Opinion
Case No. CV 04-001-S-LMB.
November 30, 2004
ORDER
Currently before the Court in this habeas corpus matter is Respondent's Motion to Dismiss Without Prejudice, in which Respondent asks this Court to dismiss this action because Petitioner has a successive post-conviction petition pending in the state appellate courts. (Docket No. 21.) Petitioner has filed a Memorandum in Opposition, requesting that the Court hold the case in abeyance pending resolution of the state court matter. (Docket No. 26.) Petitioner has also filed motions for entry of a default judgment. (Docket Nos. 17 18.)
The parties have consented to the jurisdiction of a United States Magistrate Judge, in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Accordingly, the Court enters the following Order.
I. BACKGROUND
After a jury trial in state district court, Petitioner was convicted of one count of kidnapping and one count of lewd conduct with a minor. (State's Lodging A-2, pp. 209-10.) The district court imposed concurrent fixed life sentences for each count. (State's Lodging A-2, pp. 319-22.) Petitioner's direct appeal was affirmed by the Idaho Court of Appeals, and the Idaho Supreme Court denied review. (State's Lodgings B-6 B-9.) Petitioner filed a petition for writ of certiorari in the United States Supreme Court, which was denied.
Petitioner thereafter filed a state petition for post-conviction relief, which was dismissed upon the state's motion. (State's Lodging C-1, pp. 24-82; State's Lodging C-1, pp. 182-213.) The Idaho Court of Appeals affirmed on appeal, and the Idaho Supreme Court denied a petition for review on December 19, 2003. (State's Lodgings D-4 D-7.)
On January 2, 2004, Petitioner initiated the current federal habeas corpus action, raising 12 claims of constitutional error. (Docket No. 1.) The Court conducted an initial review of the Petition and ordered the Clerk to serve the Petition on Respondent, who responded with a Motion for Partial Summary Dismissal. (Docket No. 3.) While that Motion was pending, Petitioner lodged an Amended Petition with the Court, raising additional claims of constitutional error. (Docket No. 14.)
Respondent has now filed the instant Motion to Dismiss Without Prejudice, alleging that the matter should be dismissed because Petitioner has an appeal pending from the dismissal of a successive post-conviction petition. (Docket No. 21.) Petitioner has responded, and the matter is ripe for decision. (Docket No. 26.)
II. MOTION TO DISMISS
In seeking dismissal, Respondent does not contend that Petitioner may still be able to exhaust his claims by presenting them on the merits to the Idaho Supreme Court. Rather, Respondent acknowledges that it is too late for Petitioner to raise his claims properly in state court, but he contends that the Court must dismiss this case because Petitioner's pending collateral appeal could result in the reversal of the original judgment of conviction on some other ground, thereby mooting the federal case. (Docket No. 22, pp. 2-3; Docket No. 27, p. 2.) In support, Respondent relies upon the pre-AEDPA case of Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983).
In his Reply Brief, Respondent mentions in passing that most of Petitioner's claims are "deemed unexhausted" and procedurally defaulted. (Docket No. 27, p. 2.) Taken in the context of Respondent's Motion, the Court believes that Respondent means that although Petitioner's state court remedies have technically been exhausted with respect to the claims in the Amended Petition, they were not properly exhausted and are now procedurally defaulted. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999); see also Engels v. Isaac, 456 U.S. 107, 125 n. 28 (1982) (noting that the exhaustion requirement "refers only to remedies still available at the time of the federal petition"). In other words, the Amended Petition is a fully exhausted petition, but one that contains procedurally defaulted claims.
In Sherwood, the petitioner filed a request for counsel and access to transcripts in state court while his direct appeal was pending. Id. at 633. After those initial requests were denied, but while his state appeal was still pending, Sherwood filed a federal habeas petition, requesting the district court to order the state to supply him with the assistance of counsel and transcripts. Id. The Ninth Circuit Court of Appeals held that because Sherwood still had an opportunity to raise these claims in the state courts, either in a new motion in the state court of appeals or in a post-conviction petition, they were not yet exhausted for purposes of federal review, and the habeas petition must be dismissed without prejudice. Id. at 634. In reaching that conclusion, the Ninth Circuit noted, in dicta, that even if Sherwood had fully exhausted his claims, his federal petition would have been premature while his direct appeal was still pending:
When, as in the present case, an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be challenged in the writ of habeas corpus has been finally settled in the state courts.Id. at 634.
Respondent takes this statement to mean that any time a petitioner has an action pending in state court that could result in the reversal of his judgment of conviction, a federal court must dismiss the petition without prejudice, even if the petitioner has exhausted his state court remedies with respect to all of the claims in the petition. In light of subsequent developments in the law, the Court does not believe that Sherwood reaches quite so far.
It is now clear that as an alternative to dismissal a federal court has the inherent authority to hold a petition that contains only exhausted claims in abeyance while state court matters are proceeding. See Calderon v. United States District Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) (recognizing the "stay and abey" procedure); see also Greenwalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997). Indeed, under certain circumstances, a court abuses its discretion when it fails to hold an exhausted petition in abeyance. See Fetterly v. Paskett, 997 F.2d 1295, 1301 (9th Cir. 1993) (holding that the lower court committed reversible error when it failed to stay federal proceedings while the petitioner pursued a newly discovered claim through the state courts). Because Respondent does not contend that Petitioner has failed to satisfy the exhaustion requirement, instead alleging only that the pending collateral state court action might moot the federal proceedings on some other ground, a stay is a viable option in this case.
Therefore, the Court has balanced the interests and has concluded that they favor a brief stay while the state court appeal is pending. See CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962). An order staying the case would address Respondent's apparent concerns of conserving judicial resources and deferring to the state courts while they consider Petitioner's pending appeal. If Petitioner's convictions are reversed and the federal matter becomes moot, then no additional resources will be expended. In addition, a stay would preserve Petitioner's right to pursue a federal habeas action, which, if the Court were to dismiss this case, would be in jeopardy because of AEDPA's one-year statute of limitations. See 28 U.S.C. § 2244(d)(1); see also Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that a pending federal habeas petition does not statutorily toll the limitations period). Finally, because the state court matter is currently on appeal, it is likely that it will be resolved quickly.
Based upon the foregoing, the Court will enter an order staying federal proceedings until Petitioner's current appeal in Idaho Supreme Court Case No. 30771 is resolved. Petitioner is ordered to file quarterly reports, informing the Court of the status of the state court matter, with the first report due 10 days from the date of this Order. The parties shall immediately notify the Court once the matter is resolved. If Petitioner does not receive relief, the stay will be lifted and this case will proceed.
III. OTHER MOTIONS
Before Petitioner lodged his Amended Petition, Respondent filed a Motion for Partial Summary Dismissal, in which he sought an order dismissing most of the claims in the original Petition. (Docket No. 11.) Petitioner's submission of an Amended Petition, and the Court's entry of an order staying this matter, has rendered Respondent's Motion moot. In the event that Petitioner does not receive relief in state court and the stay is lifted, Respondent may choose, if he wishes, to incorporate his Brief in Support of his Motion for Partial Summary Dismissal by reference into any new motion, brief, or response filed in this case.
Petitioner has also filed two motions seeking the entry of a default judgment. (Docket Nos. 17 18.) Respondent is actively defending against this action and a default judgment is not warranted. Petitioner's motions will be denied.
IV. ORDER
NOW THEREFORE IT IS HEREBY ORDERED that Respondent's Motion to Dismiss Without Prejudice (Docket No. 21) is DENIED.
IT IS FURTHER ORDERED that this case is stayed pending resolution of Petitioner's current appeal in Idaho Supreme Court Case No. 30771. Petitioner is ordered to file quarterly status reports, with the first report due within 10 days of the date of this Order. The parties shall notify the Court immediately upon the termination of the state court matter.
IT IS FURTHER ORDERED that Petitioner's Motion for Default Judgment (Docket No. 17) and Petitioner's Motion for Entry of Default (Docket No. 18) are DENIED.
IT IS FURTHER ORDERED that Respondent's Motion for Partial Summary Dismissal (Docket No. 11) is DENIED as MOOT.
IT IS FURTHER ORDERED that Petitioner's Motion for Enlargement of Time (Docket No. 16) is DENIED as MOOT.