D. Petitioner Must Elect Whether to Proceed With His Exhausted Ground One or Return to State Court to Exhaust Grounds Two and Three Where, as here, a stay and abeyance is unwarranted, a district court must offer the petitioner a choice of either dismissing the amended petition and returning to state court or amending the habeas petition to present only exhausted claims. Rhines, 544 U.S. at 278; King v. Chase, 384 Fed.Appx. 972, 975 (11th Cir. 2010). However, “when it is obvious that the unexhausted claims would be procedurally barred in state court . . . a district court can . . . just treat those claims now barred by state law as no basis for federal habeas relief.”
Where, as here, a stay and abeyance is unwarranted, a district court must offer the petitioner a choice of either dismissing the petition and returning to state court or amending the habeas petition to present only exhausted claims. Rhines, 544 U.S. at 278; King v. Chase, 384 F. App'x 972, 975 (11th Cir. 2010). However, "when it is obvious that the unexhausted claims would be procedurally barred in state court . . . a district court can . . . just treat those claims now barred by state law as no basis for federal habeas relief."
Where, as here, a stay and abeyance is unwarranted, a district court must offer the petitioner a choice of either dismissing the petition and returning to state court or amending the habeas petition to present only exhausted claims. Rhines, 544 U.S. at 278; King v. Chase, 384 F. App'x 972, 975 (11th Cir. 2010). However, “when it is obvious that the unexhausted claims would be procedurally barred in state court . . . a district court can . . . just treat those claims now barred by state law as no basis for federal habeas relief.”
Accordingly, since Rhines, the Eleventh Circuit has ruled that, "when a district court is confronted with a mixed § 2254 petition, the ordinary disposition is to either dismiss it in its entirety, or grant a stay and abeyance." King v. Chase, 384 F. App'x 972, 975 (11th Cir. 2010); see Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007). The Eleventh Circuit has construed Rhines to require district courts to: "(1) make findings as to whether a stay and abeyance is warranted; and (2) if a stay is warranted, offer petitioners a choice to proceed with only the exhausted claims."
Where, as here, a stay and abeyance is unwarranted, a district court must offer the petitioner a choice of either dismissing the petition and returning to state court or amending the habeas petition to present only exhausted claims. Rhines, 544 U.S. at 278; King v. Chase, 384 F. App'x 972, 975 (11th Cir. 2010). However, "when it is obvious that the unexhausted claims would be procedurally barred in state court . . . a district court can . . . just treat those claims now barred by state law as no basis for federal habeas relief."
It is well-established in the Eleventh Circuit "[t]he exhaustion requirement is not jurisdictional, but rather, is a procedural rule based in comity." King v. Chase, 384 F. App'x 972, 974 (11th Cir. 2010) (citing Thompson v. Wainwright, 714 F.2d 1495, 1503-04 (11th Cir. 1983)). Thus, the state attorney general can waive the exhaustion requirement in federal habeas proceedings.
In the Eleventh Circuit, it is well established that "[t]he exhaustion requirement is not jurisdictional, but rather, is a procedural rule based in comity." King v. Chase, 384 F. App'x 972, 974 (11th Cir. 2010) (citing Thompson v. Wainwright, 714 F.2d 1495, 1503-04 (11th Cir. 1983)).
Where, as here, a stay and abeyance is unwarranted, a district court must offer the petitioner a choice of either dismissing the petition and returning to state court or amending the habeas petition to present only exhausted claims. Rhines, 544 U.S. at 278; King v. Chase, 384 F. App'x 972, 975 (11th Cir. 2010). However, "when it is obvious that the unexhausted claims would be procedurally barred in state court . . . , a district court can . . . just treat those claims now barred by state law as no basis for federal habeas relief."
In the Eleventh Circuit, it is well established that "[t]he exhaustion requirement is not jurisdictional, but rather, is a procedural rule based in comity." King v. Chase, 384 F. App'x 972, 974 (11th Cir. 2010) (citing Thompson v. Wainwright, 714 F.2d 1495, 1503-04 (11th Cir. 1983)). Accordingly, state attorney generals are permitted to waive the exhaustion requirement in federal habeas proceedings.
After Rhines, the Eleventh Circuit stated that when a district court is confronted with a mixed § 2254 petition, the ordinary disposition is either to dismiss it in its entirety or to grant a stay and abeyance. King v. Chase, 384 Fed.Appx. 972, 975 (11th Cir. 2010)(citing Ogle v. Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007)). However, in King, the Eleventh Circuit construed Rhines to require that district courts: (1) make findings as to whether a stay and abeyance is warranted; and (2) if a stay is unwarranted, "allow the petitioner to delete the unexhausted claims and proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief."