Jefferson v. Budge
No. 03-16932 (8-16-05). The 9th holds that Rose by any other interpretation still smells as sweet when it comes to mixed petitions. In this case, the petitioner had a mixed petition in federal court containing exhausted and unexhausted state claims. The court dismissed without giving the petitioner the option to proceed with his exhausted claims. the petitioner went back o state court, exhausted the claims, only to go back to federal court and be thrown out for being time barred. The state argues that the recent Pliler decision by the Supremes, which holds that district courts are not required to give certain advisements (the stay-and-abeyance option) before dismissing a mixed petition. The Supremes did not abrogate Rose, and indeed, quoted from it. The petitioner must be given the option of proceeding, although not necessarily under Pliler given further advisements. This is especially important here, because Rose has thorns, and the petition, if dismissed, would already be outside the AEDPA time limits. The 9th also held that equitable tolling occurred and so Rose can be cultivated to allow him to refile in a timely manner.
posted by Jon Sands at 8/18/2005 09:22:00 AM
1 Comments:
I think your summary of this case is confusing and misleading.
First, the district court dismissed the petitioner's habeas petition without affording him an opportunity either to return to state court and exhaust or to proceed in federal court on his unexhausted claims "and let the unexhausted claims fall by the wayside." The Ninth Circuit held that this was error, particularly since the AEDPA statute of limitations had run, meaning that the District Court's dismissal deprived the petitioner of a federal forum on his federal constitutional claims. Instead, the Ninth said, the District Court should have afforded the petitioner the opportunity either to return to state court to exhaust his unexhausted claims or to amend his petition to delete his unexhausted claims and proceed to an adjudication of a fully exhausted, amended petition. It is worth noting that the Ninth also cited and relied to some extent on the United States Supreme Court's recent and very important case on the "stay and abey" procedure, Rhines v. Weber, __ U.S. __, 125 S.Ct. 1528 (2005). Interestingly, the Ninth did not specifically mention stay and abey as an option, but it is certainly something the district court will need to consider on remand in light of the statute of limitations problems an outright dismissal of the claims would present.
Also, as an aside, the discussion of Pliler v. Ford is kind of off the main point of the case: in that discussion, the Ninth was merely rejecting the respondent's (clearly wrong) argument that Pliler somehow overruled Rose on the issue of what to do with mixed petitions (as opposed to what the court has to tell petitioners, an issue which Pliler very clearly did rule on).
This is a pretty garden variety mixed petition case, and nothing to get too excited about.
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