John Doe v. Jones, 12–6311.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Citation762 F.3d 1174
Docket NumberNo. 12–6311.,12–6311.
PartiesJohn DOE, Petitioner–Appellant, v. Justin JONES, Director; Oklahoma Department of Corrections; E. Scott Pruitt, Attorney General, State of Oklahoma, Respondents–Appellees.
Decision Date12 August 2014


Claudia Van Wyk, Federal Community Defender, Eastern District of Pennsylvania, Philadelphia, PA (Robert R. Nigh, Jr., Brewster & De Angelis, P.L.L.C., Tulsa, OK, with her on the briefs), for PetitionerAppellant.

Seth S. Branham, Assistant Attorney General (E. Scott Pruitt, Attorney General), State of Oklahoma, Oklahoma City, OK, for RespondentsAppellees.

Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner John Doe,1 a federal prisoner, filed this first habeas petition pursuant to 28 U.S.C. § 2254 and an almost identical post-conviction relief application in state court, challenging the constitutionality of a prior Oklahoma state court conviction based on evidence of actual innocence. He also filed a motion to abate this § 2254 action pending state court exhaustion of his claims. The district court dismissed his habeas petition without prejudice, adopting the magistrate judge's Report and Recommendation and holding that a stay under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), was not available because the petition was not “mixed” 2 as in Rhines and, in any event, because petitioner lacked good cause for the stay. Although we disagree with the district court's reasoning regarding the potential application of Rhines, we affirm its denial of a stay.


Petitioner was convicted of first-degree murder by a jury in Oklahoma and sentenced to life without parole. His direct appeal was unsuccessful and he did not file for a writ of certiorari, an application for state post-conviction relief, or a federal habeas petition. He was separately convicted in federal court for robbery of a federally insured bank, which took place in connection with the Oklahoma murder, and was sentenced to life imprisonment for that crime. While serving the federal life sentence in Texas, petitioner was convicted of murdering a fellow inmate. The government introduced evidence of petitioner's Oklahoma murder conviction during the sentencing phase of his federal capital case, and he was subsequently sentenced to death.

Petitioner contends that following the imposition of his death sentence, newly discovered evidence came to light of his factual innocence of the Oklahoma murder and related federal robbery. In response to this new evidence—and within one year of the factual predicate that he asserts made its discovery possible (two days short of exactly one year)petitioner filed a petition for post-conviction relief in Oklahomastate court and this § 2254 petition in federal court,3 along with a motion to stay and abate the § 2254 proceeding pursuant to Rhines until he could exhaust his state court remedies.4 Petitioner raises an actual innocence claim both as a freestanding constitutional claim 5 and as a “gateway” to raising his otherwise time-barred constitutional claims, including ineffective assistance of trial and appellate counsel and suppression of exculpatory evidence. See Schlup v. Delo, 513 U.S. 298, 315, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ( [A] claim of innocence is ... a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits.” (quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853) (internal quotation marks omitted)).

The magistrate judge recommended the motion to stay be denied and the § 2254 petition be dismissed without prejudice because the petition was not mixed as in Rhines and because a stay was not warranted. The district court adopted the Report and Recommendation and dismissed the petition. It then denied petitioner's Motion to Alter and Amend Judgment, as well as his request for a certificate of appealability.

Petitioner filed a timely notice of appeal and sought a certificate of appealability from this court, which was granted.


We review de novo the district court's refusal to grant a stay on the basis that the petition was not mixed. Cummings v. Sirmons, 506 F.3d 1211, 1222 (10th Cir.2007). We review for abuse of discretion the court's alternative denial of petitioner's particular request for a stay due to his failure to show good cause. See Rhines, 544 U.S. at 278–79, 125 S.Ct. 1528.

A prisoner challenging a state conviction normally has one year to file a federal habeas petition, starting from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” § 2244(d)(1)(A). But if the petitioner alleges newly discovered evidence, the filing deadline is one year from “the date on which the factual predicate of the claim ... could have been discovered through the exercise of due diligence.” § 2244(d)(1)(D). Based on petitioner's habeas petition, we assume without deciding that the factual predicate of his actual innocence claim could not have been discovered with due diligence before the alleged triggering event, making the claim timely under § 2244(d)(1)(D). In addition, a habeas petition's claims generally must be exhausted in state court before a federal court may review them. § 2254(b)(1)(A).

Petitioners were not always required to exhaust all of their claims in state court prior to filing a federal habeas petition in order to preserve each claim for federal review. Prior to Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), they were able to proceed piecemeal as long as their failure to assert the later grounds in a prior petition was not found to be “an abuse of the writ.” See Sanders v. United States, 373 U.S. 1, 17, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); see also Lundy, 455 U.S. at 514 n. 6, 102 S.Ct. 1198 ([A] second or successive petition may be dismissed ... [where] new and different grounds are alleged, [if] the judge finds that the failure of the petitioner to assert those grounds in a prior petition constituted an abuse of the writ.” (quoting 28 U.S.C. § 2254 Rule 9(b) (1976) (amended 2004))). The majority of Courts of Appeals “permitted the District Courts to review the exhausted claims in a mixed petition containing both exhausted and unexhausted claims.” Lundy, 455 U.S. at 513 n. 5, 102 S.Ct. 1198.

Then, in Lundy, the Court held that before a federal district court may review a habeas petition, all of its claims must be exhausted in state court. Id. at 522, 102 S.Ct. 1198. This “total exhaustion rule” requires a district court to dismiss habeas petitions containing both exhausted and unexhausted claims. Id. In deciding to require total exhaustion, the Court wanted to thwart prisoners intentionally withholding grounds for habeas relief “in the hope of being granted two hearings rather than one.” Id. at 521, 102 S.Ct. 1198 (quoting Sanders, 373 U.S. at 18, 83 S.Ct. 1068) (internal quotation marks omitted). The Court in Sanders was concerned about “abuse of the writ,” noting that [n]othing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex, harass, or delay.” 373 U.S. at 17–18, 83 S.Ct. 1068 (discussing successive petitions). Lundy was decided in light of the doctrine that “one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter.” 455 U.S. at 521, 102 S.Ct. 1198 (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)) (internal quotation marks omitted). The Court determined that total exhaustion “promotes comity and does not unreasonably impair the prisoner's right to relief.” Id. at 522, 102 S.Ct. 1198.

Significantly, Lundy was decided at a time when petitioners could return to federal court after exhausting their unexhausted claims to “present their perfected petitions with relative ease,” as there was no statute of limitations on filing federal habeas petitions. Rhines, 544 U.S. at 274, 125 S.Ct. 1528. Only later did Congress enact the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which introduced a one-year statute of limitations for filing federal habeas petitions. § 2244(d)(1)6; see also Rhines, 544 U.S. at 274, 125 S.Ct. 1528. Congress enacted AEDPA to “reduce delays in the execution of state and federal criminal sentences, particularly in capital cases and to streamline the process by requiring a petitioner to exhaust all his claims in state court before filing his federal petition. Rhines, 544 U.S. at 276–77, 125 S.Ct. 1528 (quoting Woodford v. Garceau, 538 U.S. 202, 206, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003)) (internal quotation marks omitted). At the same time, AEDPA “preserved Lundy's total exhaustion requirement.” See id. at 274, 125 S.Ct. 1528 (citing § 2254(b)(1)(A)).

Almost a decade after Congress enacted AEDPA, the Supreme Court unanimously acknowledged in Rhines that the interaction between Lundy's total exhaustion requirement and AEDPA's statute of limitations created at least two risks: (1) ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims”; and (2) “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.” Id. at 275, 279, 125 S.Ct. 1528.

In “recogniz[ing] the gravity of th[e] problem,” the Court sanctioned the stay-and-abeyance procedure. Id. at 275–78, 125 S.Ct. 1528. District courts have the prerogative to decide whether a stay is warranted given the specific circumstances of a case. Id. at 276, 125 S.Ct. 1528 (cit...

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