Bingley v. McCollum
Filing
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OPINION AND ORDER by District Judge James H. Payne : Petitioner's motion to hold this action in abeyance is DENIED 3 . Petitioner is directed to advise the court within 14 days of his intentions for proceeding in this case. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JEFFERY DALE BINGLEY,
Petitioner,
v.
TRACY McCOLLUM, Warden,
Respondent.
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Case No. CIV 16-439-JHP-KEW
OPINION AND ORDER
Petitioner, a pro se prisoner incarcerated at North Fork Correctional Center in Sayre,
Oklahoma, filed this petition for a writ of habeas corpus, challenging his convictions and
sentences in LeFlore County District Court Case No. CF-2010-21 for Child Sexual Abuse
(Count 1) and Possession of Child Pornography (Count 2). He also filed a motion for
temporary administrative closure and/or stay of proceedings upon the initial filing of the
petition (Dkt. 3), which the Court construes as a motion for stay and abeyance of the petition.
Petitioner is asking for this relief because he claims that after the Oklahoma Court of
Criminal Appeals decides his pending post-conviction appeal, he will have only four days
remaining on the one-year statute of limitations to file a second habeas petition.
“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 claims are without merit, or that the issues are 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 almost one-year delay in filing an application for
post-conviction relief in the state district court. His options for proceeding with this action,
therefore, are to (1) dismiss the action without prejudice in its entirety with the understanding
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
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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.
3) is DENIED, and Petitioner is directed to advise the Court within fourteen (14) days of his
intentions for proceeding in this case, by filing an appropriate pleading as directed by the
Court.
IT IS SO ORDERED this 25th day of October 2016.
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