Opinion
4:24cv276/AW/ZCB
11-27-2024
JEFFREY BAILEY, Petitioner, v. RICKY DIXON, Respondent.
REPORT AND RECOMMENDATION
Zachary C. Bolitho United States Magistrate Judge.
Petitioner, Jeffrey Bailey, filed a habeas corpus petition under 28 U.S.C. § 2254. (Doc. 1). Respondent has moved to dismiss, arguing that the petition is unexhausted. (Doc. 10). Petitioner opposes dismissal and asks the Court to stay this case until he exhausts in state court. (Doc. 15). For the reasons below, Respondent's motion to dismiss should be granted and this case dismissed without prejudice.
I. Background
In November of 2018, Petitioner pleaded no contest in the Jefferson County Circuit Court to two counts of lewd and lascivious molestation and one count of video voyeurism. (Doc. 11-2). The trial court accepted the plea and sentenced Petitioner to a total term of twenty years' imprisonment followed by fifteen years of probation. (Doc. 14 at 9-28).
Petitioner appealed, and the First District Court of Appeal (“First DCA”) affirmed on April 3, 2020. Bailey v. State, 292 So.3d 737 (Fla. 1st DCA 2020). Petitioner did not seek further direct appellate review.
On June 13, 2021, Petitioner filed a motion for state postconviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure. (Doc. 11-6). The trial court denied the motion, and Petitioner appealed. (Docs. 11-7, 11-8, 11-9). That appeal is still pending in the First DCA. (Doc. 1 at 9-12, 18; Doc. 10 at 4).
Petitioner filed this federal habeas case on July 11, 2024. (Doc. 1 at 19-20). His petition presents the same claim that is currently pending review in the First DCA. Compare Doc. 1 at 9-12, with Doc. 11-9.
Respondent has moved to dismiss, arguing Petitioner has not exhausted his available state court remedies because his claim is pending review in the First DCA. (Doc. 10 at 5-6). For his part, Petitioner concedes he filed this habeas case prior to fully exhausting his claim. (Doc. 1 at 12, 18; Doc. 15). He explains that he filed his federal petition early as a protective measure because once the First DCA issues a decision, he calculates he would have only seventeen days left of the federal one-year statute of limitations period under 28 U.S.C. § 2244(d). (Doc. 15 at 2). Petitioner asks the Court to stay this federal proceeding, rather than dismiss it, until the state appeal reaches final disposition as authorized in Rhines v. Weber, 544 U.S. 269 (2005). (Id.).
II. Discussion
Let's start by summarizing the exhaustion requirement for § 2254 habeas cases. That requirement is found in § 2254(b)(1), which provides that 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-(A) the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). This means that a state prisoner must give the state courts “one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Only then may a prisoner present claims to a federal court in a habeas petition.
There are two exceptions to the exhaustion requirement. One is where “there is an absence of available State corrective process.” 28 U.S.C. § 2254(b)(1)(B)(i). The second is where “circumstances exist that render such process ineffective to protect the [petitioner's] rights.” Id., § 2254(b)(1)(B)(ii). Petitioner does not argue that either exception applies here.
If a petitioner has not exhausted all claims presented in his § 2254 petition and he has not satisfied one of the exceptions to exhaustion, then “the district court should dismiss the petition without prejudice to allow exhaustion.” Ward v. Hall, 592 F.3d 1144, 1156 (11th Cir. 2010). Here, there is no dispute that Petitioner's sole habeas claim is unexhausted. The state court record bears that out. Petitioner presented his habeas claim in his Rule 3.850 motion and on appeal of the trial court's denial of that motion. Compare Doc. 1 at 9-1, with Doc. 11-6 and Doc. 11-9. There is no dispute that the appeal is currently pending in the First DCA.
This leaves the question of whether Petitioner has shown that he qualifies for a stay, rather than dismissal, under Rhines. The answer to that question is no. Here are the reasons why.
In Rhines, the Supreme Court recognized that a federal court may stay a habeas case, instead of dismissing it, where the habeas petition contains a mix of exhausted and unexhausted claims and certain “limited circumstances” exist. 544 U.S. at 276. Those limited circumstances are: (1) the petitioner has shown good cause for not exhausting his claims in state court; (2) the unexhausted claims are not plainly meritless; and (3) the petitioner has not engaged in abusive litigation tactics or intentional delay. Id. at 277-78.
Petitioner's habeas petition is not mixed; rather, it presents only unexhausted claims. The Eleventh Circuit has not extended Rhines, in a published opinion, to an unmixed petition containing only unexhausted claims.But in an unpublished opinion, the Eleventh Circuit has instructed district courts to consider a stay under Rhines even when the petition presents only unexhausted claims. Claudio v. Secy, Fla. Dep't of Corr., 578 Fed.Appx. 797, 799-800 (11th Cir. 2014).
Other circuit courts have extended Rhines to habeas petitions containing only unexhausted claims. Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014); Heleva v. Brooks, 581 F.3d 187, 192 (3d Cir. 2009).
The Court does not rely on unpublished opinions as binding precedent but cites them when the Court finds them persuasive on a particular point. Fed. R. App. P. 32.1; 11th Cir. R. 36-2; McNamara v. GEICO, 30 F.4th 1055, 1060-61 (11th Cir. 2022) (reiterating the “elemental point” that unpublished opinions may be cited as persuasive authority but are not considered binding precedent).
Assuming that a stay is available for an entirely unexhausted petition, Petitioner still does not qualify for a stay because he has not shown good cause for failing to exhaust his claim in state court before he filed his federal petition. Petitioner alleges he filed his federal petition as a protective measure because he calculates he will have only seventeen days left on his federal statute of limitations clock once the First DCA decides his postconviction appeal.
The Supreme Court has recognized that “good cause” for filing a “protective” habeas petition may exist where a petitioner alleges “reasonable confusion” about whether a state filing would toll the federal limitations period and a dismissal without prejudice could result in a subsequent petition being barred from federal habeas review. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005).
But here, there is no confusion about whether Petitioner's state postconviction appeal tolls the federal limitations clock. Petitioner knew he had time left on the federal clock when he filed his Rule 3.850 motion. He knows that his Rule 3.850 motion was deemed timely in state court, and he knows that the federal clock will remain stopped until his state postconviction appeal is decided. Further, Petitioner has demonstrated that he knows there will be limited time to file a habeas petition in federal court once the state appeal is decided. A dismissal of Petitioner's habeas petition without prejudice would not result in a subsequent petition being barred from federal habeas review, so long as Petitioner promptly re-files his habeas petition after the First DCA decides his postconviction appeal.
Because Petitioner has not shown good cause for his failure to exhaust his claim first in state court, the qualifying circumstances for a stay and abeyance under Rhines are not present. The Court, therefore, should dismiss the petition without prejudice.
See, e.g., Jenkins v. Dixon, 4:23cv154, 2024 WL 4757626 (N.D. Fla. Oct. 1, 2024), adopted by 2024 WL 4752134 (N.D. Fla. Nov. 10, 2024) (dismissing without prejudice the petitioner's unexhausted petition and declining to stay the habeas case where the petitioner did not establish good cause for failing to exhaust his claims first in state court); Claudio v. Sec'y, Fla. Dep't of Corr., 2024 WL 4264249, at *2 n.3 (M.D. Fla. Sept. 23, 2024) (same holding); Allen v. Inch, No. 3:20cv5989, 2021 WL 2169481, at *2-3 & n.4 (N.D. Fla. May 14, 2021), adopted by 2021 WL 2165210 (N.D. Fla. May 27, 2021) (acknowledging that a stay, rather than dismissal, of a habeas petition would be appropriate if the dismissal would result in a subsequent petition being barred from federal review, but explaining that no such risk was present in petitioner's case).
III. Conclusion
For the reasons above, this matter should be dismissed without prejudice because Petitioner did not first exhaust his claim in state court before presenting it in his federal habeas petition.
IV. Certificate of appealability
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that “[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant,” and if a certificate is issued “the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” 28 U.S.C. § 2254 Rule 11(a). A timely notice of appeal must still be filed, even if the court issues a certificate of appealability. 28 U.S.C. § 2254 Rule 11(b).
“Section 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.'” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). “At the COA stage, the only question is whether the applicant has shown that ‘jurists of reason could disagree with the district court's resolution of his [or her] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.'” Buck v. Davis, 580 U.S. 100, 115 (2017) (citing Miller-El, 537 U.S. at 327). Petitioner cannot make that showing in this case. Therefore, the undersigned recommends denying a certificate of appealability.
The second sentence of Rule 11(a) provides: “Before entering the final order, the court may direct the parties to submit arguments on whether a certificate should issue.” Thus, if either party wishes to submit arguments on the issue of a certificate of appealability that party may do so in an objection to this Report and Recommendation.
Accordingly, it is respectfully RECOMMENDED that:
1. Respondent's motion to dismiss (Doc. 10) be GRANTED.
2. The habeas petition (Doc. 1) be DISMISSED without prejudice for lack of exhaustion.
3. A certificate of appealability be DENIED.
Notice to the Parties
Objections to these proposed findings and recommendations must be filed within fourteen days of the date of the Report and Recommendation. Any different deadline that may appear on the electronic docket is for the Court's internal use only and does not control. An objecting party must serve a copy of the objections on all other parties.
A party who fails to object to the magistrate judge's findings or recommendations contained in a report and recommendation waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See 11th Cir. Rule 3-1; 28 U.S.C. § 636.