available only in limited circumstances.
Because granting a stay effectively excuses a petitioner’s failure to present his
claims first to the state courts, stay and abeyance is only appropriate when the
district court determines there was good cause for the petitioner’s failure to
exhaust his claims first in state court.
Rhines, 544 U.S. at 277.
After careful review, the court finds that neither the alleged advice from the
Innocence Project attorney, nor petitioner’s ignorance of the rules of law, constitutes good
cause that would justify stay and abeyance.
ACCORDINGLY, petitioner’s re-urged request to hold this action in abeyance is
DENIED, and his motion to dismiss this action without prejudice to refiling (Dkt. 10) is
GRANTED.
IT IS SO ORDERED this 20th day of April 2015.
Dated this 20th day of April, 2015.

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