WILLIAM S. DUFFEY, JR., District Judge.
This matter is before the Court on Petitioner Gerald Wright's ("Wright" or "Petitioner") Objections (the "Objections") [13] to Magistrate Judge C. Christopher Hagy's Final Report and Recommendation ("R & R") [12]. The R & R considers Wright's Petition for Writ of Habeas Corpus [1] and Respondent Sheila Oubre's ("Respondent") Motion to Dismiss [4]. The Magistrate Judge recommended that Respondent's motion to dismiss be granted and the Petition be dismissed without prejudice for lack of exhaustion. The Magistrate Judge recommended that a Certificate of Appealability not be issued.
On February 6, 2001, Petitioner was convicted in the Superior Court of Dade County of murder, felony murder, aggravated assault, possession of a firearm during the commission of a felony, and concealing the death of another person. On March 27, 2003, the Georgia Supreme Court affirmed his conviction. On January 12, 2004, the United States Supreme Court denied Petitioner's writ of certiorari. On July 9, 2010, the Superior Court of Gwinnett County denied Wright's petition for a writ of habeas corpus. Wright's application for a certificate of probable cause to
On August 30, 2010, Wright petitioned this Court for a writ of habeas corpus pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254[1]. On September 28, 2010, Respondent moved to dismiss Wright's petition for failure to exhaust his state claims [4]. On November 4, 2010, Magistrate Judge C. Christopher Hagy ordered Petitioner to show cause why the Court should not dismiss his petition without prejudice as an unmixed petition that is not subject to stay and abeyance under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) [7]. In response, Petitioner argued that Pace v. Di-Guglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), extends Rhines to all unmixed petitions, and that Petitioner had good cause for failure to exhaust all of his habeas claims in state court [8]. On December 22, 2010, the Magistrate Judge issued his R & R, recommending that Wright's petition be dismissed without prejudice for failure to exhaust his state remedies [12]. The Magistrate Judge found that Rhines did not require a stay and abeyance in this case because Wright's petition contains only unexhausted claims and Pace does not apply. He also found that, even if Rhines did apply, Petitioner has failed to show good cause for failing to exhaust state remedies before filing his petition in federal court. The Magistrate Judge recommended that a Certificate of Appealability ("COA") not be issued, because Petitioner failed to show that reasonable jurists could debate whether his petition should have been resolved in a different manner. In his Objections [13], Petitioner reiterates the arguments he previously raised in his response to the Magistrate Judge's order to show cause.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. §. 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "`give fresh consideration to those issues to which specific objection has been made by a party.'" Jeffrey S. by Ernest S. v. State Board of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (quoting H.R.Rep. No. 94-1609, 94th Cong., 2d Sess. (1976), 1976 U.S.C.C.A.N. 6162, 6163). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
Respondent has moved to dismiss Wright's petition for failure to exhaust his state remedies pursuant to 28 U.S.C. § 2254(b)(1). Petitioner argues that (1) Pace extends Rhines to all unmixed petitions, and (2) that Petitioner had good
The AEDPA provides that a Court shall not grant an application for a writ of habeas corpus unless "the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1). Principles of comity would be violated by allowing a state prisoner to simultaneously pursue both his appeal in state court and a habeas corpus petition in federal court. Horowitz v. Wainwright, 709 F.2d 1403 (11th Cir.1983). Exhaustion of state remedies requires state prisoners to fairly present federal claims to state courts to give state courts the opportunity to pass upon and correct alleged violations of its prisoners' federal rights. Snowden v. Singletary, 135 F.3d 732 (11th Cir.1998). "Generally, when a petitioner has failed to exhaust state remedies, the district court should dismiss the petition without prejudice to allow exhaustion." Reedman v. Thomas, 305 Fed.Appx. 544, 546 (11th Cir. 2008) (per curium) (citing Rose v. Lundy, 455 U.S. 509, 519-520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)).
In Rhines v. Weber, the Supreme Court held that district courts may order a stay and abeyance of mixed petitions "in limited circumstances." 544 U.S. 269, 270, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). While the AEDPA requires exhaustion of state remedies and imposes a statute of limitations, the limitations period is tolled during the pendency of a state application for habeas review. It is not tolled by the filing of a federal petition for habeas review. Id. at 274, 125 S.Ct. 1528 (citing 28 U.S.C. §§ 2254(b)(1)(A), 2244(d)). The Supreme Court has held that, because an application for federal habeas review is not an "application for State post-conviction or other collateral review," the time for filing a federal habeas petition is not tolled during the pendency of a petitioner's first federal habeas petition. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). This "provides a powerful incentive for litigants to exhaust all available state remedies before proceeding in the lower federal courts." Id. Recognizing that the AEDPA's exhaustion requirement and statute of limitations may cause petitioners who file mixed petitions in federal court to "run the risk of forever losing their opportunity for any federal review of their unexhausted claims," the Rhines Court held that a district court has discretion to stay a mixed petition to allow a petitioner to present his unexhausted claims to the state court and subsequently return to federal court for review of his petition.
Petitioner relies on Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005), to extend Rhines to all habeas petitions, arguing specifically that this Court should hold that where there is a very short period of time left to run on the AEDPA limitations period, the Court should enact a rule that permits a petitioner to file a "protective petition" in federal court to protect a petitioner from missing his federal habeas filing deadline. Petitioner argues that Pace requires the Court to allow this new "protective petition" process. The Court disagrees. Petitioner's reliance on Pace is misplaced.
In Pace, the Supreme Court held that a petitioner was not entitled to equitable tolling of the AEDPA's statute of limitations while his untimely state petition was pending in state court. Id. The petitioner in Pace argued that it was unfair not to toll the limitations period where a petitioner might litigate his state case for years, trying in good faith to exhaust state remedies, only to find out that his state petition was untimely and thus his federal claim was time-barred. The Court suggested that
Id. (citing Rhines) (emphasis added). Pace does not support applying Rhines to all unmixed petitions, but rather only to those limited circumstance in which a petitioner seeks to preserve his opportunity for federal habeas review because his federal claim might otherwise be time-barred due to his reasonable confusion about state filing requirements. Wright does not argue that he has any reasonable confusion about his state habeas filing.
Petitioner's reliance on Heleva v. Brooks, 581 F.3d 187 (3rd Cir.2009), to extend Rhines to all unmixed petitions also is misplaced. In Heleva, the district court had denied a habeas petition, ruling that it lacked the authority under Rhines to issue a stay where the petition contained only unexhausted claims. Id. at 188. The Third Circuit remanded, finding that the District Court failed to consider Pace and its interpretation of Rhines. Id. The Third Circuit recognized that Pace applies "in at least some limited circumstances beyond the presentation of a mixed petition." Id. at 191. The Third circuit, noting the purpose of Rhines and Pace, commented that "a distinction between mixed and non-mixed petitions would make no sense in the context of granting a stay to avoid penalizing a prisoner for reasonable confusion about state court filing requirements." Id. at 191 (emphasis added).
Id. at 192, n. 3. Unlike the petitioner in Heleva, Wright has not argued that he had any confusion about state filing requirements that Pace categorized as "good cause" for a stay.
Petitioner next objects to the Magistrate Judge's reliance on Rasberry v. Garcia, 448 F.3d 1150 (9th Cir.2006) in finding that exhaustion is required. In Rasberry, the Ninth Circuit "decline[d] to extend [the stay and abeyance procedure] to the situation where the original habeas petition contained only unexhausted claims, but the record shows that there were exhausted claims that could have been included." Id. at 1154. The petitioner in Rasberry specifically argued that the district court, which had dismissed his case for failure to exhaust, should have first notified him that he had omitted two claims from his petition that had been exhausted in state court, so that he could add those claims and make his a mixed petition eligible for stay and abeyance under Rhines. Id. The Ninth Circuit held that "once a district court determines that a habeas petition contains only unexhausted claims ... it may simply dismiss the petition for failure to exhaust." Id. at 1154. Petitioner objects to the Magistrate Judge's reliance on this statement, arguing that the Ninth Circuit relied on a pre-Rhines case and failed to consider Pace [13 at 3].
The Eleventh Circuit has instructed: "[g]enerally, when a petitioner has failed to exhaust state remedies, the district court should dismiss the petition without prejudice to allow exhaustion." Reedman v. Thomas, 305 Fed.Appx. 544, 546 (11th Cir.2008) (per curium) (citing Rose v. Lundy, 455 U.S. 509, 519-520, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). This Court has stated: "when a federal habeas petitioner has failed to exhaust his state remedies with respect to his only federal claim for relief, he is not entitled to the stay and abeyance procedure outlined in Rhines, which only applies to a mixed petition."
Even if Rhines did apply, which the Court finds it does not, Wright's petition must be denied because he has not shown good cause for his failure to exhaust state claims.
Petitioner next argues that, since he will "undoubtedly" be able to meet the requirements for equitable tolling if his petition is not filed before the statute of limitations expires, the Court should stay this petition to avoid unnecessary litigation.
Finally, the interpretation of Rhines and Pace urged by Petitioner would create uncertainty, and potentially unfairness, in the application of the requirements of the AEDPA. Congress passed the AEPA, its statute of limitations and tolling provisions, to create regularity in the processing of federal habeas cases, to avoid duplicate, overlapping state and federal proceedings, and to create certainty and fairness in the processing of federal habeas actions: "This title [of the AEDPA] incorporates reforms to curb the abuse of the statutory writ of habeas corpus, and to address the acute problems of unnecessary delay and abuse in capital cases." H.R. Conf. Rep. No. 104-518, p. 111 (1996), 1996 U.S.C.C.A.N. 944, 944.
Rhines, 544 U.S. at 277, 125 S.Ct. 1528. To enact the "we are close to the end of the limitations period protective petition rule" advocated by Petitioner erodes what Congress sought to achieve in enacting the statute of limitations embedded in the act and would disrupt the regularity and certainty that the AEDPA and its limitations period provides. It certainly would inject into the process unnecessary and unjustified ambiguity. The creation of ambiguity is certain. The question always will be how close to the tolling period would a petition have to be to allow a Petitioner to file a "protective petition?" Petitioner seeks the "one day left" exception. Others will argue that two days remaining warrants an exception. Others will say they do not have access to computers so a longer period should be allowed. Still others will argue the fact they do not have internet access supports a still longer period. The interpretation of Pace suggested by Petitioner creates uncertainty and ambiguity where none currently exists, precisely what the AEDPA limitations period requirements sought to avoid.
The Pace footnote was intended, at most, to allow a narrow exception to address
Petitioner objected to the Magistrate Judge's finding of fact and conclusion of law that a Certificate of Appealability ("COA") should not be issued. "A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a district court has denied a habeas petition on procedural grounds without reaching the merits of the underlying constitutional claim, the petitioner must show that (1) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling," and that (2) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. at 484, 120 S.Ct. 1595 (2000). "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id.
Petitioner argues that a COA should issue on whether Rhines, in light of Pace, extends to unmixed petitions. [13 at 8]. Petitioner argues that, since the Third Circuit has determined that Rhines applies to all unmixed petitions while other courts have concluded the opposite, reasonable jurists could debate whether Rhines applies to unmixed petitions in light of Pace. Petitioner mischaracterizes the holding in Heleva and disregards the AEDPA's exhaustion requirement. Neither the Supreme Court in Pace nor the Third Circuit in Heleva extends Rhines to all unmixed petitions; in those cases, both petitioners argued reasonable confusion about state filing limitations. Because Petitioner has failed to exhaust his state claims and has not alleged reasonable confusion as good cause for failure to exhaust, Rhines does not apply. No reasonable jurist could debate otherwise. Petitioner's objection is overruled. A Certificate of Appealability is required to be denied.
For the foregoing reasons,
