United States District Court, D. Arizona
REPORT AND RECOMMENDATION
J. Markovich United Stales Magistrate Judge
filed this action on May 30, 2018 and filed his Amended
Petition for Writ of Habeas Corpus on August 27, 2018. (Doc.
9). The Court ordered Respondents to file an Answer to the
Amended Petition, which was due on December 11, 2018. The
Court subsequently granted Respondents an extension until
January 25, 2019. (Doc. 16).
filed another motion on January 11, 2019 requesting that the
Court either order that the answer be due 40 days after
Petitioner notified the Court of completion of his state PCR
proceedings,  or, in the alternative, that the Court
enter an order staying this matter pending the outcome of the
state PCR proceedings, or dismissing this matter without
prejudice and with leave for Petitioner to refile his habeas
petition upon completion of his state PCR proceedings. (Doc.
17). On January 14, 2019 the Court issued an Order granting
Respondents an extension to file their answer by March 6,
2019. (Doc. 18).
January 19, 2019 Petitioner filed a motion to deny the
state's request for a stay and requested that this Court
order Respondents to file an answer by the January 25, 2019
deadline or strike the answer. (Doc. 19). That same date,
Petitioner also filed a motion to reconsider the Court's
Order on Respondents' request for an extension of time.
January 25, 2019 Respondents filed a motion for clarification
and to stay deadline to file answer. (Doc. 21). Respondents
request clarification from Petitioner as to whether he wants
to: (1) proceed on his exhausted habeas claims and dismiss
his unexhausted claims that are still pending in state court,
or (2) dismiss his federal habeas proceedings without
prejudice to allow him to complete his state court
proceedings and then return to federal court. Alternatively,
Respondents request that the Court stay and abey the federal
proceedings until Petitioner's state court proceedings
undersigned Magistrate Judge recommends this habeas action be
stayed pending the exhaustion of Petitioner's claims
currently being litigated in the Arizona Court of Appeals in
his successive post-conviction petition. Because granting a
stay may be beyond the lawful authority of a magistrate judge
and, out of an abundance of caution, the undersigned proceeds
by report and recommendation to the assigned District Judge,
the Honorable Jennifer G. Zipps.
a district court may not grant a petition for a writ of
habeas corpus filed by a petitioner in state custody unless
the petitioner has exhausted available state court remedies.
28 U.S.C. § 2254(b)(1). The exhaustion inquiry focuses
on the availability of state remedies at the time the
petition for writ of habeas corpus is filed in federal court.
O'Sullivan v. Boerckel, 526 U.S. 838 (1999).
Exhaustion of state remedies requires a petitioner in state
custody to fairly present his federal claims to the highest
state court, either on direct appeal or through state
collateral proceedings, in order to give the highest state
court “the opportunity to pass upon and correct alleged
violations of its prisoners' federal rights.”
Duncan v. Henry, 513 U.S. 364, 365 (1995); see
also Sanders v. Ryder, 342 F.3d 991, 1000 (9th Cir.
2003), cert. denied, 541 U.S. 956 (2004).
Arizona, unless a prisoner has been sentenced to death, the
“highest court” requirement is satisfied if the
petitioner has presented his federal claims to the Arizona
Court of Appeals either on direct appeal or in a petition for
post-conviction relief. Crowell v. Knowles, 483
F.Supp.2d 925 (D. Ariz. 2007).
federal court may not “adjudicate mixed petitions for
habeas corpus, that is, petitions containing both exhausted
and unexhausted claims.” Rhines v. Weber, 544
U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S.
509, 518-519 (1982)). In Rhines, however, the
Supreme Court held that “a federal district court has
discretion to stay [a] mixed petition to allow the petitioner
to present his unexhausted claims to the state court in the
first instance, and then to return to federal court for
review of his perfected petition.” Id. at 271-
72. This discretion is to be exercised under “limited
circumstances, ” id. at 277, because
“routinely granting stays would undermine the
[Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”)] goals of encouraging finality and
streamlining federal habeas proceedings.” Blake v.
Baker, 745 F.3d 977, 981-82 (9th Cir. 2014); see
also Yong v. I.N.S., 208 F.3d 1116, 1119 (9th Cir. 2000)
(“It is true that a trial court has the inherent
authority to control its own docket and calendar . . . At the
same time, habeas proceedings implicate special
considerations that place unique limits on a district
court's authority to stay a case in the interests of
judicial economy . . . Consequently, although a short stay
may be appropriate in a habeas case . . . we have never
authorized, in the interests of judicial economy, an
indefinite, potentially lengthy stay in a habeas
2254 proceedings are governed by AEDPA, which imposes a
one-year statute of limitations for the filing of a federal
habeas petition. While that limitations period is tolled
“during the pendency of a ‘properly filed
application for State post-conviction or other collateral
review,' [28 U.S.C.] § 2244(d)(2), the filing of a
petition for habeas corpus in federal court does not toll the
statute of limitations.” Rhines, 544 U.S. at
274-75. A stay under Rhines “eliminates
entirely any [AEDPA statute of] limitations issue with regard
to the originally unexhausted claims, as the claims remain
pending in federal court[.]” King v. Ryan, 564
F.3d 1133, 1140 (9th Cir. 2009).
motions (Docs. 19 and 20) suggest that Petitioner may be
confused about what Respondents are requesting. Petitioner
states that he is not planning to file a second habeas
petition. However, the issue is not whether Petitioner is
planning to file another federal habeas petition-it is the
fact that Petitioner's second PCR proceedings are ongoing
in state court, and thus Petitioner's claims in his
habeas petition that relate to that second PCR petition are
not yet exhausted. If Petitioner chose to proceed only on the
exhausted claims in his current habeas corpus case, this
Court would likely be unable to consider any claims in his
pending state proceedings unless Petitioner first obtained
authorization from the Ninth Circuit Court of Appeals to file
a second or successive habeas corpus case. 28 U.S.C. §
2244(b)(2), (3). To avoid having to later seek leave from the
Ninth Circuit to file a second or successive habeas corpus
case as to his pending state claims, Petitioner could
voluntarily dismiss or seek to voluntarily dismiss his
current habeas corpus case without prejudice by following the
procedures set forth in Rule 41(a) of the Federal Rules of
Civil Procedure. If he did so, he could file a new habeas
corpus case that includes all of the claims he wants to
raise, including claims from his pending PCR proceedings.
However, although the one-year statute of limitations for
filing a habeas corpus case is tolled during the pendency of
a properly filed application for state post-conviction relief
and a properly filed petition for review of the denial of