IN THE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
DAMIEN WAYNE ECHOLS PETITIONER
5:04-CV-OO391 WRW
LARRY NORRIS. Director of the
Arkansas Department of Correction RESPONDENT
ORDER
Pending is Respondent's Motion to Dismiss Petition for Writ of Habeas
Corpus for Non-Exhaustion (Doc. No. 11). Petitioner has responded (Doc.
No. 15) and Respondent has replied (Doc. No. 16).
I.
It is undisputed that Petitioner's DNA claim has not been exhausted in state
court. 1
The procedural history of this case is lengthy. A full summary can be found in
one of the most recent state court opinions Echols v. State. 2
For purposes of Petitioner's habeas petition, the Arkansas Supreme
Court entered a final order on October 30, 2003. 3
Under the Antiterrorism and
1 See Respondent's Motion to Dismiss Petition
for Writ of Habeas Corpus for Non Exhaustion, page 15: see also
Petitioner's Response to Motion to Dismiss Amended Petition for Writ of Habeas
Corpus, page 4.
Petitioner's Claim III is his DNA claim. The Court will refer to this claim as
his "DNA claim."
2 2005 WL 107133 (January 20, 2005).
3 See Echols v. State, 354 Ark. 530 (October
30, 2003).
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Effective Death Penalty Act of 1996, 28 U.S.C.A. §2254. Petitioner has one year
from the state court's final order in which to file his habeas
petition in federal court. Petitioner filed his habeas petition on
October 28, 2004 and his amended petition on February 28, 2005. Petitioner
concedes that when he filed both his original and amended petitions, his DNA
claim had not been exhausted in state court. Specifically, under Arkansas Code
Annotated §16-112-201. Petitioner's DNA claim was filed in Craighead County
Circuit Court on July 25, 2002 and is currently pending. 4
Although Petitioner was aware of the exhaustion requirements, he knowingly
filed his habeas Petition because, even though his DNA claim was not
exhausted, there was uncertainty as to whether the DNA claim would toll the
AEDPA's one-year statute of limitations. "Accordingly, acting with an
abundance of caution and in light of the sentence imposed in this matter,
Echols submitted his original federal habeas petition prior to October 30,
2004. Again the claims in the instant amended petition relate back to the date
of filing the original petition." 5
Petitioner has requested that the Court stay the case and hold it in abeyance
pending resolution of his DNA claim in state court.
Respondent, on the other hand, claims that Petitioner's case is not ripe for
review before the Court, and has requested that the Court dismiss the petition
for failure to exhaust. Respondent also asserts that the Court should not hold
the case in abeyance because that is not consistent with Supreme Court
precedent. 6 Respondent claims that this Court must
dismiss the entire petition: or
4 See Echols v. State, 350 Ark.42 (2002).
5 See First Amended Petition for a Writ of Habeas
Corpus by a Person in State Custody. page 10.
6 See Respondent's Reply to Petitioner's
Response to Motion to Dismiss Petition for Habeas Corpus.
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dismiss the unexhausted claim and allow Petitioner to amend his Petition once
his unexhausted claim is exhausted at the state court level.
II.
Before a federal court may grant habeas relief to a state prisoner,
the petitioner must exhaust state court remedies. 7
State courts should have a proper opportunity to address a petitioner's claims
of constitutional error before those claims are presented in federal court. 8
The requirement of exhaustion of remedies is satisfied if the petitioner has
"fairly presented" a claim to the state court, thus preserving the
claim for federal review by properly raising both the factual and legal bases
of the claim in state court proceedings, affording that court "a fair
opportunity to rule on the factual and theoretical substance of [the] claim. 9
"In order to fairly present a federal claim to the state courts, the
petitioner must have referred to a specific federal constitutional right, a
particular constitutional provision, a federal constitutional case, or a state
case raising a pertinent federal constitutional issue in a claim before the
state courts." 10 Also, if it is unclear whether a
state court would entertain the claim or whether it is procedurally defaulted,
the federal court must either dismiss the petition without prejudice; or stay
the claim until the claim is presented to the state court.'' 11
III.
In Rhines v. Weber, the United States Supreme Court recently addressed
the issue of "mixed
7 28 U.S.C.A. §2253(b)(1)(A): Krimmel v. Hopkins.
56 F.3d 873 (8th Cir. 1995).
8 Coleman v. Thompson, 501 U.S. 722. 729-32 (1991).
9 Krimmel 56 F.3d at 876.
10 McCall
v Benson. 114 F.3d 754. 757 (8th Cir. 1997)(citations omitted).
11 See Sloan v. Delo. 54 F. 3d 1371. 1381 (8th
Cir. 1995)(internal citations omitted).
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petitions" petitions containing both exhausted and unexhausted claims and
the "stay and abey procedure." 12 In Rhines,
the United States Supreme Court recognized the delicate balance between
reducing delays in habeas cases and affording petitioners full and
fair adjudication. The Court held:
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, supra.
at 181-182. 121 S.Ct. 2120.
As a result of the interplay between the 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
12 Rhines v. Weber. 125 S.Ct.
1528 (2005).
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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.
District courts do ordinarily have authority to issue stays, see Landis v.
North American Co., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936).
where such a stay would be a proper exercise of discretion, see Clinton v.
Jones, 520 U.S. 681, 706, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). AEDPA
does not deprive district courts of that authority, cf.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" (emphasis added)), but it does circumscribe their
discretion. Any solution to this problem must therefore be compatible with
AEDPA's purposes.
One of the statute's purposes is to "reduce delays in the execution of
state and federal criminal sentences, particularly in capital cases." Woodford
v. Garceau. 538 U.S. 202. 206. 123 S.Ct. 1398. 155 L.Ed.2d 363 (2003). See
also Duncan, 533 U.S. at 179, 121 S.Ct. 2120. AEDPA's
1-year limitations period "quite plainly serves the well-recognized
interest in the finality of state court judgments." Ibid. It
"reduces the potential for delay on the road to finality by restricting
the time that a prospective federal habeas petitioner has in which to seek federal
habeas review." Ibid.
Moreover, Congress enacted AEDPA against the backdrop of Lundy's total
exhaustion requirement. The tolling provision in §2244(d)(2) "balances the
interests served by the exhaustion requirement and the limitation period,"
"by protecting a state prisoner's ability later to apply for federal
habeas relief while state remedies are being pursued." Duncan, supra,
at 179, 121 S.Ct. 2120. AEDPA thus encourages petitioners to seek relief from
state courts in the first instance by tolling the 1-year limitations period
while a "properly filed application for State post-conviction or other
collateral review" is pending. 28 U.S.C. §2244(d)(2). This scheme
reinforces the importance of Lundy's "simple and clear
instruction to potential litigants: before you bring any claims to federal
court, be sure that you first have taken each one to state court." 455
U.S. at 520. 102 S.Ct. 1198.
Stay and abeyance, if employed too frequently, has the potential to undermine
these twin purposes. 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").
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For these reasons, stay and abeyance should by 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 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").
Even where stay and abeyance is appropriate, the district court's discretion in
structuring the stay is limited by the timeliness concerns reflected in AEDPA.
A mixed petition should not be stayed indefinitely. Though, generally, a
prisoner's "principal interest...is in obtaining speedy federal relief on
his claims," Lundy, supra, at 520. 102 S.Ct. 1198 (plurality
opinion), not all petitioners have an incentive to obtain federal relief as
quickly as possible. In particular, capital petitioners might deliberately
engage in dilatory tactics to prolong their incarceration and avoid execution
of the sentence of death. Without time limits, petitioners could frustrate
AEDPA's goal of finality by dragging out indefinitely their federal habeas
review. Thus, district courts should place reasonable time limits on a
petitioner's trip to state court and back. See, e.g., Zarvela, 254
F.3d. at 381 ("[District courts] should explicitly condition the stay on
the prisoner's pursuing state court remedies within a brief interval, normally
30 days, after the stay is entered and returning to federal court within a
similarly brief interval, normally 30 days, after state court exhaustion is
completed"). And if a petitioner engages in abusive litigation tactics or
intentional delay, the district court should not grant him a stay at all. See
id., at 380-381.
On the other hand, it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition if the petitioner
had good cause for his failure to exhaust, his unexhausted claims are
potentially meritorious, and there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the mixed petition. See
Lundy, 455 U.S. at 522, 102 S.Ct. 1198 (the total exhaustion
requirement was not intended to "unreasonably impair the prisoner's right
to relief"). In such a case, the petitioner's interest in obtaining
federal review of his claims outweighs the competing interests in finality and
speedy resolution of federal petitions. For the same reason, if a petitioner
presents a district court with a mixed petition and the court determines that
stay and abeyance is inappropriate, the court should allow the petitioner to
delete the unexhausted claims and to proceed with the exhausted claims if
dismissal of the entire petition would unreasonably impair the petitioner's
right to obtain federal relief. See id., at 520, 102 S.Ct.
1198 (plurality opinion) ("[A petitioner] can
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always amend the petition to delete the unexhausted claims, rather than
returning to state court to exhaust all of his claims"). 13
Clearly, it would be a miscarriage of justice if Petitioner were not afforded
federal review of his habeas petition. However, Petitioner's claim
first must be fully exhausted at the state level before the Court can review
all of his claims. 14 Petitioner has not been able to
exhaust his claims in state court and must be afforded the opportunity to do
so. Petitioner has demonstrated that there is good cause to hold his habeas
petition in abeyance while his DNA claim is litigated. His claim was filed
correctly under Arkansas Code Annotated §16-112-201: and Petitioner is awaiting
the results so that he may litigate his claim in state court. There is no
evidence that Petitioner has engaged in abusive litigation tactics of
intentional delay. As Justice O'Connor stated in Rhines, "the
petitioner's interest in obtaining federal review of his claims outweighs the
competing interests in finality and speedy resolution of federal
petitions." 15 Absent delaying tactics on
petitioner's part, Justice O'Connor's admonition must, and should be, heeded.
THEREFORE, after careful consideration, Respondent's Motion to Dismiss Petition
for Writ of Habeas Corpus for Non Exhaustion is DENIED (Doc. No. 11).
Based on Rhines v. Weber. Petitioner's Petition and Amended Petition
for Writ of Habeas Corpus both will be stayed and held in abeyance
until Petitioner's DNA claim is exhausted in state court. Petitioner must
continue to pursue his DNA claim in state court with diligence, and file his
Amended Petition with the Court within ninety (90) days after the state court's
disposition. Nothing in this Order may be considered
13 Rhines 125 S.Ct. at 1533 (emphasis
added).
14 Coleman 501 U.S. at 729.
15 Rhines 125 S.Ct. at 1535.
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a dismissal or disposition of this matter.
IT IS SO ORDERED this 18th day of August, 2005.
/s/Wm. R. Wilson, Jr.
UNITED STATES DISTRICT JUDGE
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