Rhines v. Weber
Filing
272
ORDER denying 265 Motion to hold proceedings in abeyance. Signed by U.S. District Judge Karen E. Schreier on 8/5/2015. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES RUSSELL RHINES,
5:00-CV-05020-KES
Petitioner,
ORDER DENYING MOTION FOR
ABEYANCE
vs.
DARIN YOUNG, Warden, South Dakota
State Penitentiary;
Respondent.
Petitioner, Charles Rhines, moves the court for an order staying this
proceeding. Darin Young, respondent, resists the motion. For the following
reasons, the court denies the motion.
PROCEDURAL HISTORY
Rhines was convicted of premeditated first-degree murder and thirddegree burglary. On January 26, 1993, a jury sentenced him to death by lethal
injection. Rhines appealed his conviction and sentence to the South Dakota
Supreme Court. Fourteen issues were raised on direct appeal, including the
excusal of prospective juror Diane Staeffler, the state’s use of its peremptory
challenges, the use of victim impact testimony, and the proportionality review.
The South Dakota Supreme Court affirmed petitioner’s conviction and sentence
and the United States Supreme Court denied further review on December 2,
1996.
Rhines then applied for a writ of habeas corpus in state court on
December 5, 1996. In his state habeas, Rhines raised numerous issues,
including ineffective assistance of counsel, the excusal for cause of prospective
juror Diane Staeffler, and the constitutionality of the South Dakota capital
punishment statutes. Rhines’s state habeas was denied by the trial court on
October 8, 1998. The South Dakota Supreme Court affirmed the denial on
February 9, 2000.
On February 22, 2000, Rhines filed a federal petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. An amended petition for writ of habeas
corpus was filed on November 20, 2000, which alleged thirteen grounds for
relief. Respondent alleged that several of the grounds had not been exhausted
and were, therefore, procedurally defaulted. On July 3, 2002, this court found
that petitioner’s grounds for relief Two(B), Six(E), Nine(B), (H), (I), and (J),
Twelve, and Thirteen were unexhausted. This court stayed the petition pending
exhaustion of Rhines’s state court remedies on the condition that Rhines file a
petition for habeas review in state court within 60 days and return to federal
court within 60 days of completing the state proceedings. The state appealed.
On direct appeal, the Eighth Circuit Court of Appeals vacated the stay
and remanded the case so this court could determine whether Rhines could
proceed by dismissing the unexhausted claims from his petition. Rhines v.
Weber, 346 F.3d 799 (8th Cir. 2003). Rhines filed a petition for certiorari with
the United States Supreme Court. The United States Supreme Court granted
certiorari to determine whether a district court may issue an order of stay and
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abeyance in a mixed petition for habeas corpus, that is, a petition containing
exhausted and unexhausted claims. Rhines v. Weber, 544 U.S. 269 (2005). The
Court held that stay and abeyance is permissible under some circumstances.
Id., 544 U.S. at 277. The Court remanded the case to the Eighth Circuit Court
of Appeals so it could determine whether this court abused its discretion in
granting the stay. Id. at 279. The Court specifically stated that “once the
petitioner exhausts his state remedies, the district court will lift the stay and
allow the petitioner to proceed in federal court.” Id. at 275-76 (emphasis
added).
Because this court did not have the benefit of the controlling Supreme
Court authority when it issued the order of stay and abeyance in 2002, the
Eighth Circuit Court of Appeals remanded the case to this court to analyze the
petition for writ of habeas corpus under the new test enunciated in Rhines.
Rhines v. Weber, 409 F.3d 982, 983 (8th Cir. 2005). This court was directed to
analyze each unexhausted claim to: (1) determine whether Rhines had good
cause for his failure to exhaust the claims in state court, (2) determine whether
the claims were plainly meritless, and (3) consider whether Rhines had engaged
in abusive litigation tactics or intentional delay. Id. (citing Rhines, 544 U.S. at
277-28). On December 19, 2005, this court found that Rhines had good cause
for failing to exhaust the claims, the claims were not plainly meritless, and
Rhines had not engaged in abusive litigation tactics. Docket 150. The court
ordered that Rhines’s petition for habeas corpus was stayed pending
exhaustion in state court. Id.
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On December 21, 2005, Rhines returned to state court to exhaust his
claims. On February 27, 2013, the Circuit Court for the Seventh Judicial
Circuit of South Dakota entered judgment in favor of respondent on all of
Rhines’s claims. Rhines timely requested a Certificate of Appealability from
both the state Circuit Court and the Supreme Court of South Dakota, the latter
of which was denied on July 17, 2013. In early October of 2013, Rhines filed a
petition for certiorari with the United States Supreme Court, which the Court
denied on January 21, 2014. Docket 223. On February 4, 2014, this court
lifted the stay on Rhines’s federal habeas corpus proceeding. Docket 224.
Rhines now seeks another stay for a minimum of 180 days. Docket 265.
DISCUSSION
The decision to stay a proceeding is entrusted to a district court’s sound
discretion. Ryan v. Gonzales, 133 S. Ct. 696, 708 (2013); see also Landis v. N.
Am. Co., 299 U.S. 163, 166 (1936) (“. . . the power to stay proceedings is
incidental to the power inherent in every court to control the disposition of the
causes on its docket with economy of time and effort for itself, for counsel, and
for litigants.”). The Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) does not deprive courts of that authority, although the court’s
decision to exercise it should be compatible with the objectives of AEDPA.
Rhines, 544 U.S. at 276 (noting two purposes of the Act are ensuring finality
and streamlining federal habeas proceedings).1 “The proponent of a stay bears
The precise holding in Rhines applicable to staying mixed habeas
petitions does not apply to Rhines’s present motion because Rhines makes no
1
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the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 708 (1997).
Rhines seeks an order staying this proceeding for a minimum of 180 days to
investigate new ineffective assistance of trial counsel claims based upon the
Supreme Court’s decision in Martinez v. Ryan, 132 S. Ct. 1309 (2012).
Anticipating the discovery of those additional claims, Rhines also requests
permission to file a second amended habeas corpus petition.
Because the Supreme Court’s Martinez opinion is intertwined with the
doctrine of procedural default, a brief discussion of that doctrine is necessary.
Before seeking federal relief under 28 U.S.C. § 2254, a petitioner must “fairly
present” the claim to the state courts. Murphy v. King, 652 F.3d 845, 848 (8th
Cir. 2011) (citing Baldwin v. Reese, 541 U.S. 27, 29 (2004); 28 U.S.C.
§ 2254(b)(1) (“An application for a writ of habeas corpus . . . shall not be
granted unless it appears that the applicant has exhausted the remedies
available in the courts of the State.”). As a rule, a federal court “will not review
a question of federal law decided by a state court if the decision of that court
rests on a state law ground that is independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729
(1991). This rule also serves as a bar to claims raised in federal habeas
petitions “when a state court declined to address a prisoner’s federal claims
because the prisoner had failed to meet a state procedural requirement.” Id. at
729-730. The requirement that prisoners first exhaust their claims in state
court “protect[s] the state courts’ role in the enforcement of federal law and
showing that his federal habeas petition once again asserts non-exhausted
state claims.
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prevent[s] disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S.
509, 518 (1982). “[A] habeas petitioner who has failed to meet the State’s
procedural requirements for presenting his federal claims has deprived the
state courts of an opportunity to address those claims in the first instance.”
Coleman, 501 U.S. 732. “The bar to federal review may be lifted, however, if the
prisoner can demonstrate cause for the procedural default in state court and
actual prejudice as a result of the alleged violation of federal law.” Maples v.
Thomas, 132 S. Ct. 912, 922 (2012) (quotations omitted).
In Coleman, 501 U.S. at 752, the Supreme Court observed that “[t]here is
no constitutional right to an attorney in a state post-conviction proceeding.” As
a consequence, “a petitioner cannot claim constitutionally ineffective assistance
of counsel in such proceedings.” Id. And “it is the petitioner who must bear the
burden of [habeas counsel’s] failure to follow state procedural rules.” Id. at 754.
Thus, a petitioner cannot assert the ineffectiveness of habeas counsel as a
cause to excuse a procedurally defaulted claim. Id. at 757.
The Supreme Court’s Martinez opinion created a “narrow exception” that
“modif[ies] the unqualified statement in Coleman that an attorney’s ignorance
or inadvertence in a postconviction proceeding does not qualify as cause to
excuse a procedural default.” Martinez, 132 S. Ct. at 1315. Specifically, the
Court held that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim
of ineffective assistance at trial.” Id. The Court recognized that,
[T]he initial-review collateral proceeding is the first designated
proceeding for a prisoner to raise a claim of ineffective assistance
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at trial, [thus] the collateral proceeding is in many ways the
equivalent of a prisoner’s direct appeal to the ineffective-assistance
claim. . . . When an attorney errs in initial-review collateral
proceedings, it is likely that no state court at any level will hear the
prisoner’s claim. . . . And if counsel’s errors in an initial-review
collateral proceeding do not establish cause to excuse the
procedural default in a federal habeas proceeding, no court will
review the prisoner’s claims.
Id. at 1316-17. As a solution to that problem, the narrow exception announced
in Martinez is met when “(1) the ineffective-assistance claim was a ‘substantial’
claim;2 (2) the ‘cause’ consisted of there being ‘no counsel’ or only ‘ineffective’
counsel during the collateral review proceeding; and (3) the state collateral
review proceeding was the ‘initial’ review proceeding with respect to the
‘ineffective-assistance-of-counsel claim.’ ” Dansby v. Hobbs, 766 F.3d 809, 834
(8th Cir. 2014) (quoting Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013)). The
Court reiterated the narrowness of its holding, however, and cautioned that the
nature of its decision was purely equitable rather than constitutional. Martinez,
132 S. Ct. at 1319 (noting several “differences between a constitutional ruling
and the equitable ruling of this case.”).
Rhines, unlike the petitioner in Martinez, is not asserting for the first
time in federal habeas a substantial ineffective assistance of trial counsel claim
that has been procedurally barred due to the ineffective assistance of state
habeas counsel. To the contrary, Rhines has not identified any such claims at
all. Rather, Rhines contemplates that such claims may yet be discovered and
brought at a later date, thus justifying a stay of this proceeding.
A “substantial” ineffective assistance claim is said to be one that has
“some merit.” Martinez, 132 S. Ct. at 1318.
2
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Rhines principally relies on caselaw from the Fourth Circuit in support of
his position. In Gray v. Pearson, 526 Fed Appx. 331, 332 (4th Cir. 2013), the
petitioner was represented by the same counsel in both his state and federal
habeas proceedings. The Fourth Circuit noted that the state habeas proceeding
was Gray’s initial-review collateral proceeding. Id. at 334. Relying on Martinez,
the petitioner argued that independent counsel should be appointed to review
and present any ineffective assistance of trial counsel claims overlooked by his
state habeas counsel. Id. at 332. The court agreed, noting “a clear conflict of
interest exists in requiring Gray’s [federal habeas] counsel to identify and
investigate potential errors that they themselves may have made in failing to
uncover ineffectiveness of trial counsel while they represented Gray in his state
post-conviction proceedings[.]” Id. at 334. Thus, the court remanded so that
independent counsel could be appointed.
Although Gray was an unpublished opinion, the Fourth Circuit
subsequently adopted the Gray analysis. Juniper v. Davis, 737 F.3d 288 (4th
Cir. 2013) (“Therefore, . . . we adopt Gray’s reasoning in toto.”). In Juniper, like
in Gray, the petitioner was represented by the same counsel in both his state
and federal habeas proceedings. Id. at 290. Again, the state habeas proceeding
was the petitioner’s initial-review collateral proceeding. Id. at 289. Thus, the
Fourth Circuit concluded that the petitioner should be appointed independent
counsel due to the same conflict of interest identified in Gray. Id.
Several district courts in the Fourth Circuit have followed those decisions
and, as part of their orders appointing supplemental counsel, also ordered a
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stay of the proceeding so that new counsel had an opportunity to investigate
and assert claims that fell within Martinez. See, e.g., Parker v. Joyner, No. 5:03HC-966-H, 2014 WL 6630108 (E.D.N.C. Nov. 21, 2014); Burke v. Lassiter, No.
5:12-cv-00137-RLV, Docket 40 (W.D.N.C. 2014).3
A similar path has been charted by the Fifth Circuit. See Mendoza v.
Stephens, 783 F.3d 203 (5th Cir. 2015); Speer v. Stephens, 781 F.3d 784 (5th
Cir. 2015). In Mendoza, 783 F.3d at 203-24, the court’s opinion consisted of a
single paragraph remanding the case to the district court to appoint
supplemental counsel and to determine if the petitioner could establish cause
for the procedural default of his ineffective assistance of trial counsel claims. A
concurring opinion provided additional details and noted that, as in Gray and
Juniper, Mendoza’s federal and state habeas counsel were the same. Id. at 208
(Owen, J., concurring). In Speer, 781 F.3d at 787, the court again remanded to
appoint supplemental counsel. A footnote indicated that the court’s “decision
addresses the universe of cases where petitioner’s counsel in his federal
petition was also his state habeas counsel.” Id. at 786 n.10. The same judge
that filed a concurring opinion in Mendoza did so in Speer “for the reasons set
forth in [her] concurring opinion in” the Mendoza case. Id. at 787 (Owen, J.,
concurring).
The Burke opinion is appended to Docket 269-3. Also appended is an
order from Sigmon v. Byars, No. 8:13-cv-01399-RBH-JDA, Docket 123 (D.S.C.
2014). Docket 269-4. In Sigmon, however, the petitioner identified several
ineffective assistance of claims to be included in his amended petition. The
state only partially opposed adding those claims, and the district court allowed
the petitioner to include them all.
3
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While this court is in no way bound by decisions from the Fourth and
Fifth Circuits, those courts have recognized that a conflict of interest can arise
when a petitioner’s initial-review collateral proceeding counsel and federal
habeas proceeding counsel are the same. In those circumstances–and if a
petitioner’s ineffective assistance claim was not raised in state habeas but
should have been–then federal habeas counsel is placed in the ethically
impermissible position of having to argue their own effectiveness during the
state habeas proceeding. The consequence is that the petitioner’s ineffective
assistance of trial counsel claims that should have been raised at the initialreview collateral proceeding may never be raised or heard at all. See Martinez,
132 S. Ct. at 1316. As a solution, supplemental counsel can be appointed to
independently determine whether state habeas counsel rendered ineffective
assistance during the initial-review collateral proceeding, thereby causing the
petitioner to procedurally default on his or her ineffective assistance of trial
counsel claims. Notably, however, if the petitioner has already received the
benefit of independent counsel, then the conflict of interest fails to materialize.
See Fowler v. Joyner, 753 F.3d 446, 465 (4th Cir. 2014).
Here, Rhines was represented by three attorneys at trial, sentencing, and
on direct appeal: Wayne Gilbert, Joseph Butler, and Michael Stonefield. Docket
73 at 16-17. During the initial state habeas and the appeal from that
proceeding, Rhines was represented by attorney Michael Hanson. Id. at 17. In
South Dakota, ineffective assistance of trial counsel claims are not normally
cognizable on direct appeal. See State v. Hannemann, 823 N.W.2d 357, 360
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(S.D. 2012) (“Only in rare cases will an ineffective-assistance-of-counsel claim
be ripe for review on direct appeal.”); State v. Arabie, 663 N.W.2d 250, 256
(S.D. 2003). Consequently, Rhines’s state habeas proceeding in which he was
represented by attorney Hanson was his initial-review collateral proceeding.
See Martinez, 132 S. Ct. at 1315 (defining initial-review collateral proceedings
as those “collateral proceedings which provide the first occasion to raise a
claim of ineffective assistance at trial.”); see also Trevino, 133 S. Ct. at 1915
(applying Martinez when the state proceeding “make[s] it ‘virtually impossible’
for an ineffective assistance claim to be presented on direct review.”) (citation
omitted).
After the South Dakota Supreme Court denied his first state habeas
petition, Rhines filed his federal habeas petition and was initially appointed
attorneys Michael Butler and John Schlimgen. Docket 19; Docket 20. Attorney
Michael Butler was discharged a little over one month after his appointment
when this court determined that he may be a potential witness. Docket 44.
Roberto Lange was then appointed as co-counsel to represent Rhines along
with attorney Schlimgen. Docket 47. Schlimgen was the learned counsel.
Attorney Schlimgen continued to represent Rhines until August 2008,
when Schlimgen was appointed as a magistrate judge in the Second Judicial
Circuit of South Dakota. Docket 167; Docket 169. This court then appointed
attorney Charles Rogers as co-counsel. Docket 174. Rogers was the learned
counsel. Attorney Lange continued to represent Rhines until October 2009,
when Lange was appointed as a United States District Judge for the District of
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South Dakota. Docket 183. The federal public defenders’ office was then
appointed as co-counsel with Rogers. Docket 184. Attorneys from the federal
public defenders’ office, namely, William Delaney III, Jana Miner, Neil Fulton,
Jason Tupman, and Tim Langley, have all noted appearances on behalf of
Rhines. Docket 187; Docket 193; Docket 195; Docket 207; Docket 208.
Attorney Rogers continued to represent Rhines until his retirement from the
practice of law in March 2015. Docket 259. Finally, attorney Carol Camp was
appointed on April 10, 2015, as learned counsel. Docket 260.
Thus, Rhines was not in the same position as the petitioners in Gray,
Juniper, Mendoza, and Speers because Rhines’s counsel during his initialreview collateral proceedings and his federal habeas proceeding did not overlap.
Aside from the brief appointment of attorney Michael Butler–who did not, in
fact, represent Rhines in his earlier proceedings but nonetheless was
discharged–Rhines already received wholly independent counsel. See Fowler,
753 F.3d at 464-65 (noting that even with a brief overlap between state and
federal habeas counsel the petitioner had independent counsel “for a
substantial period of time during the pendency of his federal habeas petition in
the district court.”). Consequently, the same ethical dilemma arising in the
Fourth and Fifth Circuit cases is simply not present in Rhines’s case.
While Rhines contends that there was at least a partial overlap between
his federal and state habeas counsel when he returned to state court in 2005
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to exhaust his then-unexhausted claims,4 the Martinez Court explained the
boundaries of its “narrow exception” in no uncertain terms:
The rule of Coleman governs in all but the limited circumstances
recognized here. The holding in this case does not concern attorney
errors in other kinds of proceedings, including appeals from initialreview collateral proceedings, second or successive collateral
proceedings, and petitions for discretionary review in a State's
appellate courts. It does not extend to attorney errors in any
proceeding beyond the first occasion the State allows a prisoner to
raise a claim of ineffective assistance at trial, even though that
initial-review collateral proceeding may be deficient for other
reasons.
Martinez, 132 S. Ct. at 1320 (emphasis added) (citations omitted). Rhines’s
return to state habeas court in 2005 was not his “first designated proceeding
for a prisoner to raise a claim of ineffective assistance of trial counsel” and was
therefore not his initial-review collateral proceeding. Id. at 1317. Rather, that
opportunity came when Rhines was represented by attorney Hanson. By its
own terms, Martinez does not apply to any proceeding beyond Rhines’s initialreview collateral proceeding. Likewise, those cases from the Fourth and Fifth
Circuits note that the conflict arises when it is the initial-review collateral
proceeding counsel that overlaps with federal habeas counsel. See Mendoza,
783 F.3d at 204 (Owen, J., concurring), Juniper, 737 F.3d at 289.
Consequently, even if there was an overlap in Rhines’s federal and state habeas
counsel during the later proceeding, that does not justify Rhines’s request for
an additional stay of this proceeding.
Attorneys Schlimgen and Lange had both withdrawn by 2009, several
years before the state court ruled on Rhines’s petition in 2012.
4
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Second, this is not a case where a petitioner’s claims of ineffective
assistance of trial counsel have gone unheard. Prior to Rhines’s filing his
amended federal habeas petition, this court instructed Rhines “to include every
known constitutional error or deprivation entitling [him] to habeas relief.”
Docket 72. Additionally, Rhines was “advised that he may be presumed to have
deliberately waived his right to complain of any constitutional error [or]
deprivation not raised in the Amended Petition.” Id.
In Rhines’s amended federal habeas petition, he raised ten reasons why
he believed trial counsel was constitutionally ineffective. Docket 73 at 12-13.
Most of those claims were also raised by attorney Hanson during Rhines’s first
state habeas proceeding. This court determined, however, that four of those
claims had not previously been raised and were unexhausted. Docket 116.
After Rhines returned to state court to exhaust his non-exhausted state claims,
those four ineffective assistance of trial counsel claims were litigated and
decided by the state court. See Docket 204-1 at 15-25. Thus, the reason for the
exception laid down in Martinez–that a petitioner’s substantial ineffective
assistance of trial counsel claims may never otherwise be heard at all–is not
present in this proceeding.
What Rhines seeks now is an opportunity for his current counsel to
comb through the record and look for additional ineffective assistance of trial
counsel claims overlooked not only by attorney Hanson but also by each of
Rhines’s federal habeas attorneys. Such an expansive reading of Martinez is
not warranted by the explicit narrowness of its holding. Moreover, Martinez
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contemplated that the petitioner would present an existing ineffective
assistance of trial counsel claim that the federal habeas court could analyze.
Martinez, 132 S. Ct. at 1318 (explaining the court must determine whether the
otherwise defaulted claim is a substantial one); see also Sasser v. Hobbs, 735
F.3d 833, 851 (8th Cir. 2013) (discussing the four potentially meritorious
claims raised by the petitioner). Rhines has presented no potentially
meritorious claims at all. And while, for example, the Gray court did not hold it
against the petitioner that he had not yet presented any substantial claims in
his request for substitute counsel, that was attributable to the conflict of
interest that prevented his then-current counsel from doing so in the first
instance. Gray, 526 Fed Appx. at 334-35 (noting “no material difference
between an ethical prohibition on a lawyer’s attempt to investigate or advance
her own potential errors, on the one hand, and a like prohibition on her
attempts to identify and produce a list of her own errors giving rise to a
‘substantial claim’ on the other hand.”) (emphasis in original).
Finally, this court lifted the stay on Rhines’s federal habeas proceeding
on February 4, 2014, nearly two years after the Martinez case was handed
down. Yet, Rhines did not seek leave to conduct the investigation sought by his
pending motion for another 15 months. See Docket 265 (dated May 5, 2015).
Rhines offers no explanation for this delay. As the Supreme Court explained,
the exception it created was not only narrow, but also equitable. See Martinez,
132 S. Ct. at 1320. The untimeliness of Rhines’s motion is but another reason
that justifies denying his request for another stay.
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CONCLUSION
Rhines received independent counsel during his initial-review collateral
proceeding and his federal habeas proceeding. Rhines has not identified any
ineffective assistance of trial counsel claims that have not already been
resolved or were otherwise overlooked and would fall within the Supreme
Court’s Martinez decision. Rhines’s late attempt to further delay this
proceeding also undermines his claim that an additional stay is warranted.
Accordingly, it is
ORDERED that the motion to hold this proceeding in abeyance
(Docket 265) is denied.
Dated August 5, 2015
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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