Gilbert W. King v. Alexis Chase , 384 F. App'x 972 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14101 ELEVENTH CIRCUIT
JUNE 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00144-CV-WLS-1
GILBERT W. KING,
Petitioner-Appellant,
versus
ALEXIS CHASE, Warden,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(June 30, 2010)
Before MARCUS, WILSON and MARTIN, Circuit Judges.
PER CURIAM:
Gilbert W. King, a Georgia prisoner serving an 18-year sentence for child
molestation, appeals pro se the district court’s partial denial of his 28 U.S.C. §
2254 habeas corpus petition. King’s § 2254 petition raised numerous grounds,
most of which alleged ineffective assistance of counsel (“grounds 1-9 and 11”),
and one of which alleged that he was convicted in violation of his due process
rights (“ground 10”). The district court determined that grounds 1-9 and 11 were
without substantive merit, and denied King’s petition in this respect. When
assessing ground 10, the district court found the claim to be unexhausted, and
found that the government did not waive exhaustion, despite the government’s
express assertion in an earlier pleading that it “d[id] not contest exhaustion.” The
court accordingly declined to consider the merits of ground 10, and dismissed
King’s petition without prejudice in this respect. Subsequently, we granted a
certificate of appealability (“COA”) as to the following issue:
Whether the district court erred when it denied ten of
King's claims and dismissed one claim without prejudice,
rather than dismissing his entire 28 U.S.C. § 2254
petition without prejudice, pursuant to Rose v. Lundy,
455 U.S. 509, 519-20, 102 S. Ct. 1198, 1203-1205,
71 L. Ed. 2d 379 (1982).
On appeal, King argues pro se that the district court erred in denying his §
2254 petition in part and dismissing it in part, because his petition was a “mixed”
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petition containing both exhausted and unexhausted claims.1 After careful review,
we vacate the judgment of the district court and remand for further proceedings.
When we examine a district court’s denial of a § 2254 habeas petition, we
review questions of law and mixed questions of law and fact de novo, and findings
of fact for clear error. Rhode v. Hall, 582 F.3d 1273, 1279 (11th Cir. 2009). We
do not review issues that are outside the scope of the COA. Jordan v. Sec’y, Dep’t
of Corr., 485 F.3d 1351, 1356 (11th Cir. 2007). However, we will address issues
that must be necessarily decided before considering the issues explicitly presented
in the COA. See Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1258 (11th
Cir. 2002) (construing the COA to present the threshold issue of procedural default
finding as well as the substantive due process issue expressly presented).
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), a federal habeas petitioner must first
exhaust state-court remedies. 28 U.S.C. § 2254(b)(1)(A). A petitioner exhausts a
claim when he affords the state habeas court “a full and fair opportunity to address
and resolve the claim on the merits.” Kelley v. Sec’y for the Dep’t of Corr., 377
F.3d 1317, 1343 (11th Cir. 2004) (quotation omitted).
1
Because King is proceeding pro se, we construe his brief liberally. See Alba v.
Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).
3
The exhaustion requirement is not jurisdictional, but rather, is a procedural
rule based in comity. Thompson v. Wainwright, 714 F.2d 1495, 1503-04 (11th
Cir. 1983). As a result, the state either may waive exhaustion expressly, or
impliedly by failing to raise the issue or arguing that exhaustion would be futile.
Id. at 1501. The district court, in turn, has discretion to accept or reject the waiver.
Id. at 1509-10 (remanding because the district court did not specify the basis for
rejecting the waiver). However, when the state waives exhaustion, the district
court may only invoke the exhaustion bar sua sponte when doing so would serve
an important federal interest. Esslinger v. Davis, 44 F.3d 1515, 1524 (11th Cir.
1995). Although waiver is generally an indication that there is no important
federal interest, such an interest can occur when a case “presents an issue on which
an unresolved question of fact or of state law might have an important bearing,”
and a federal district court should “insist on complete exhaustion to make sure that
it may ultimately review the issue on a fully informed basis.” Id. at 1524 n.34.
A “mixed” habeas petition is one that includes both exhausted and
unexhausted claims. Pliler v. Ford, 542 U.S. 225, 227 (2004). In Rose v. Lundy,
455 U.S. 509, 510 (1982), the Supreme Court ruled that, when confronted with
mixed petitions, the district court must dismiss the petition in its entirety, “leaving
the prisoner with the choice of returning to state court to exhaust his claims or of
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amending or resubmitting the habeas petition to present only exhausted claims to
the district court.” In imposing this “total exhaustion rule,” the Supreme Court
noted that it would have the benefits of “encourag[ing] state prisoners to seek full
relief first from the state courts” and “reliev[ing] the district courts of the difficult
if not impossible task of deciding when claims are related.” Id. at 518-19. But
while dismissal of mixed petitions is the ordinary rule, “when it is obvious that the
unexhausted claims would be procedurally barred in state court due to a state-law
procedural default, [a district court] can forego the needless ‘judicial ping-pong’
and just treat those claims now barred by state law as no basis for federal habeas
relief.” Snowden v. Singletary, 135 F.3d 732, 736-37 (11th Cir. 1998).
In addition to codifying the total exhaustion requirement, AEDPA created a
one-year statute of limitations for federal habeas corpus petitions. 28 U.S.C. §
2244(d)(1); see also Pub. L. 104-132, § 101, 110 Stat. 1214, 1217 (1996).
Although the limitations period is tolled while state proceedings are pending, it
does not continue to toll while the federal petition is pending. Duncan v. Walker,
533 U.S. 167, 181-82 (2001). The Supreme Court recognized that the passage of
AEDPA created a problem in that “petitioners who come to federal court with
‘mixed’ petitions run the risk of forever losing their opportunity for any federal
review of their unexhausted claims” because petitioners cannot control when
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district courts will resolve the exhaustion question, rendering numerous petitions
time-barred when re-filed in federal court. Rhines v. Weber, 544 U.S. 269, 275
(2005). To address potential time-bar problems, the Supreme Court held in Rhines
that district courts have discretion to employ, in limited circumstances, “stay and
abeyance” procedures to hold a § 2254 petition in abeyance while the petitioner
exhausts his previously-unexhausted claims. Id. at 275-77. In particular, “stay and
abeyance is only appropriate” if: (1) the petitioner had good cause for his failure to
exhaust his claims; (2) the unexhausted claims are not plainly meritless; and (3)
there is no indication that the petitioner engaged in abusive litigation practices or
intentional delay. Id. at 277-78. The Supreme Court further observed that if these
conditions were met, “it likely would be an abuse of discretion for a district court
to deny a stay and to dismiss a mixed petition.” Id. at 278. Conversely, if the
district court determines that a stay is inappropriate, it should allow the petitioner
to delete the unexhausted claims and proceed with the exhausted claims if
dismissal would “impair the petitioner’s right to obtain federal relief.” Id.
Since Rhines, we have ruled that, when a district court is confronted with a
mixed § 2254 petition, the ordinary disposition is to either dismiss it in its entirety,
or grant a stay and abeyance. Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir.
2007). We have construed Rhines to require that district courts: (1) make findings
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as to whether a stay and abeyance is warranted; and (2) if a stay is unwarranted,
offer petitioners a choice to proceed with only the exhausted claims. Thompson v.
Sec’y for the Dep’t of Corr., 425 F.3d 1364, 1366 (11th Cir. 2005) (vacating and
remanding to consider whether a stay was warranted because the district court
offered petitioner the choice to delete his unexhausted claims before making this
threshold finding).
In this case, the district court erred in basing its finding that King’s claim
was unexhausted on its misperception that the state did not waive exhaustion, and
as a result, failed to make threshold findings as to whether exhaustion remained at
issue. In addition, the district court erred by dismissing King’s § 2254 petition
only in part while proceeding to address the merits of the exhausted claims,
contrary to Lundy and its progeny in the Supreme Court and our circuit.
Accordingly, we vacate the judgment of the district court, and remand with
instructions to make the following findings before applying the exhaustion
doctrine: (1) whether it is necessary to sua sponte dismiss ground 10 as
unexhausted notwithstanding the government’s waiver; and (2) if dismissal is
necessary, whether it should hold King’s petition in abeyance pending exhaustion
of ground 10, or dismiss his entire § 2254 petition without prejudice and allow him
to proceed on only his exhausted claims. The court should also consider whether a
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procedural default exists that would render exhaustion futile, and if so, whether the
court should address ground 10 on its merits.
VACATED AND REMANDED.
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