Bigham v. Patton

Filing 9

OPINION AND ORDER by Judge Ronald A. White : Denying 6 Motion to hold this action in abeyabce. The petiitoner is directed to advise the court of his intenetions for proceeding in this case within 14 days. (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
This matter is before the court on the petitioner’s motion to hold the action in
abeyance until he can exhaust the state court remedies for unexhausted claims in his petition
challenging his conviction in McIntosh County District Court Case No. 2011-052. He claims
this request should be granted because he is a pro se litigant, and he has limited access to the
prison law library.
“A threshold question that must be addressed in every habeas case is that of
exhaustion.” Harris v. Champion, 15 F.3d 1538, 1554 (10th Cir. 1994). The court must
dismiss a state prisoner’s habeas petition if he has not exhausted the available state court
remedies as to his federal claims. See Coleman v. Thompson, 501 U.S. 722, 731 (1991). In
federal habeas corpus actions, the petitioner bears the burden of showing he has exhausted
his state court remedies as required by 28 U.S.C. § 2254(b). See Clonce v. Presley, 640 F.2d
271, 273 (10th Cir. 1981); Bond v. Oklahoma, 546 F.2d 1369, 1377 (10th Cir. 1976). To
satisfy the exhaustion requirement, a claim must be presented to the State’s highest court
through a direct appeal or a post-conviction proceeding. Dever v. Kansas State Penitentiary,

36 F.3d 1531, 1534 (10th Cir. 1994). Under the doctrine of comity, a federal court should
defer action on claims properly within its jurisdiction, until a state court with concurrent
power has had an opportunity to consider the matter. Rose v. Lundy, 455 U.S. 509, 518-19
(1982).
A district court has two options when faced with a “mixed” petition containing both
exhausted and unexhausted claims. One option is to require the petitioner to exhaust all his
claims in state court before bringing the petition. See Rose v. Lundy, 455 U.S. 509, 510
(1982) (instructing a district court to dismiss without prejudice and allow the petitioner to
refile once the claims are exhausted); Rhines v. Weber, 544 U.S. 269, 277 (2005) (if a court
is concerned about the prisoner’s meeting the one-year filing requirement of 28 U.S.C. §
2244(d), and if “there was good cause for the petitioner’s failure to exhaust his claims first
in state court,” the court can decline to dismiss the matter and issue a stay and abeyance of
the petition, while the petitioner exhausts his state court remedies). The second option is to
deny the entire petition on the merits, notwithstanding failure to exhaust, if the court is
convinced the unexhausted claim is without merit, or that the issue is easily resolvable
against the petitioner. See 28 U.S.C. § 2254(b)(2).
After careful review, the court finds a stay and abeyance is not warranted, because
petitioner has not shown good cause for his one-year delay in filing an application for postconviction relief in the state district court.1 His options for proceeding with this action,
therefore, are to (1) dismiss the action without prejudice in its entirety with the understanding

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According to the Oklahoma State Courts Network at www.oscn.net, petitioner filed a postconviction application in the McInstosh District Court on January 8, 2015, one year after his direct appeal
was decided in Bigham v. State, No. F-2012-997 (McIntosh County Dist. Ct. Jan. 8, 2014).

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that a second habeas petition could be barred by the statute of limitations, (2) dismiss his
unexhausted claims and continue with his exhausted claims, or (3) continue this case with
all claims, with the knowledge that the court will dismiss this action for failure to exhaust all
state court remedies.
Petitioner is granted fourteen (14) days to advise the court of the direction he intends
to follow by filing one of the following: (1) a motion to dismiss this action in its entirety
without prejudice, (2) a motion to dismiss his unexhausted claims, or (3) a notice that he
intends to continue the petition with both exhausted and unexhausted claims. Failure to
respond as directed by the court in this order will result in dismissal of this entire action.
ACCORDINGLY, petitioner’s motion to hold this action in abeyance (Docket No.
6) is DENIED, and petitioner is directed to advise the court of his intentions for proceeding
in this case within fourteen (14) days, by filing an appropriate pleading as directed by the
court.
IT IS SO ORDERED this 21st day of January 2015.

Dated this 21 st day of January, 2015.

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