Opinion
civil No. 00-1498-FR
August 21, 2001
Steven T. Wax, Federal Public Defender, Anthony D. Bornstein, Assistant Federal Public Defender, Portland, Oregon, for Petitioner.
Hardy Myers, Attorney General, Lynn David Larsen, Assistant Attorney General, Salem, Oregon, for Respondent.
OPINION AND ORDER
The matters before the court are the respondent's motion to dismiss (#16) and the petitioner's request to hold federal habeas petition in abeyance (#17).
FACTS AS ALLEGED
The petitioner, Cary J. Johnson, is serving a 238-month term of imprisonment in the Snake River Correctional Institution by virtue of a judgment of conviction entered by the Circuit Court of the State of Oregon for the County of Multnomah in the case of State v. Johnson, C93-10-37052.
Johnson filed an appeal to the Oregon Court of Appeals from his conviction and sentence. The Oregon Court of Appeals affirmed his conviction and sentence without opinion.
On January 29, 1998, Johnson filed his original petition for post-conviction relief in the Circuit Court of the State of Oregon for the County of Malheur. This petition was denied.
On October 5, 2000, Johnson filed a successive petition for post-conviction relief in the Circuit Court of the State of Oregon for the County of Malheur, claiming that he was denied the effective assistance of counsel at trial and upon appeal. This successive petition is pending in the Circuit Court of the State of Oregon for the County of Malheur at this time.
On November 3, 2000, Johnson filed his petition for a writ of habeas corpus under 28 U.S.C. § 2254 in this court, alleging as his grounds for relief those raised in the original petition as well as the grounds for relief raised in the successive petition.
The State of Oregon moves the court to dismiss the petition filed in this court on the grounds that Johnson has not exhausted his state remedies because the successive petition is still pending. Johnson requests that this court stay his federal habeas corpus proceedings during the pendency of his successive post-conviction litigation in the Circuit Court of the State of Oregon for the County of Malheur.
APPLICABLE LAW
In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court addressed the proper method of disposing of habeas petitions containing both exhausted and unexhausted claims. The Court adopted the rule of "total exhaustion" and directed the district court to "dismiss such `mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id. at 510.
After Lundy, Congress enacted the Antiterrorism and Effective Death Penalty Act ("the AEDPA"), which includes a one-year statute of limitations for the filing of a habeas corpus petition. 28 U.S.C. § 2244(d). Before the AEDPA, there was no statute of limitations. Courts considering habeas petitions after the enactment of the AEDPA have differed as to the proper method of disposing of habeas petitions containing both exhausted and unexhausted claims. See, e.g., Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000) (recommending that district courts stay mixed petitions); and Graham v. Johnson, 168 F.3d 762, 778 (5th Cir. 1999) (recommending that district courts dismiss mixed petitions).
In Calderon v. United States District Court, 134 F.3d 981 (9th Cir. 1998), the United States Court of Appeals for the Ninth Circuit held that the federal district court may allow a habeas corpus petitioner to amend his petition to delete unexhausted claims and hold the amended petition in abeyance subject to further amendment reincorporating the deleted claims once they are litigated in state court. The Court of Appeals examined each of the three essential steps taken by the district court. The Court of Appeals concluded that the authority of the district court to delete from the original petition the unexhausted claims in the first step and the discretion of the district court to stay a petition with exhausted claims in the second step were not in question. Id. at 986-87. Because the district court had not yet decided whether to allow the petitioner to file a second amended petition, the Court of Appeals concluded that it could not offer an opinion as to the legitimacy of the third step not yet taken. Id. at 989. The Court of Appeals in Calderon stated clearly that the "stay-and-abeyance" procedure for mixed petitions (exhausted and unexhausted claims) is not a "valid exercise of judicial power" in this circuit. Id. at 985.
RULING OF THE COURT
This court is not authorized to hold Johnson's habeas petition, which includes exhausted and unexhausted claims, in abeyance. See Calderon, 134 F.3d at 985. The respondent's motion to dismiss is granted as to the grounds alleged only in the successive petition for post-conviction relief filed on October 5, 2000 in the Circuit Court of the State of Oregon for the County of Malheur. Once the claims that are not exhausted are removed from the petition, this court has the discretion to stay the petition as requested by Johnson. Id. at 988; Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert denied, 519 U.S. 1102 (1997). Johnson has already filed his successive petition in the state court, and the resolution will be forthcoming. This court concludes that a stay is reasonable in order to allow Johnson to seek to amend his petition by reincorporating the dismissed claims after they are litigated in the state court.
The respondent's motion to dismiss (#16) is GRANTED as to the grounds alleged only in the successive petition for post-conviction relief. The petitioner's request to hold his federal habeas petition in abeyance (#17) during the pendency of his successive post-conviction litigation is GRANTED as to the remaining grounds. The petitioner may seek leave of the court to amend his petition for a writ of habeas corpus under 28 U.S.C. § 2254 within 30 days after the ruling of the state court on the successive petition for post-conviction relief.
IT IS SO ORDERED.