CIVIL ACTION NO. 03-10422-GAO.United States District Court, D. Massachusetts.
July 2, 2003.
ORDER DENYING MOTION FOR STAY
GEORGE O’TOOLE, District Judge
The petitioner has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition alleges five grounds in support of the relief sought. The respondent moved to dismiss the petition as a “mixed” one, because it contains only one claim as to which the petitioner had exhausted all available state law remedies and four “unexhausted” claims. In turn, the petitioner, recognizing the problem, has moved to stay the petition while he pursues the exhaustion in the state courts of the presently unexhausted claims.
Prior to 1996, there was no enacted statute of limitations for presenting habeas petitions under § 2254. If, as the law required, see Rose v. Lundy, 455 U.S. 509 (1982), a mixed petition were dismissed (ordinarily without prejudice), the petitioner could go to the state courts and exhaust the previously unexhausted claims, then (if unsuccessful in obtaining the desired relief) return to the federal court and present all the claims originally sought to be asserted, now fully exhausted.
The enactment of a one-year statute of limitations, see28 U.S.C. § 2244(d), has changed that. Dismissal of an entire mixed petition will include the dismissal of any timely filed, fully exhausted claims. By the time the state court proceedings regarding the unexhausted claims have been completed, so that those claims may be timely filed in a second petition, the original properly exhausted claims may be barred by the expiration of the applicable limitations period. On the other hand, if a petitioner dismisses only the unexhausted claims from the first petition and pursues that petition’s exhausted claims, a subsequent petition attempting to present the previously unexhausted, but lately exhausted, claims may be vulnerable to dismissal under the “second or successive petition” branch of “abuse of the writ” doctrine. See 28 U.S.C. § 2244(b); Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Court. A mixed petition thus now presents an uncomfortable straddle for the petitioner, and a jurisprudential conundrum for the courts.
One solution to this problem is the one sought by the petitioner here, and that is to stay the consideration of the exhausted claim until he has exhausted the other claims and then returns to prosecute them here.[1] The First Circuit has said that such a course may be appropriate in many cases, seeNeverson v. Bissonnette, 261 F.3d 120, 126 n. 3 (1st Cir. 2001), and I have followed that course in some cases, see,e.g., Springer v. Hall, No. CIV.A. 01-11919, 2003 WL 203081
(Mass. Jan. 30, 2003).
However, that course is not automatically appropriate for every case, and I decline to follow it here. The district courts are bound to respect the federal policies underlying both the limitations period for presenting habeas petitions and the exhaustion requirement. “Placeholder” petitions that are stayed while the petitioner pursues previously ignored state remedies are not always or necessarily, though they may be, consistent with those policies.
In this case, the petitioner appealed his conviction to the Massachusetts Appeals Court, presenting five separate claims of error. After the Appeals Court rejected the grounds and affirmed the conviction, the petitioner pursued the next step available in direct appeals under Massachusetts law by presenting an application to the Supreme Judicial Court for leave to obtain further appellate review. Rather than present the five grounds argued to the Appeals Court, however, the petitioner sought further review of only one. At both appellate levels, the petitioner was represented by appellate counsel, and it is a fair inference that the decision to present only one claim to the Supreme Judicial Court was a deliberate choice by counsel. It is not unfair in these circumstances to limit the scope of the habeas petition to the single claim selected for exhaustion in the first instance. If following this course presents the risk to the petitioner that any later petition will be barred, that is a risk that has its roots in the tactical decision made by counsel on the petitioner’s behalf.
Accordingly, the entire petition will be dismissed unless the petitioner elects to voluntarily dismiss the unexhausted claims within 35 days from the date of this order. If he does so elect, those claims shall be dismissed and the petition shall be entertained as to the exhausted claim.
The motion to stay is DENIED.