Davis v. Gilbert

Filing 13

ORDER Granting 11 Motion to Stay, signed by Magistrate Judge Theresa L Fricke. Parties are directed to file a joint status report every ninety (90) days that sets forth the progress of petitioner's bar complaint. **2 PAGE(S), PRINT ALL**(Charles Davis, Prisoner ID: 318058)(GMR)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CHARLES JEFFERY DAVIS,
NO. 3:17-cv-05665-RBL-TLF
Petitioner,

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ORDER GRANTING STAY
v.
MARGARET GILBERT,
Respondent.
Petitioner Charles Jeffery Davis filed a habeas corpus petition challenging his custody
under a state court judgment and sentence. Dkt. 3. Respondent has answered the petition, Dkt.

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8, and petitioner has filed a reply, Dkt. 12. Petitioner moves to stay these proceedings until the
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resolution of his complaint with the Washington State Bar Association against his appellate
counsel. Dkt. 11. Respondent Margaret Gilbert does not object to the motion. Dkt. 11-1.
DISCUSSION

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The Court may stay a petition and hold the proceedings in abeyance where the stay
would be a proper exercise of discretion. Rhines v. Weber, 544 U.S. 269, 276 (2005). If
employed too frequently, stays and abeyances have the potential to undermine the twin

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purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA)—encouraging
finality and streamlining federal habeas proceedings because stays delay resolution and

ORDER GRANTING STAY - 1

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decrease the incentive to exhaust all claims in state court before filing a federal petition. Id.

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Therefore, “stay and abeyance should be available only in limited circumstances.” Id. at 277.

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Here, petitioner requests a stay not to fully exhaust his claims, but rather to resolve a

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complaint with the Washington State Bar Association against his former appellate counsel. See
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Dkt. 12, p. 3. He asserts that the outcome of that process will provide evidence of excusable

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neglect, which in turn would permit equitable tolling of the one-year statute of limitations for

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his habeas corpus petition. Id. That statute of limitations is the focus of respondent’s answer to

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the petition. Dkt. 8.

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Respondent has not responded to the motion to stay proceedings. According to
petitioner’s affidavit, respondent has agreed to stay proceedings until the bar complaint is

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resolved. Dkt. 11-1.
CONCLUSION

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Accordingly, petitioner’s motion to stay, Dkt. 11, will be GRANTED and this matter

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STAYED pending resolution of petitioner’s bar complaint against his former appellate

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counsel. The Court also directs the parties to file a joint status report every ninety (90) days

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that sets forth the progress of petitioner’s bar complaint. See Rhines, 544 U.S. at 277–78

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(noting that even where stay and abeyance is appropriate, a federal district court’s discretion to
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structure a stay is limited by AEDPA’s timeliness concerns). The Clerk is directed to send
copies of this Order to petitioner.
DATED this 25th day of April, 2018.

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A

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Theresa L. Fricke
United States Magistrate Judge

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ORDER GRANTING STAY - 2