David J. Gherity v. Lori Swenson ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3612
___________
David J. Gherity, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Lori Swenson, Hennepin County * District of Minnesota.
Probation; Michael Hatch, Minnesota *
Attorney General, * [UNPUBLISHED]
*
Appellees. *
___________
Submitted: March 7, 2006
Filed: March 10, 2006
___________
Before ARNOLD, BYE, and SMITH, Circuit Judges.
___________
PER CURIAM.
David J. Gherity, who filed this habeas petition while his state court motion for
postconviction relief was still pending, appeals the district court's order dismissing
his 28 U.S.C. § 2254 petition for incomplete exhaustion of state remedies. We
granted a certificate of appealability on whether the district court should have stayed
the habeas petition pending exhaustion. In light of the Supreme Court's recent
holding in Rhines v. Weber, 125 S. Ct. 1528, 1534-35 (2005), that a district court has
discretion to stay a habeas petition to allow the petitioner to exhaust his claims in
state court, we believe the district court should analyze each unexhausted claim to
determine whether Mr. Gherity had good cause for failing to exhaust it, whether such
unexhausted claims are potentially meritorious, and whether he engaged in abusive
litigation tactics. See Akins v. Kenney, 410 F.3d 451, 453-56 (8th Cir. 2005); Rhines
v. Weber, 409 F.3d 982, 983 (8th Cir. 2005) (per curiam). Because Mr. Gherity
completed his sentence after he filed his federal habeas petition, if a stay is not
granted, the state court's delay will have deprived him of the opportunity to challenge
his criminal conviction.
Accordingly, we reverse the district court's dismissal of Mr. Gherity's petition
and remand for the district court to determine whether to exercise its discretion to
grant a stay pending exhaustion in this case.
______________________________
-2-