United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE
RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE.
District Court has referred this petition for a writ of
habeas corpus to United States Magistrate Judge J. Richard
Creatura. The Court's authority for the referral is 28
U.S.C. § 636(b)(1)(A) and (B), and local Magistrate
Judge Rules MJR3 and MJR4. Petitioner Stephanie McCrea filed
the petition pursuant to 28 U.S.C. § 2254.
of 2018, the Court entered a report and recommendation
recommending that two of petitioner's grounds raised in
her habeas petition be dismissed for failure to exhaust state
court remedies. Dkt. 11. However, the Court neglected to
address that petitioner's habeas petition was a mixed
petition, containing both exhausted and unexhausted grounds,
and therefore the Court did not provide petitioner with the
opportunity to exhaust her unexhausted grounds or to withdraw
them so the Court could consider her exhausted grounds. The
Honorable Robert Bryan re-referred the case to this Court,
ordering a supplemental report and recommendation
specifically addressing: (1) whether the petition should be
stayed or other action taken while petitioner exhausts her
unexhausted grounds; (2) whether the unexhausted grounds are
procedurally defaulted; (3) if so, whether the Court should
still consider the unexhausted grounds on their merits; and
(4) whether they should be denied on their merits. Dkt. 12.
Court has already found that grounds 5 and 6 in
petitioner's habeas petition are unexhausted. Dkt. 11,
pp. 8-9. Therefore, the Court will provide petitioner with
her procedural options as to those unexhausted grounds.
Options for Mixed Petitions
petitioner has submitted a mixed petition, the district court
may generally exercise one of three options: (1) dismiss the
mixed petition without prejudice; (2) stay the mixed petition
to allow the petitioner to present her unexhausted grounds to
the state court; or (3) allow the petitioner to withdraw the
unexhausted grounds and proceed with the remaining grounds.
See Rhines v. Weber, 544 U.S. 269, at 274-79 (2005).
Dismissal Without Prejudice
can opt for dismissal of the mixed petition without prejudice
and return to federal court after she has fully exhausted her
state court remedies. Petitioner has already filed a second
personal restraint petition (“PRP”) addressing
her unexhausted grounds. Dkt. 8, Ex. 20. However, the parties
have not explained whether the PRP was timely filed. Under
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the federal one-year statute of limitations tolls
while a prisoner properly seeks collateral review in state
courts but not when the prisoner is in federal court.
Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir.
2007) (citing to 28 U.S.C. 2244 (d)(2); Rhines, 544
U.S. at 274-75 (2005)). If petitioner's second PRP was
timely filed, the federal one-year statute of limitations is
Motion to Stay and Abey
district court, on federal habeas review, has discretion to
stay a mixed petition to allow a petitioner to return to
state court to present her unexhausted grounds.
Rhines, 544 U.S. 269. The stay and abeyance
procedure should be invoked only in very limited
circumstances, such as where: (1) the petitioner has good
cause for her failure to exhaust; (2) the unexhausted grounds
are potentially meritorious; and, (3) there is no indication
that the petitioner engaged in intentionally dilatory
litigation tactics. Id. at 278.
for petitioners who file mixed petitions and who are close to
the end of AEDPA's one-year time limit, there is a
probability that they will not have time to exhaust state
remedies and to refile in federal court before the
limitations period runs. In such cases, rather than
dismissing the mixed petition outright, a district court may
stay the petition and hold it in abeyance while the
petitioner returns to state court to exhaust her unexhausted
grounds. Rhines, 544 U.S. at 275. Once she has
exhausted her state remedies, the federal court will lift the
stay and allow the petitioner to proceed on her now-exhausted
grounds. Id., pp. 275-76.
Consideration of Exhausted Grounds Only
Court were to now consider only the exhausted grounds
(grounds 1-4), petitioner could face procedural obstacles
should she choose to bring a second or successive habeas
petition to challenge her current conviction. See Burton
v. Stewart, 549 U.S. 147, 154 (2007) (noting that habeas
petitioners proceeding with only exhausted grounds may risk
subjecting later petitions that raise new grounds to rigorous
procedural obstacles); Cooper v. Calderon, 274 F.3d
1270, 1272-73 (9th Cir. 2001) (per curiam) (noting that the
relevant statutes greatly restrict the power of federal
courts to award relief to state prisoners who file second or
successive habeas corpus applications); 28 U.S.C. §
2244(b) (providing that a claim presented in a second or
successive § 2254 habeas petition “shall” be
dismissed unless certain substantive and procedural
requirements are met).