De Bauche v. Grams

Filing 2

ORDER signed by Judge J P Stadtmueller on 3/10/10 denying 1 petitioner's Motion to Stay AEDPA's one-year statute of limitations. See Order. (cc: petitioner, all counsel) (nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
____________________________________________ D A V ID De BAUCHE, Petitioner, v. G R E G O R Y GRAMS, R e s p o n d e n t. ____________________________________________ C a s e No. 10-MC-14

ORDER
P e titio n e r David De Bauche ("De Bauche") asks this court to stay the one-year s ta tu te of limitations period in which he must file a timely petition for a writ of habeas c o rp u s pursuant to 28 U.S.C. § 2254. De Bauche asserts that he has exhausted o n e "confrontation clause" claim, but wishes to present additional ineffective a s s is ta n c e of counsel claims to the state courts. He asks this court to "hold his c o n te m p la te d § 2254 petition in abeyance" so that he may exhaust the remainder o f his claims before actually filing a § 2254 petition. (Pet.'s Mot., at 1). T h is issue arises because a petitioner seeking a writ of habeas corpus must firs t exhaust his state remedies. Moleterno v. Nelson, 114 F.3d 629, 633 (7th Cir. 1 9 9 7 ). A federal district court typically will dismiss without prejudice a habeas p e titio n that includes any unexhausted claims. The court may, however, stay the fe d e ra l proceedings and place them in abeyance while the petitioner pursues state c o u rt remedies if outright dismissal would jeopardize the petitioner's opportunity for a n y federal review of the unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275

(2 0 0 5 ). Therefore, if De Bauche had filed a "mixed" § 2254 petition including both h is exhausted and unexhausted claims, the court would consider whether holding th e case in abeyance was appropriate. This is not the situation before the court. De Bauche has not yet filed a federal h a b e a s petition. Therefore, there are no federal proceedings for the court to hold in abeyance. The United States Supreme Court suggests that a petitioner may file a "protective" petition in federal court, and then request that the petition be held in a b e y a n c e until state remedies are exhausted. See Pace v. DiGuglielmo, 544 US 4 0 8 , 416-17 (2005). However, this requires a petitioner to first file a § 2254 petition in c lu d in g both his exhausted and unexhausted claims, and then request that the p ro c e e d in g be held in abeyance. Only then can the district court determine whether s t a yin g his petition is appropriate. De Bauche's current motion to hold his

c o n te m p la te d petition in abeyance is premature and the court is obliged to deny it. A c c o r d in g ly , IT IS ORDERED that the petitioner's motion to stay AEDPA's one-year statute o f limitations (Docket #1) be and the same is hereby DENIED without prejudice. D a te d at Milwaukee, W is c o n s in , this 10th day of March, 2010. BY THE COURT:

J .P . Stadtmueller U .S . District Judge -2-