Agofsky v. Jones , 762 F.3d 1174 ( 2014 )

FILED
United States Court of Appeals
Tenth Circuit
August 12, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
JOHN DOE,
Petitioner-Appellant,
v.
No. 12-6311
JUSTIN JONES, Director;
OKLAHOMA DEPARTMENT OF
CORRECTIONS; E. SCOTT PRUITT,
Attorney General, State of Oklahoma,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:12-CV-00182-F)
Claudia Van Wyk, Federal Community Defender, Eastern District of
Pennsylvania, Philadelphia, Pennsylvania (Robert R. Nigh, Jr., Brewster &
De Angelis, P.L.L.C., Tulsa, Oklahoma, with her on the briefs), for Petitioner-
Appellant.
Seth S. Branham, Assistant Attorney General (E. Scott Pruitt, Attorney General),
State of Oklahoma, Oklahoma City, Oklahoma, for Respondents-Appellees.
Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.
SEYMOUR, Circuit Judge.
Petitioner John Doe, 1 a federal prisoner, filed this first habeas petition
pursuant to 28 U.S.C. § 2254 and an almost identical post-conviction relief
application in state court, challenging the constitutionality of a prior Oklahoma
state court conviction based on evidence of actual innocence. He also filed a
motion to abate this § 2254 action pending state court exhaustion of his claims.
The district court dismissed his habeas petition without prejudice, adopting the
magistrate judge’s Report and Recommendation and holding that a stay under
Rhines v. Weber, 544 U.S. 269 (2005), was not available because the petition was
not “mixed” 2 as in Rhines and, in any event, because petitioner lacked good cause
for the stay. Although we disagree with the district court’s reasoning regarding
the potential application of Rhines, we affirm its denial of a stay.
I
Petitioner was convicted of first-degree murder by a jury in Oklahoma and
sentenced to life without parole. His direct appeal was unsuccessful and he did
not file for a writ of certiorari, an application for state post-conviction relief, or a
federal habeas petition. He was separately convicted in federal court for robbery
of a federally insured bank, which took place in connection with the Oklahoma
1
In light of the sealed nature of portions of the record, we have omitted the
name of petitioner and all nonessential facts.
2
A “mixed” habeas petition contains claims that have been exhausted in
state court and ones that have not. Rhines, 544 U.S. at 271.
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murder, and was sentenced to life imprisonment for that crime. While serving the
federal life sentence in Texas, petitioner was convicted of murdering a fellow
inmate. The government introduced evidence of petitioner’s Oklahoma murder
conviction during the sentencing phase of his federal capital case, and he was
subsequently sentenced to death.
Petitioner contends that following the imposition of his death sentence,
newly discovered evidence came to light of his factual innocence of the
Oklahoma murder and related federal robbery. In response to this new
evidence—and within one year of the factual predicate that he asserts made its
discovery possible (two days short of exactly one year)—petitioner filed a
petition for post-conviction relief in Oklahoma state court and this § 2254 petition
in federal court, 3 along with a motion to stay and abate the § 2254 proceeding
pursuant to Rhines until he could exhaust his state court remedies. 4 Petitioner
3
None of the claims in the federal petition were exhausted in state court
and, with the exception of the actual innocence claim, they are concededly
untimely under 28 U.S.C. § 2244(d)(1).
4
Petitioner had already filed a 28 U.S.C. § 2255 action in Texas, in which
he is challenging his federal death sentence. The federal district court in Texas
granted his motion to stay and abate that proceeding pending resolution of post-
conviction proceedings challenging his Oklahoma conviction, which the court
required him to pursue within thirty days of the order to stay. Four days later,
petitioner filed the state and federal requests for post-conviction relief from his
Oklahoma conviction.
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raises an actual innocence claim both as a freestanding constitutional claim5 and
as a “gateway” to raising his otherwise time-barred constitutional claims,
including ineffective assistance of trial and appellate counsel and suppression of
exculpatory evidence. See Schlup v. Delo, 513 U.S. 298, 315 (1995) (“[A] claim
of innocence is . . . a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the merits.”
(quoting Herrera, 506 U.S. at 404) (internal quotation marks omitted)).
The magistrate judge recommended the motion to stay be denied and the
§ 2254 petition be dismissed without prejudice because the petition was not mixed
as in Rhines and because a stay was not warranted. The district court adopted the
Report and Recommendation and dismissed the petition. It then denied
petitioner’s Motion to Alter and Amend Judgment, as well as his request for a
certificate of appealability.
Petitioner filed a timely notice of appeal and sought a certificate of
appealability from this court, which was granted.
II
We review de novo the district court’s refusal to grant a stay on the basis
5
The Supreme Court has “not resolved whether a prisoner may be entitled
to habeas relief based on a freestanding claim of actual innocence.” McQuiggin
v. Perkins, 133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390,
404-05 (1993)).
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that the petition was not mixed. Cummings v. Sirmons, 506 F.3d 1211, 1222
(10th Cir. 2007). We review for abuse of discretion the court’s alternative denial
of petitioner’s particular request for a stay due to his failure to show good cause.
See Rhines, 544 U.S. at 278-79.
A prisoner challenging a state conviction normally has one year to file a
federal habeas petition, starting from “the date on which the judgment became
final by the conclusion of direct review or the expiration of the time for seeking
such review.” § 2244(d)(1)(A). But if the petitioner alleges newly discovered
evidence, the filing deadline is one year from “the date on which the factual
predicate of the claim . . . could have been discovered through the exercise of due
diligence.” § 2244(d)(1)(D). Based on petitioner’s habeas petition, we assume
without deciding that the factual predicate of his actual innocence claim could not
have been discovered with due diligence before the alleged triggering event,
making the claim timely under § 2244(d)(1)(D). In addition, a habeas petition’s
claims generally must be exhausted in state court before a federal court may
review them. § 2254(b)(1)(A).
Petitioners were not always required to exhaust all of their claims in state
court prior to filing a federal habeas petition in order to preserve each claim for
federal review. Prior to Rose v. Lundy, 455 U.S. 509 (1982), they were able to
proceed piecemeal as long as their failure to assert the later grounds in a prior
petition was not found to be “an abuse of the writ.” See Sanders v. United States,
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373 U.S. 1, 17 (1963); see also Lundy, 455 U.S. at 514 n.6 (“[A] second or
successive petition may be dismissed . . . [where] new and different grounds are
alleged, [if] the judge finds that the failure of the petitioner to assert those
grounds in a prior petition constituted an abuse of the writ.” (quoting 28 U.S.C.
§ 2254 Rule 9(b) (1976) (amended 2004))). The majority of Courts of Appeals
“permitted the District Courts to review the exhausted claims in a mixed petition
containing both exhausted and unexhausted claims.” Lundy, 455 U.S. at 513 n.5.
Then, in Lundy, the Court held that before a federal district court may
review a habeas petition, all of its claims must be exhausted in state court. Id. at
522. This “total exhaustion rule” requires a district court to dismiss habeas
petitions containing both exhausted and unexhausted claims. Id. In deciding to
require total exhaustion, the Court wanted to thwart prisoners intentionally
withholding grounds for habeas relief “in the hope of being granted two hearings
rather than one.” Id. at 521 (quoting Sanders, 373 U.S. at 18) (internal quotation
marks omitted). The Court in Sanders was concerned about “abuse of the writ,”
noting that “[n]othing in the traditions of habeas corpus requires the federal
courts to tolerate needless piecemeal litigation, to entertain collateral proceedings
whose only purpose is to vex, harass, or delay.” 373 U.S. at 17-18 (discussing
successive petitions). Lundy was decided in light of the doctrine that “one court
should defer action on causes properly within its jurisdiction until the courts of
another sovereignty with concurrent powers, and already cognizant of the
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litigation, have had an opportunity to pass upon the matter.” 455 U.S. at 521
(quoting Darr v. Burford, 339 U.S. 200, 204 (1950)) (internal quotation marks
omitted). The Court determined that total exhaustion “promotes comity and does
not unreasonably impair the prisoner’s right to relief.” Id. at 522.
Significantly, Lundy was decided at a time when petitioners could return to
federal court after exhausting their unexhausted claims to “present their perfected
petitions with relative ease,” as there was no statute of limitations on filing
federal habeas petitions. Rhines, 544 U.S. at 274. Only later did Congress enact
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which
introduced a one-year statute of limitations for filing federal habeas petitions.
§ 2244(d)(1) 6; see also Rhines, 544 U.S. at 274. Congress enacted AEDPA to
“reduce delays in the execution of state and federal criminal sentences,
particularly in capital cases” and to streamline the process by requiring a
petitioner to exhaust all his claims in state court before filing his federal petition.
Rhines, 544 U.S. at 276-77 (quoting Woodford v. Garceau, 538 U.S. 202, 206
(2003)) (internal quotation marks omitted). At the same time, AEDPA “preserved
Lundy’s total exhaustion requirement.” See id. at 274 (citing § 2254(b)(1)(A)).
Almost a decade after Congress enacted AEDPA, the Supreme Court
unanimously acknowledged in Rhines that the interaction between Lundy’s total
6
The one-year clock is stopped while a petitioner’s “properly filed” state
post-conviction petition is pending. § 2244(d)(2).
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exhaustion requirement and AEDPA’s statute of limitations created at least two
risks: (1) “‘mixed’ petitions run the risk of forever losing their opportunity for
any federal review of their unexhausted claims”; and (2) “if a district court
dismisses a mixed petition close to the end of the 1-year period, the petitioner’s
chances of exhausting his claims in state court and refiling his petition in federal
court before the limitations period runs are slim.” Id. at 275, 279.
In “recogniz[ing] the gravity of th[e] problem,” the Court sanctioned the
stay-and-abeyance procedure. Id. at 275-78. District courts have the prerogative
to decide whether a stay is warranted given the specific circumstances of a case.
Id. at 276 (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “[T]he 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.” Landis, 299 U.S. at 254 (discussing general
power to stay irrespective of whether petition is mixed). A district court has
broad discretion to stay a petition, but the Court made clear that this discretion is
not unlimited in the habeas context. See Rhines, 544 U.S. at 276-77 (pointing to
AEDPA’s “timeliness concerns” as limiting such discretion). “[G]ranting a stay
effectively excuses a petitioner’s failure to present his claims first to the state
courts,” which 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.”
Id. at 277. But where a petitioner has good cause for filing his federal habeas
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petition before first exhausting the claims, and where his unexhausted claims are
“potentially meritorious” and his request for a stay is not made solely to delay
litigation, a district court’s denial of a stay would likely be an abuse of its
discretion. Id. at 278.
The magistrate judge denied petitioner’s request for a stay because his
petition was not mixed and because the judge determined he failed to demonstrate
a need for a stay. We address these reasons in turn.
A
While the Court in Rhines explicitly discussed stays in the mixed-petition
context, id. at 278, its rationale is potentially applicable to a petition with wholly
unexhausted claims that is protectively filed during the pendency of state post-
conviction proceedings. Petitioners with unmixed petitions may run a similar risk
of “forever losing their opportunity” for federal review, id. at 275, depending on
the circumstances. Their chances of both returning to state court to exhaust their
claims and then refiling their federal petition before the limitations period runs
may be “slim,” especially where the unmixed petition is dismissed near the end of
the one-year statute of limitations period. See id. In such cases, “the petitioner’s
interest in obtaining federal review of his claims outweighs the competing
interests in finality and speedy resolution of federal petitions.” See id. at 278.
Three Circuit Courts of Appeal have addressed the issue of Rhines stays as they
apply to unmixed petitions: two have applied Rhines, see Heleva v. Brooks, 581
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F.3d 187, 191-92 (3d Cir. 2009), Dolis v. Chambers, 454 F.3d 721, 724-25 (7th
Cir. 2006), and one has declined to do so, see Rasberry v. Garcia, 448 F.3d 1150,
1154 (9th Cir. 2006).
In Heleva v. Brooks, the Third Circuit relied on Pace v. DiGuglielmo, 544
U.S. 408 (2005), to conclude the Supreme Court “sanctioned” the application of a
Rhines stay to “context[s] outside that of mixed petitions.” 581 F.3d at 191. The
petitioner in Pace sought and was denied state post-conviction relief twice before
filing a federal habeas petition containing only the claims exhausted in his second
state post-conviction relief application. See 544 U.S. at 410-11, 418-19. In
finding that the second state post-conviction relief application was not “properly
filed” due to its untimeliness and that it therefore could not statutorily toll the
limitations period under § 2244(d)(2), the Court suggested petitioners could avoid
this problem “by filing a ‘protective petition’ in federal court and asking the
federal court to stay and abey the federal habeas proceedings until state remedies
are exhausted.” Id. at 416.
As the court in Heleva noted, the petition in Pace was not mixed. 581 F.3d
at 191. It observed that “a distinction between mixed and non-mixed petitions
would make no sense in the context of granting a stay to avoid penalizing a
prisoner for reasonable confusion about state court filing requirements.” Id.
The petitioner in Heleva filed a wholly unexhausted habeas petition and a
motion to stay and abate almost eight months after he filed a state petition for
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post-conviction relief. Id. at 189. He did so because he believed he would have
only one day left on his federal habeas statute of limitations clock once the state
addressed his post-conviction claims. Id. at 191. The court likened this “tight
timeline” to “the kind of reasonable confusion about state filing requirements that
Pace categorized as ‘good cause’ for a stay.” Id. at 191-92. It remanded the case
to the district court to determine whether the petitioner satisfied the requirements
for a Rhines stay, instructing the district court to consider, among other things,
the amount of time available to a petitioner to file a § 2254 petition after
exhausting state court remedies when evaluating whether a petitioner has met the
good cause standard. 7 Id. at 192-93.
In Dolis v. Chambers, the Seventh Circuit granted a certificate of
appealability, vacated the district court’s dismissal without prejudice of the
petitioner’s wholly unexhausted habeas petition, and “remanded with instructions
to consider a stay of the federal court proceedings following Newell v. Hanks, 283
F.3d 827 (7th Cir. 2002),” the circuit’s pre-Rhines authority recognizing a court’s
authority to stay a mixed habeas petition. 8 Dolis, 454 F.3d at 722, 724-25.
7
The court determined the petitioner would actually have had at least 30
days to refile a habeas petition. Heleva, 581 F.3d at 193.
8
In Dolis, the court was addressing the state’s request for reconsideration
of its ruling, which it construed as a petition for rehearing. 454 F.3d at 722. The
state contended the court had no jurisdiction over the district court’s dismissal
without prejudice. Id. at 724. The court denied the petition and applied Rhines in
analyzing why the district court should consider a stay and abeyance rather than
(continued...)
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Because the petitioner had not yet filed a state post-conviction application and his
federal habeas petition did not stop the AEDPA statute of limitations clock, a
dismissal without prejudice “would effectively end any chance at federal habeas
review.” Id. at 723-25. While the court did not specify exactly how much time
Dolis had remaining on the clock, it noted that “very shortly after the district
court dismissed his case, it became impossible for him to refile it, because it
would be barred by the statute of limitations.” Id. at 724. Accordingly, it
suggested:
it would be wise for a petitioner to file in both state and federal court
simultaneously, particularly where there is some procedural
uncertainty about the state court post-conviction proceeding, and
then ask the district court to stay the federal case until the state case
concludes to ensure that she does not miss the one-year deadline.
Id. at 725 (emphasis added). The court added that “[i]n keeping with Rhines, the
district court would naturally have discretion to decide whether a stay was
warranted in the particular circumstances of each case.” Id.
In Rasberry v. Garcia, the Ninth Circuit declined to extend the stay and
abeyance procedure to “the situation where the original habeas petition contained
only unexhausted claims . . . .” 448 F.3d at 1154. Rasberry filed a petition for
review in state court, which was denied, but then he filed a federal habeas
application which included only unexhausted claims. Id. at 1152. He filed a
(...continued)
dismissal. Id.
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second state post-conviction application to exhaust the claims in his federal
habeas petition only after his federal petition was dismissed for lack of exhaustion
and the federal statute of limitations had run. Id. On appeal from the district
court’s dismissal of his federal petition, he contended the district court was
obliged to inform “a pro se petitioner of the right to amend a habeas petition to
include exhausted claims that the petitioner omitted from the habeas petition-if it
is apparent from the record that the petitioner meant to include the claims.” Id. at
1153. In light of Rasberry’s request for a notice requirement, the Ninth Circuit
declined to apply Rhines to the petition before it because of a concern that “[s]uch
an extension would result in a heavy burden on the district court to determine
whether a petitioner who file[d] a petition that on its face is unexhausted may
have other exhausted claims that could have been raised.” Id. at 1154.
While none of these cases map perfectly onto the facts of the present case,
petitioner’s situation is most like those of the petitioners in Dolis and Heleva. In
each of those cases, the petitioner had a brief amount of time remaining on his
federal statute of limitations clock. Whether this is deemed a “tight timeline,”
Heleva, 581 F.3d at 191, or cause for “procedural uncertainty about the state court
post-conviction proceeding,” Dolis, 454 F.3d at 725, it nevertheless is a
significant factor in determining whether a Rhines stay is appropriate. Petitioner
here has only two days remaining on his AEDPA statute of limitations and finds
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himself in a similar predicament as the petitioners in Heleva and Dolis except that
he followed the Seventh Circuit’s guidance and filed a protective petition.
The court’s rationale in Rasberry must be read in light of the case’s factual
context. It is neither surprising nor unprecedented that a court would refuse to
recognize an obligation to provide the notice Rasberry requested be provided to
all habeas petitioners. Cf. Pliler v. Ford, 542 U.S. 225, 231-32 (2004) (declining
to require district judges to warn pro se petitioners that their federal claims would
be time-barred upon return to federal court). Furthermore, unlike Rasberry,
petitioner in the present case raised the exact same claims in both his state post-
conviction application and federal habeas petition, 9 which were filed
simultaneously just before the AEDPA statute of limitations had run: the
quintessential “protective petition.” Petitioner in the instant case does not seek
any type of notice from the district court, only the opportunity to receive a stay
and abeyance for the same reasons the Court in Rhines adopted the procedure in
the first place.
Where a petitioner files a protective federal habeas petition during the
pendency of state court proceedings because of the short time period remaining on
the federal statute of limitations and can meet the Rhines three-part test, the total
9
Notably, this is petitioner’s first federal habeas petition, and “[d]ismissal
of a first federal habeas petition is a particularly serious matter.” Case v. Hatch,
731 F.3d 1015, 1036 (10th Cir. 2013) (alteration in original) (quoting House v.
Bell, 547 U.S. 518, 539 (2006)) (internal quotation marks omitted).
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exhaustion rule’s protection against “needless piecemeal litigation” and
“proceedings whose only purpose is to vex, harass, or delay” is not
compromised. 10 This is particularly so because
[f]actors (2) and (3) of the Rhines test itself—that the “unexhausted
claims are potentially meritorious,” and that “there is no indication
that the petitioner engaged in intentionally dilatory litigation tactics,”
[Rhines, 544 U.S.] at 278, 125 S. Ct. 1528—are designed, together
with the first factor, to ensure that the Rhines stay and abeyance is
not, contrary to the district court’s concern, available “in virtually
every case.”
Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). Thus, the Rhines three-part
test strictly limits the availability of a stay where a petitioner has not yet
exhausted his state remedies. Accordingly, granting a stay where appropriate
under Rhines furthers the exhaustion doctrine’s principal design “to protect the
state courts’ role in the enforcement of federal law and prevent disruption of state
judicial proceedings.” Lundy, 455 U.S. at 518.
Whether they have mixed or unmixed petitions, petitioners with little
chance of exhausting their claims in state court and returning to federal court
before the limitations period runs should not be foreclosed from the very
mechanism designed to protect against such risk if they can satisfy the Rhines
standards. In such cases, a categorical bar on stays for unmixed petitions would
10
Moreover, the enactment of AEDPA’s statute of limitations reduced the
time period in which piecemeal litigation could occur. See Lundy, 455 U.S. at
521 (noting concern that petitioners would splice petitions “in the hope of being
granted two hearings rather than one”).
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“unreasonably impair the prisoner’s right to relief,” id. at 522, and could
“effectively end any chance at federal habeas review,” Dolis, 454 F.3d at 725.
Accordingly, we conclude that the district court had discretion to consider a
Rhines stay even though petitioner filed an unmixed petition.
B
We now turn to the district court’s second reason for denying the stay, that
it was unwarranted in this case. The Court in Rhines made clear that a district
court would likely abuse its discretion if it denied a stay and dismissed a habeas
petition where “the petitioner had good cause for his failure to exhaust [before
filing his federal petition], his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics.” 544 U.S. at 278. Following its decision in Rhines, the Court
provided one example of good cause: “reasonable confusion about whether a state
filing would be timely.” Pace, 544 U.S. at 416. In doing so, the Court
specifically suggested the filing of a “protective petition” in federal court in order
to avoid the possibility that “a petitioner trying in good faith to exhaust state
remedies . . . litigate[s] in state court for years only to find out at the end that he
never properly filed [as required by § 2244(d)(2)], and thus that his federal
habeas petition is time barred.” Id. (internal quotation marks omitted). As we
have noted, both Helvea, 581 F.3d at 191-92, and Dolis, 454 F.3d at 724-25,
equated the short time remaining on a petitioner’s AEDPA limitations period to
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the type of good cause recognized in Pace. Other courts have determined in the
mixed-petition context that the Rhines good cause requirement is satisfied where a
petitioner’s failure to exhaust in state court before filing in federal court was
caused by ineffective assistance of post-conviction counsel, Blake, 745 F.3d at
983, by the “prosecution’s wrongful withholding of information,” Jalowiec v.
Bradshaw, 657 F.3d 293, 304-05 (6th Cir. 2011), or by “any external objective
factor that cannot fairly be attributable to [petitioner],” Hernandez v. Sullivan,
397 F. Supp. 2d 1205, 1206-07 (C.D. Cal. 2005) (analogizing “good cause”
requirement of Rhines to “cause” requirement in the procedural default context).
Petitioner here relies on the short time remaining on the AEDPA statute of
limitations for his actual innocence claim to establish good cause within the
meaning of Rhines. Pursuant to our decision in Lopez v. Trani, 628 F.3d 1228,
1230-31 (10th Cir. 2010), however, the magistrate judge determined that because
petitioner’s actual innocence claim would be grounds for equitable tolling of the
federal limitations period if that limitations period has run before petitioner is
able to refile his federal habeas application after exhausting state court remedies,
a stay was unwarranted. While this case was pending appeal, the Supreme Court
decided McQuiggin v. Perkins, holding that a “credible showing of actual
innocence” provides an outright equitable exception to AEDPA’s statute of
limitations. 133 S. Ct. at 1928, 1931-33. The Court departed slightly from our
precedent in finding that a petitioner’s diligence is a factor in determining the
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plausibility of the actual innocence claim. Compare id. at 1928, 1935-36
(including unexplained delay as a factor in determining the credibility of actual
innocence claim), with Lopez, 628 F.3d at 1231 (noting that “the lack of a
showing of due diligence in pursuing claims should not prevent the equitable
tolling of the statute of limitations for a petitioner who has presented a substantial
claim of actual innocence”).
In light of McQuiggin, petitioner here does not face a similar dilemma to
the “predicament” of the petitioner in Pace or to the petitioners in the other courts
finding that the Rhines good cause standard was met. If petitioner does have a
substantial actual innocence claim, as he contends, 11 under McQuiggin the
existence of such a claim will serve as an exception to the AEDPA statute of
limitations and he therefore does not have a legitimate concern that the claim will
be time barred in federal court. See Aplt. Reply Br. at 6 (conceding McQuiggin
“definitively established the availability of an innocence exception to the statute
of limitations”); McQuiggin, 133 S. Ct. at 1928. 12 McQuiggin thus eliminated
petitioner’s tight-timeline predicament, and he no longer has good cause within
11
We do not decide whether petitioner has a substantial innocence claim.
That determination is for the Oklahoma state court to decide in the first instance .
12
We focus solely on petitioner’s actual innocence claim with regard to the
need for a stay because the remaining claims are already untimely under AEDPA
and do not implicate the court’s concern in Pace and Rhines.
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the meaning of Rhines for his failure to first exhaust his claims in state court
before seeking federal court action.
McQuiggin’s factoring of diligence into the credibility of a petitioner’s
actual innocence claim—whether “it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence,” 133 S. Ct. at
1935 (quoting Schlup, 513 U.S. at 327)—creates no higher burden at the equitable
exception stage than the petitioner would face in proving actual innocence as
either a gateway, House v. Bell, 547 U.S. 518, 538 (2006) (“A petitioner’s burden
at the gateway stage is to demonstrate that more likely than not, in light of the
new evidence, no reasonable juror would find him guilty beyond a reasonable
doubt . . . .”), or a freestanding claim, id. at 555 (noting a hypothetical
freestanding innocence claim requires “more convincing proof of innocence than
[a gateway claim]”). A stay cannot shield petitioner from the consideration of
diligence with respect to the reliability of his actual innocence claim, whether a
gateway or freestanding claim. See Schlup, 513 U.S. at 332 (“[C]ourt[s] may
consider how the timing of the submission and the likely credibility of the affiants
bear on the probable reliability of . . . evidence [of actual innocence].”); Herrera,
506 U.S. at 421-23 (considering “11th hour” affidavits produced ten years after
conviction in deciding merits of actual innocence claim).
Petitioner also contends the potential application of the doctrine of laches
in state court and the ineffective assistance of post-trial counsel are other sources
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for good cause. However, if a state court determines petitioner is barred by the
doctrine of laches, the McQuiggin exception will still serve to alleviate concern
regarding timeliness of the federal petition. With respect to the possibility that a
laches determination could be a procedural bar as an adequate and independent
state ground for dismissal of the post-conviction application, this is a hurdle
petitioner would have to overcome whether or not a stay is granted. A Rhines
stay is only concerned with ensuring a federal petition remains timely filed while
a petitioner’s claims are exhausted in state court; it does not protect a federal
petition from the state’s possible “defense” of an adequate and independent state
ground. Likewise, petitioner’s concern that a laches determination may generate
factual findings regarding petitioner’s diligence to which the district court may
owe deference is irrelevant to the need for a stay. With or without a stay,
petitioner will still face the same burden to show a substantial actual innocence
claim, as discussed above. Assuming arguendo there are factual findings from the
state court regarding petitioner’s diligence, these will have the same effect in
federal court whether or not a stay is granted. Finally, even assuming ineffective
assistance of post-trial counsel could provide good cause in isolation, because
petitioner’s actual innocence claim is the gateway for consideration of these
otherwise untimely claims, the available McQuiggin exception to AEDPA’s
statute of limitations removes any need for a stay in this case.
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Given that grounds exist for an equitable exception to the AEDPA statute
of limitations, petitioner cannot demonstrate the good cause necessary to support
a Rhines stay and abeyance of this action, and the district court did not abuse its
discretion in so holding. We therefore need not reach the issue of whether
petitioner’s actual innocence claim is itself a freestanding constitutional claim or
merely a gateway for otherwise time-barred constitutional claims. See
McQuiggin, 133 S. Ct. at 1931 (“We have not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence.”);
Case, 731 F.3d at 1036 (same).
III
We AFFIRM the district court’s denial of the stay and its dismissal without
prejudice of petitioner’s habeas petition.
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Doe v. Jones, 12-6311
TYMKOVICH, J., dissenting in part and concurring in the judgment.
I concur with the ultimate disposition but write separately for three reasons.
First, I would decline to extend Rhines v. Weber to petitions that make only
unexhausted claims, which is the case here. Second, I read the first factor of the
Rhines test to require a showing of good cause for failure to exhaust one’s claims
in state court rather than a showing of good cause for a stay. Third, even if
Rhines does apply to entirely unexhausted petitions, Doe is not entitled to a stay
because we do not recognize actual innocence as an independent ground for
habeas review.
A. Rhines’ Applicability
The Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), held that, in
limited circumstances, a federal court may stay and hold in abeyance a habeas
petition when the petitioner has exhausted some but not all of his potential
claims (i.e. has filed a “mixed petition”). Rhines thus abrogated the “total
exhaustion” rule the Court had adopted in Rose v. Lundy, 455 U.S. 509 (1982), a
case predating the habeas reform Congress effected in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). In Rhines, the Supreme Court
expressed concern that, because of the interplay between AEDPA’s one-year
statute of limitations and the potential delays in both state and federal courts’
evaluations of pending petitions, a petitioner through no fault of his own could
find potentially meritorious claims time-barred. The Supreme Court solved this
problem by allowing district courts to accept the habeas petition and stay federal
court proceedings until after the petitioner has exhausted state court remedies.
The majority extends Rhines to apply also to petitions that make only
unexhausted claims. I disagree with that conclusion because (1) I read Rhines to
restrict itself to mixed petitions, and (2) applying Rhines to entirely unexhausted
petitions is contrary to principles of comity, federalism, and finality.
These conclusions flow from Rhines. There, the Supreme Court limited its
decision to the mixed nature of the petition at issue in that case. The Court did
not suggest in any way it was discarding its adherence to Rose v. Lundy for
entirely unexhausted petitions. In Lundy, the Court persuasively articulated its
rationale for enforcing a total exhaustion rule: to vindicate the state court’s
concurrent role in initially enforcing not only state but federal law as it applies to
prisoner petitions. Lundy, 455 U.S. at 518.
Congress, through AEDPA, further protected those interests by codifying
Lundy’s total exhaustion rule. 28 U.S.C. § 2254(b)(1)(a) (“An application for a
writ of habeas corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears that . . . the applicant has
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exhausted the remedies available in the courts of the state.”). 1 As the Rhines
Court explained,
Congress enacted AEDPA against the backdrop of
Lundy’s total exhaustion requirement. The tolling
provision in § 2244(d)(2) balances the interests served
by the exhaustion requirement and the limitation period
by protecting a state prisoner’s ability later to apply for
federal habeas relief while state remedies are being
pursued. AEDPA thus encourages petitioners to seek
relief from state courts in the first instance by tolling the
1-year limitations period while a properly filed
application for State post-conviction or other collateral
review is pending. This scheme reinforces the
importance of Lundy’s simple and clear instruction to
potential litigants: before you bring any claims to
federal court, be sure that you first have taken each one
to state court.
544 U.S. at 276–77 (citations and internal quotation marks omitted).
The Court also cautioned that federal court interference, even if the federal
court is merely staying the federal claim, can frustrate Congress’s attempt to
promote both comity and finality.
Stay and abeyance, if employed too frequently, has the
potential to undermine these twin purposes. Staying a
federal habeas petition frustrates AEDPA’s objective of
encouraging finality by allowing a petitioner to delay the
resolution of the federal proceedings. It also
undermines AEDPA’s goal of streamlining federal
habeas proceedings by decreasing a petitioner’s
1
The statute does provide two exceptions to this rule: 1) if “there is an
absence of available State corrective process” or 2) if “circumstances exist that
render such process ineffective to protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1)(b). Neither of those exceptions applies here.
-3-
incentive to exhaust all his claims in state court prior to
filing his federal petition.
Id. at 277.
These principles are still persuasive. Lundy encourages filing in state
court, and Rhines reaffirms that position, making clear that mixed petitions were
eligible for stays, but “only in limited circumstances.” Id. at 277. Extending
Rhines to unexhausted petitions undermines AEDPA’s goal of incentivizing
petitioners to press for relief in state court.
Thus, where a petitioner presents an unexhausted petition in federal court,
I would hold that federal courts should abide by the direction given to us in
Lundy: we should “defer action” until the state court has had the opportunity to
perform its review function. Lundy, 455 U.S. at 518.
The power of precedent is not the only reason for which we should decline
to extend Rhines. The Rhines Court articulated a clear policy rationale based on
the nature of mixed petitions—a petitioner was trapped between the “rock” of
choosing to present only exhausted claims in federal court and the “hard place” of
surrendering all exhausted and unexhausted claims to the risk that they would not
be adjudicated in federal court before the AEDPA statute of limitations ran. 2
2
In Rhines, the Court also expressed concern for the petitioner who relied
on the federal district court to determine if his claims had indeed been exhausted.
544 U.S. at 275. If the district court’s review took longer than a year, it would
have run out the clock, and the petitioner would not have the opportunity to return
to federal court after exhausting in state court. Id. That is not the case here. Doe
(continued...)
-4-
A petitioner with only unexhausted claims does not have to make that
choice. In fact, only one option has been available: petitioners must proceed to
state court to exhaust their claims, and AEDPA does not authorize the federal
courts to take any action until then.
The majority bases its conclusions on Pace v. DiGuglielmo, 544 U.S. 408
(2005). But that case does not state or imply that the Lundy rule should be
discarded. In fact, the logic of Lundy and Rhines teaches that the better analysis
is to dismiss unexhausted petitions without prejudice and wait for the state courts
to finish their work.
The majority worries that, if a petitioner goes directly to state court and the
state court determines the state action is improperly filed for some reason, the
petitioner will forever lose an opportunity for federal review. I think that an
illusory risk. In the rare circumstances such a scenario might occur, a petitioner
can, for example, still rely on equitable tolling or the miscarriage of justice
exception. Pace, 544 U.S. at 418; see also McQuiggin v. Perkins, 133 S. Ct.
1924, 1931 (2013) (distinguishing the miscarriage of justice exception and
equitable tolling). At least in Doe’s case, the majority agrees, finding that Doe
does not need a stay because, if his claims are meritorious, McQuiggin’s
miscarriage of justice exception will open the door to federal court.
2
(...continued)
recognizes that all of his claims are unexhausted.
-5-
Alternatively, petitioners can challenge a procedural bar. The Supreme
Court has held that, if “the State’s procedural requirements for presenting [a
petitioner’s] federal claims [have] deprived the state courts of an opportunity to
address those claims in the first instance,” the federal courts should not allow that
state law procedural bar to prohibit federal review when the petitioner can show
both cause for the default as well as prejudice attributable to the alleged violation
of federal law. Coleman v. Thompson, 501 U.S. 722, 732 (1991); see also
Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013) (applying the same cause and
prejudice exception after the enactment of AEDPA). Given that the law provides
a petitioner in these circumstances an opportunity for federal review, no reason
exists to believe that the Court has abrogated the Lundy rule for entirely
unexhausted petitions.
While the circuits are split, I believe Lundy is good law and applies here.
Compare Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a
district court determines that a habeas petition contains only unexhausted claims,
it need not inquire further as to the petitioner’s intentions. Instead, it may simply
dismiss the habeas petition for failure to exhaust.”), with Heleva v. Brooks, 581
F.3d 187, 191 (3d Cir. 2009) (“[T]he Supreme Court has indicated that a
petitioner may file a ‘protective’ petition meriting a stay under Pace even where
only unexhausted claims are at issue.”).
-6-
In sum, I would affirm dismissal of Doe’s petition because I would decline
to extend Rhines to petitions making only unexhausted claims.
B. Rhines Analysis
Even if Rhines applied to unmixed petitions, I would decline to issue a stay
here, but I would do so for different reasons than the majority.
I read the first factor of the Rhines test to require a different inquiry than
the majority conducts here. The majority has determined that Doe cannot show
good cause for a stay because a stay is not necessary to preserve Doe’s
opportunity to be heard in federal court. But I read Rhines to inquire whether
Doe has shown good cause for failure to exhaust his state court remedies, not
good cause for a stay.
In Rhines, the Supreme Court expressly defined the first factor of its test as
“good cause for his failure to exhaust.” 544 U.S. at 277 (emphasis added); see
also id. (“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.”). The Court indicated that it so
limited the circumstances in which we should grant a stay to avoid frustrating
AEDPA’s purposes of promoting finality and encouraging petitioners to seek
relief from state courts. Id. at 276–77.
-7-
In Pace, the Court used slightly different language, writing, “[a]
petitioner’s reasonable confusion about whether a state filing would be timely
will ordinarily constitute ‘good cause’ for him to file in federal court. Rhines,
544 U.S. at 278 (‘[I]f the petitioner had good cause for his failure to exhaust
. . .’).” Pace, 544 U.S. at 416.
But I do not read Pace to abrogate the Rhines test. Although Pace
discussed good cause for filing in federal court, the Pace Court’s inclusion of the
relevant quotation from Rhines clarifies any ambiguity. Further, because Pace
was published less than a month after Rhines, I see no reason to believe that, in
that short time, the Court changed its mind about the nature of this test.
Determining whether the petitioner has shown good cause for failing to exhaust
state court remedies before filing a habeas petition in federal court is still the first
step of a Rhines analysis. See Fairchild v. Workman, 579 F.3d 1134, 1153 (10th
Cir. 2009) (citing Rhines and Pace for the proposition that a petitioner “should be
permitted to demonstrate that he had good cause for failing to exhaust the
claim.”). 3
3
Although the majority is not alone in having interpreted the first factor of
the Rhines test to require good cause for a stay, the majority of circuits that have
taken up this issue, even post-Pace, have limited their inquiry to whether there
was good cause for failure to exhaust. Compare Heleva, 581 F.3d at 192 (reading
Pace to consider “‘good cause’ for a stay”) with Blake v. Baker, 745 F.3d 977,
981 (9th Cir. 2014) (interpreting both Rhines and Pace to require showings of
good cause for failure to exhaust); Elmore v. Ozmint, 661 F.3d 783, 847 (4th Cir.
2011) (applying “Rhines’s requirement of good cause for the failure to exhaust”);
(continued...)
-8-
I therefore disagree with the majority’s assertion that, because Doe may use
McQuiggin’s actual innocence exception to return to federal court, he cannot
show good cause; the necessity of a stay has no bearing on whether Doe had good
cause for his failure to exhaust. Instead, I conclude that we cannot assess whether
Doe can satisfy Rhines’s good cause requirement without a remand.
Such a remand is unnecessary here, however. Even if Rhines applies, I find
determinative the question that the majority has reserved: whether an actual
innocence claim is a freestanding basis for habeas relief.
Doe has brought before us a total of five habeas claims. He all but
concedes that four of his five claims should have been filed within one year of the
discovery of their factual predicates in 2008—considerably more than a year
before he filed this action. See 28 § U.S.C. 2254(e)(2). Thus, he has requested a
stay to stop the clock on his one arguably timely claim: his actual innocence
claim, which was ostensibly filed within one year of the discovery of new
evidence in 2011. An actual innocence claim, however, is not a freestanding
basis for habeas relief.
3
(...continued)
Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir. 2011) (holding that belatedly
disclosed Brady materials may constitute good cause for failure to exhaust);
Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007) (holding that petitioner failed
to show good cause for failure to exhaust); Neville v. Dretke, 423 F.3d 474, 480
(5th Cir. 2005) (holding that the petitioner points to no good cause for failure to
exhaust); Rhines v. Weber, 409 F.3d 982, 983 (8th Cir. 2005) (remanding for
findings as to whether the petitioner “had good cause for failing to exhaust the
claim”).
-9-
Although the Supreme Court has “not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual innocence,”
McQuiggin, 133 S. Ct. at 1931, we have. Our cases definitively foreclose
independent actual innocence claims in this circuit. For example, in Stafford v.
Saffle, we identified that the Supreme Court has “strongly suggest[ed]” that an
actual innocence claim is not “by itself, an adequate basis for habeas relief.” 34
F.3d 1557, 1561 (10th Cir. 1994) (citing Herrera v. Collins, 506 U.S. 390, 400
(1993)). Then, to remove any doubt, we held in LaFevers v. Gibson that “an
assertion of actual innocence, although operating as a potential pathway for
reaching otherwise defaulted constitutional claims, does not, standing alone,
support the granting of the writ of habeas corpus.” 238 F.3d 1263, 1265 n.4 (10th
Cir. 2001); see also Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)
(“[T]he claim of innocence is merely the means by which an otherwise barred
constitutional error affecting the fairness of the petitioner’s trial can be heard.”);
Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999); Castro v. Oklahoma, 71
F.3d 1502, 1511 (10th Cir. 1995); Brecheen v. Reynolds, 41 F.3d 1343, 1357
(10th Cir. 1994).
In addition to fidelity to our precedent, I would reaffirm the rule set forth
in LaFevers because, as the Supreme Court and this court have repeatedly
articulated, acknowledging a freestanding actual innocence claim clashes with the
purpose of the habeas doctrine. See Herrera, 506 U.S. at 400 (“[F]ederal habeas
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courts sit to ensure that individuals are not imprisoned in violation of the
Constitution―not to correct errors of fact.”).
For these reasons, rather than the reasons the majority has articulated, I
would affirm the district court’s decision to dismiss Doe’s petition without
prejudice.
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