Opinion
No. CV 99-0151 MJM
September 6, 2000
ORDER
I. Introduction
Hani W. Khouri (Khouri) filed a petition pursuant to 28 U.S.C. § 2254 for Writ of Habeas Corpus. (Doc. 3). Before the Court is Respondent's Motion to Dismiss Khouri's petition for Habeas Corpus. (Doc. 6). For the reasons that follow, Khouri's petition is dismissed without prejudice.
II. Discussion
On July 14, 1991, Khouri was convicted of first-degree murder in a trial by jury, for the slaying of Jacqueline Chacey. In his direct appeal Khouri raised, and the State of Iowa rejected, the following claims for relief: (1) the trial court erred in failing to instruct the jury on the theory of defense of extreme emotional disturbance; (2) the State failed to meet its burden of proof; (3) the court abused its discretion in failing to grant a mistrial; and (4) he was denied effective assistance of counsel. See Iowa v. Khouri, 503 N.W.2d 393, 393-95 (1993).
Specifically, Khouri maintained he had ineffective assistance because his trial counsel:
1) did not investigate Khouri's blackouts or drinking or otherwise pursue a diminished capacity defense;
2) did not timely obtain an English-Arabic dictionary for Khouri or get Khouri's hearing aids repaired; and
3) did not pursue a provocation defense.
Khouri then sought post-conviction relief and raised the following additional claims of ineffective assistance based on trial counsel's alleged: (1) failure to investigate and present a diminished capacity defense; (2) failure to investigate Khouri's competence to stand trial; (3) failure to focus on evidence that if believed would reduce Khouri's culpability to voluntary manslaughter; and (4) failure to investigate and present a provocation defense. Additionally, in a pro se brief, Khouri argued that (1) the trial information was defective; (2) the prosecutor engaged in prosecutorial misconduct; and (3) the jury instructions were ambiguous and confusing. Again, the State rejected all Khouri's claims for relief. See Khouri v. State of Iowa, 1999 WL 710868 * 3-6 (Iowa App. Aug. 27, 1999).
In his petition for Habeas Corpus before this Court, Khouri raises the aforementioned claims for relief, as well as numerous other claims not previously brought before the State of Iowa in either his direct appeal or his post-conviction proceedings. "The federal habeas statute requires persons in state custody who seek federal habeas relief to first exhaust available state remedies." Murray v. Wood, 107 F.3d 629, 631 (8th Cir. 1997) quoting, Wayne v. Missouri Bd. of Probation and Parole, 83 F.3d 994, 996 (8th Cir. 1996); Weeks v. Bowersox, 119 F.3d 1342, 1349 (8th Cir. 1997) (en banc), cert. denied, 522 U.S. 1093 (1998); see also § 18 U.S.C. § 2254(b) and (c). A petitioner may be relieved of this exhaustion requirement if there are no, non-futile State remedies available to him or the State has waived its exhaustion requirement. See Murray, 107 F.3d at 631, citing Duvall v. Purkett, 15 F.3d 745, 746 (8th Cir.), cert denied, 512 U.S. 1241 (1994).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), provides for exhaustion of state remedies, and exceptions to the exhaustion requirement, as follows:
(b)(1) 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; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the. . . . . cont. cont.
. . . .remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Khouri has not established that there are no, non-futile State remedies for his newly raised claims; nor has he established the State of Iowa has waived its exhaustion requirement on these claims. It appears therefore, this Court is faced with a "mixed petition" for Habeas relief; that is, a petition with exhausted and unexhausted claims for relief. See, e.g, Murray, 107 F.3d at 631-32, citing Castille v. Peoples, 489 U.S. 346, 349 (1989); see also, Gentry v. Lansdown, 175 F.3d 1082, 1083 (8th Cir. 1999). "When presented with a petition containing both exhausted and unexhausted claims, a district court must either dismiss the entire claim without prejudice or permit the petitioner to dismiss the unexhausted claims." Murray, 107 F.3d at 632; see also Victor v. Hopkins, 90 F.3d 276, 279-80 (8th Cir. 1996), cert denied, 519 U.S. 1153 (1997).
In its Motion to Dismiss, the State of Iowa alerted Khouri to the fact that many of his claims had not been exhausted and that the State had not waived its exhaustion requirement on those claims. However, Khouri has failed to dismiss those claims which are not properly before this Court and instead insists all his claims were raised at the State court level.
The Court finds that Khouri's petition for Habeas relief clearly raises scores of new claims which were not raised in either his appeal or post-conviction pleadings. Thus, after thorough review of the record, this Court finds that, at the least, Khouri properly exhausted the following claims: (1) the trial court erred in failing to instruct the jury on the theory of defense of extreme emotional disturbance; (2) the State failed to meet its burden of proof; (3) the court abused its discretion in failing to grant a mistrial; (4) he was denied effective assistance of counsel because of; (a) failure to investigate and present a diminished capacity defense; (b) failure to investigate Khouri's competence to stand trial; (c) failure to focus on evidence that, if believed, could have reduced Khouri's level of culpability to voluntary manslaughter; (d) failed to adequately prepare defense witness Namet Hanna for his deposition: (e) failed to raise justification defense through use of booking photographs showing injuries to Khouri's face the night of the murder, that Khouri maintains he sustained from the victim; and (f) failed to object to the malice instruction. The remainder of Khouri's claims appear to be unexhausted. Accordingly, this Court dismisses Khouri's Habeas petition in its entirety. Khouri may file a petition including only those exhausted claims which are properly before this Court, or, in the alternative, avail himself to whatever state remedy may be available to him on his unexhausted claims. See Victor, 90 F.3d at 280.
III. Conclusion
For the reasons stated herein, Respondent's Motion to Dismiss Khouri's petition for Habeas Corpus is GRANTED. Khouri's Habeas petition is dismissed without prejudice. Respondent's request that costs be assessed against Khouri, pursuant to 28 U.S.C. § 1915 (f)(1) is DENIED. Finally, Respondent's Motion to Strike Petitioner's Resistence and Response is DENIED, as it is rendered moot by this decision. (Doc. 13).
Done and so ordered this 6th day of September, 2000.