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Thompson v. Hooper

United States District Court, E.D. Louisiana

April 30, 2018

J. D. THOMPSON, III
v.
WARDEN TIM HOOPER

         SECTION: “G” (3)

          ORDER AND REASONS

          DANIEL E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE

         Petitioner, J. D. Thompson, III, is a state prisoner incarcerated at the Elayn Hunt Correctional Center in St. Gabriel, Louisiana. On April 2, 2015, he was convicted of aggravated incest, attempted sexual battery of a victim under 13, and sexual battery under Louisiana law.[1] On June 23, 2015, he was sentenced as follows: on the aggravated incest conviction, to a term of fifty years imprisonment without the benefit of probation, parole, or suspension of sentence; on the attempted sexual battery conviction, to a term of twenty-five years imprisonment; and on the sexual battery conviction, to a term of ten years imprisonment without the benefit of probation, parole, or suspension of sentence. It was ordered that his sentences run concurrently.[2] On April 15, 2016, the Louisiana First Circuit Court of Appeal affirmed his convictions and sentences.[3] The Louisiana Supreme Court then denied his related writ application on April 13, 2017.[4] After that ruling, he filed neither a petition for writ of certiorari with the United States Supreme Court[5] nor an application for post-conviction relief in the state courts.[6]

         Instead, he proceeded directly to federal court, filing the instant federal habeas corpus application asserting the same three claims he exhausted in the state courts on direct review.[7]When he later realized that he had sought federal relief prematurely, he filed a motion asking that these proceedings be stayed while he pursues an ineffective assistance of counsel claim in the state courts on collateral review.[8] The state was ordered to file a response to that motion.[9] The state thereafter filed a response opposing the motion, [10] and petitioner filed a reply to the state's response.[11]

         In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court explained that, in limited circumstances, it is appropriate for a federal district court to stay habeas corpus proceedings. In Rhines, the petitioner had filed a federal habeas corpus application asserting a number of claims; however, the district court subsequently determined that some of those claims were unexhausted. In light of that determination, the petitioner moved the district court to hold his federal application in abeyance while he returned to the state courts to exhaust the unexhausted claims. The district court granted that motion and issued a stay conditioned upon the petitioner commencing state court exhaustion proceedings within sixty days and then returning to the federal court within sixty days of the exhaustion of his claims in the state courts. The state appealed that decision, and the United States Eighth Circuit Court of Appeals vacated the stay and remanded the case to the district court. However, the United States Supreme Court then granted certiorari and vacated the Court of Appeals' judgment. In doing so, the Supreme Court noted:

Fourteen years before Congress enacted AEDPA, we held in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), that federal district courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. We reasoned that the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims. Id., at 518-519, 102 S.Ct. 1198. We noted that “[b]ecause ‘it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation, ' federal courts apply the doctrine of comity.” Id., at 518, 102 S.Ct. 1198 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)). That doctrine “‘teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.'” 455 U.S., at 518, 102 S.Ct. 1198.
Accordingly, we imposed a requirement of “total exhaustion” and directed federal courts to effectuate that requirement by dismissing mixed petitions without prejudice and allowing petitioners to return to state court to present the unexhausted claims to that court in the first instance. Id., at 522, 102 S.Ct. 1198. When we decided Lundy, there was no statute of limitations on the filing of federal habeas corpus petitions. As a result, petitioners who returned to state court to exhaust their previously unexhausted claims could come back to federal court to present their perfected petitions with relative ease. See Slack v. McDaniel, 529 U.S. 473, 486, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (dismissal without prejudice under Lundy “contemplated that the prisoner could return to federal court after the requisite exhaustion”).
The enactment of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions. AEDPA preserved Lundy's total exhaustion requirement, see 28 U.S.C. § 2254(b)(1)(A) (“An application for a writ of habeas corpus ... shall not be granted unless it appears that ... the applicant has exhausted the remedies available in the courts of the State”), but it also imposed a 1-year statute of limitations on the filing of federal petitions, § 2244(d). Although the limitations period is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review, ” § 2244(d)(2), the filing of a petition for habeas corpus in federal court does not toll the statute of limitations, Duncan, 533 U.S., at 181-182, 121 S.Ct. 2120.
As a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with “mixed” petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review. For example, if the District Court in this case had dismissed the petition because it contained unexhausted claims, AEDPA's 1-year statute of limitations would have barred Rhines from returning to federal court after exhausting the previously unexhausted claims in state court. Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the petitioner's chances of exhausting his claims in state court and refiling his petition in federal court before the limitations period runs are slim. The problem is not limited to petitioners who file close to the AEDPA deadline. Even a petitioner who files early will have no way of controlling when the district court will resolve the question of exhaustion. Thus, whether a petitioner ever receives federal review of his claims may turn on which district court happens to hear his case.
We recognize the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike. In an attempt to solve the problem, some district courts have adopted a version of the “stay-and-abeyance” procedure employed by the District Court below. Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.

Rhines, 544 U.S. at 273-76.

         The Supreme Court then determined that the stay and abeyance procedure is permissible, but the Supreme Court expressly cautioned that the procedure should be employed only in limited circumstances:

Staying a federal habeas petition frustrates AEDPA's objective of encouraging finality by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines AEDPA's goal of streamlining federal habeas proceedings by decreasing a petitioner's incentive to exhaust all his claims in state court prior to filing his federal petition. Cf. Duncan, supra, at 180, 121 S.Ct. 2120 (“[D]iminution of statutory incentives to proceed first in state court would ... increase the risk of the very piecemeal litigation that the exhaustion requirement is designed to reduce”).
For these reasons, stay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for a writ of ...

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