United States District Court, W.D. Louisiana, Lafayette Division
B. Whitehurst, United States Magistrate Judge.
petitioner Nathaniel McCoy, a prisoner in the custody of
Louisiana's Department of Corrections, filed the instant
petition for writ of habeas corpus pursuant to 28 U.S.C.
§2254 on January 14, 2019. [Rec. Doc. 1] An Amended
Petition was filed on February 22, 2019 [Rec. Doc. 6] and
Petitioner was granted leave to proceed in forma pauperis on
March 1, 2019. [Rec. Doc. 9] Petitioner attacks his 2016
conviction for manslaughter and the forty (40) year sentence
imposed thereon by the Twenty-Seventh Judicial District
Court, St. Landry Parish. This matter has been referred to
the undersigned for review, report, and recommendation in
accordance with the provisions of 28 U.S.C. §636 and the
standing orders of the Court.
of the Case
March 28, 2019, the undersigned ordered Petitioner to either:
(1) dismiss the unexhausted claims set forth in his petition
and request that the court review those claims that were
properly exhausted; or, (2) dismiss his entire petition and
attempt to exhaust state remedies that remain available to
him with respect to the claims that have not yet been
litigated in the Louisiana courts. [Rec. Doc. 10]
April 8, 2019, in response to the Court's Order,
Petitioner filed a Motion to Stay, asking this Court to stay
the instant proceedings to allow him to raise his
post-conviction claims in the state courts. [Rec. Doc. 11]
United States Supreme Court has suggested that a petitioner
is entitled to file a “protective” petition in
federal court and request stay and abeyance notwithstanding
his failure to fully exhaust state remedies. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005). However, such a
motion is only appropriate in limited circumstances. See
Rhines v. Weber, 544 U.S. 269, 277 (2005). Specifically,
to be entitled to a Rhines stay, the petitioner must
show: (1) good cause for his failure to exhaust his claims,
(2) his unexhausted claims are not plainly meritless, and (3)
there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. See
Rhines, 544 U.S. at 277. Good cause for failing to
exhaust state avenues of relief is a balance of the interests
served by the exhaustion requirement and finality with the
clear instruction to litigants to ensure each federal claim
has been taken to state court first. See Rhines, 544
U.S. at 276-77 (citing Rose v. Lundy, 455 U.S. 509,
520 (1982)). The Supreme Court has not articulated a specific
test for good cause to justify stay and abatement. See
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). It has
found that “reasonable confusion about whether a state
filing would be timely will ordinarily constitute ‘good
cause'” under Rhines. Id. at
416-17. Courts have also found good cause to stay and abate a
mixed petition based on ineffective assistance of
post-conviction counsel, the prosecution's wrongful
withholding of evidence, or other external objective factors
not fairly attributable to the petitioner. See Doe v.
Jones, 762 F.3d 1174, 1182 (10th Cir. 2014), cert.
den'd, (U.S.2015) (canvassing reasons federal courts have
found good cause to stay and abate).
Court finds that Petitioner has not shown good cause for his
failure to exhaust claims prior to filing his petition for
writ of habeas corpus. He has provided no justification for
his failure to file a post-conviction application.
he has the option to dismiss his unexhausted claims and
proceed with only his exhausted claims. However, Petitioner
is put on notice that, if he dismisses the unexhausted claims
at this time, he may be precluded from bringing those claims
in the future. Specifically, the law with respect to
successive petitions requires a petitioner to obtain
authorization from the appropriate court of appeals before
filing a second or successive petition. 28 U.S.C.
§2244(b)3)(A). Otherwise, the entire petition can be
dismissed without prejudice at this time. Since
petitioner's judgment of conviction did not become final
under the provisions of 28 U.S.C. §2244(d)(1)(A) until
June 24, 2018, he would be able to timely bring his claims
before this Court at a later date, provided he promptly
begins the post-conviction process.
IT IS ORDERED that the Motion to Stay [Rec.
Doc. 11] is DENIED.
IS FURTHER ORDERED that Petitioner comply with this