Opinion
Civil No. 18-0542 (JRT/BRT)
09-10-2018
Bryan Blocker, Petitioner, v. Eddie Miles, Warden MCF-Stillwater, Respondent.
REPORT AND RECOMMENDATION
Petitioner Bryan Blocker, a Minnesota state prisoner, filed a petition for a writ of habeas corpus in February 2018 challenging the validity of his conviction. See 28 U.S.C. § 2254. By his own admission, Blocker had not yet exhausted claims of ineffective assistance of counsel and appellate counsel raised in the habeas corpus petition. (See Doc. No. 1, Petition 7.) Federal district courts "may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims." Rhines v. Weber, 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509 (1982)); accord 28 U.S.C. § 2254(b). By filing a petition that included a clearly unexhausted claim, Blocker had filed a "mixed petition" of the kind described by Rhines.
It is not altogether clear that Blocker has exhausted the other ground (a due-process claim) raised in his habeas corpus petition, either. The Court assumes, for purposes of this Report and Recommendation, that the claim is exhausted. This Court's recommendation of dismissal without prejudice applies in either event.
Blocker therefore requested a stay of these proceedings pursuant to Rhines in order to return to state court, present his unexhausted claims, and then proceed with this petition. The Court denied his request. Blocker did not show good cause for the imposition of a stay under Rhines, and he could (and still may) prosecute his claims in state court without prejudice to his rights to later seek federal habeas corpus relief in a future habeas action, even in the absence of a Rhines stay. (See Doc. No. 13, Report and Recommendation; Doc. No. 17, Order adopting Report and Recommendation.)
The limitations period for Blocker to seek federal habeas corpus relief is stayed during the pendency of state post-conviction proceedings related to the judgment at issue. See 28 U.S.C. § 2244(d)(2). Blocker is therefore encouraged to commence any such proceedings without delay. --------
Over a month after Blocker's request for a Rhines stay was rejected, and over six months after Blocker filed his habeas petition, this matter remains at square one. Before this Court is a mixed petition stating both exhausted and unexhausted claims. Blocker cannot prosecute such a petition. He may voluntarily dismiss his unexhausted ineffective-assistance claims, thereby likely forfeit the ability to ever present those claims on federal habeas review, see 28 U.S.C. § 2244(b), and proceed with his exhausted claim alone, but Blocker has evinced no willingness to do so. Accordingly, the only remaining alternative available to this Court is dismissal of Blocker's entire petition without prejudice. See Lundy, 455 U.S. at 518 - 20. Blocker may return to federal court, if necessary, after the conclusion of state post-conviction proceedings to prosecute any claim fairly presented to the Minnesota Supreme Court and not otherwise barred, procedurally or otherwise.
RECOMMENDATION
Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that the petition for a writ of habeas corpus of petitioner Bryan Blocker (Doc. No. 1) be DISMISSED WITHOUT PREJUDICE for failure to fully exhaust state remedies. Dated: September 10, 2018
s/ Becky R . Thorson
BECKY R. THORSON
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals. Under Local Rule 72.2(b)(1), "a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy" of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in Local Rule 72.2(c).