Cobb v. Rios

Filing 19

OPINION AND ORDER by Judge Ronald A. White: Petitioner's motion to hold this action in abeyance pending state exhaustion 15 is DENIED, and this action is, in all respects, DISMISSED WITHOUT PREJUDICE. All remaining pending motion are DENIED as moot 7 17 . (case terminated) (acg, Deputy Clerk)

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

ZACHARY DEAN COBB,
Petitioner,
v.
JOE M. ALLBAUGH, DOC Director,
Respondent.

)
)
)
)
)
)
)
)
)

No. CIV 17-116-RAW-KEW

OPINION AND ORDER
On February 7, 2017, Petitioner, a prisoner appearing through counsel, filed this
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1). He is challenging
his conviction in Wagoner County District Court Case No. CF-2012-244 for Child Abuse by
Injury.
After the Court directed Respondent to show cause why the writ should not issue (Dkt.
12), Petitioner filed a motion to hold this action in abeyance, pending exhaustion of state
court remedies (Dkt. 15). Petitioner admits that the petition includes unexhausted claims, but
alleges the petition was filed because of counsel’s concern over satisfying the one-year
limitation period imposed by 28 U.S.C. § 2244(d)(1)(A). Respondent opposes Petitioner’s
motion to hold the petition in abeyance, asserting Petitioner has sufficient time remaining in
his one-year limitation period in which to file a new habeas corpus petition after his state
court proceedings conclude (Dkt. 16).
The record shows that Petitioner’s conviction became final on May 11, 2016, ninety
days after the Oklahoma Court of Criminal Appeals affirmed his conviction on direct appeal

in Cobb v. State, No. F-2014 (Okla. Crim. App. Feb. 10, 2016). See Fleming v. Evans, 481
F.3d 1249, 1257-58 (10th Cir. 2007); Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. Jan.
31, 2001) (holding that a conviction becomes final for habeas purposes when the 90-day
period for filing a petition for a writ of certiorari to the United States Supreme Court has
passed).
The statutory year began to run the next day on May 12, 2016, and it expired on May
12, 2017. See Harris v. Dinwiddie, 642 F.3d 902, 907 n.6 (10th Cir. 2011) (stating that the
year begins to run the day after the judgment and sentence becomes final and ends on the
anniversary date). Therefore, when Petitioner filed his application for post-conviction relief
on February 14, 2017, he had 87 days remaining on the one-year limitation period. Pursuant
to 28 U.S.C. § 2244(d)(2), the statute of limitations is tolled while a properly-filed
application for post-conviction relief or other collateral review of the judgment at issue is
pending.
[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 v. Weber, 544 U.S. 269, 277 (2005) .
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

2

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 Petitioner has not shown good cause for his
failure to exhaust his claims before filing the petition. Therefore, this action must be
dismissed without prejudice for failure to exhaust state court remedies.
ACCORDINGLY, Petitioner’s motion to hold this action in abeyance pending state
exhaustion (Dkt. 15) is DENIED, and this action is, in all respects, DISMISSED WITHOUT
PREJUDICE. All remaining pending motions are DENIED as moot.
IT IS SO ORDERED this 7th day of August 2017.

3