United States District Court, D. Colorado
BRIAN C. STRAUB, Applicant,
BARRY GOODRICH, Warden, BCCF, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER STAYING CASE
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Brian C. Straub, is in the custody of the Colorado Department of Corrections (CDOC) and is incarcerated currently at the Bent County Correctional Facility in Las Animas, Colorado. Mr. Straub has filed, pro se, an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4) challenging his convictions in Denver District Court Case No. 07CR2494 for aggravated robbery and second degree kidnapping. He is serving an aggregate 10-year prison term.
On February 3, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a Pre-Answer Response addressing the issues of timeliness and exhaustion of state court remedies. Respondents filed a Pre-Answer Response on February 18, 2014. (ECF No. 9). Mr. Straub filed a Reply on March 17, 2014. (ECF No. 12).
Mr. Straub asserts three claims in the Amended Application, with sub-parts. The parties agree that Applicant has not exhausted state court remedies for the ineffective assistance of counsel (IAC) allegations raised in claim 3 of the Amended Application. (ECF No. 4, at 6; No. 9, at 27). The parties disagree about whether Applicant has committed an anticipatory procedural default of sub-claims 1(a), 1(b), and 2(b) in the state courts. (ECF No. 9, at 15-27; ECF No. 12, at 5-8). Respondents concede that claim 2(a) is exhausted. (ECF No. 9, at 23). Because the Application contains unexhausted IAC claims for which Mr. Straub has an available state court remedy, it is a mixed petition.
On July 18, 2014, Magistrate Judge Boland directed Mr. Straub to show cause, within thirty (30) days, why the Application should not be dismissed as a mixed petition under Rose v. Lundy, 455 U.S. 509, 522 (1982). The Court ordered Applicant, in the alternative, to dismiss voluntarily the unexhausted claims and proceed only with the exhausted claim(s), or demonstrate that a stay of this action is warranted pursuant to Rhines v. Weber, 544 U.S. 269, 275-76 (2005). Magistrate Judge Boland further directed the Respondents to file a Supplement to the Pre-Answer Response addressing whether a stay of this action is appropriate.
Respondents filed their Supplement to Pre-Answer Response on August 14, 2014. (ECF No. 16). Applicant filed a Reply to Order to Show Cause on September 2, 2014. (ECF No. 17).
I. Applicable Legal Standards
Mr. Straub's pro se filings are afforded a liberal construction. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court does not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534. "The exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Even if state remedies properly have been exhausted as to one or more of the claims presented, a habeas corpus application is subject to dismissal as a mixed petition unless state court remedies have been exhausted for all of the claims raised. See Rose, 455 U.S. at 522; Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir. 1995).In order to avoid dismissal of a habeas application as a mixed petition, an applicant may elect to dismiss any unexhausted claims and pursue only those claims for which state remedies already have been exhausted. Alternatively, if an applicant wishes to pursue all of his claims in federal court, the premature habeas action should be dismissed without prejudice so that the applicant may exhaust state remedies. Assuming that the AEDPA one-year limitation period, see 28 U.S.C. § 2244(d), has not expired, he then may file a new application for a writ of habeas corpus once all of his claims are exhausted.
A decision to dismiss unexhausted claims and pursue immediately only exhausted claims likely will bar an applicant from seeking review of the unexhausted claims in a second or successive application. See 28 U.S.C. § 2244(b). Alternatively, if an applicant elects to dismiss the entire action and return to state court to exhaust the unexhausted claims before seeking relief in federal court, the one-year limitation period in § 2244(d) will be applied to any new federal court action the applicant seeks to file. The time during which a 28 U.S.C. § 2254 application is pending in the federal court does not toll the one-year limitation period in § 2244(d). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that "an application for federal habeas corpus review is not an application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)" and "therefore did not toll the limitation period during the pendency of [an applicant's] first federal habeas petition").
The federal habeas court may stay a § 2254 application where the applicant's return to federal court will be barred by the one-year limitations period. Rhines, 544 U.S. at 275-76. However, a stay is available only in limited circumstances. Id. at 277.
Under Rhines, the Court will not stay a mixed petition pending total exhaustion, unless the applicant shows: good cause for his failure to exhaust his federal claims in the state court; that his unexhausted claims are not "plainly meritless"; and, that he has not engaged in ...