United States District Court, W.D. Kentucky, Paducah Division
MEMORANDUM OPINION AND ORDER
King, Magistrate Judge
is a state prisoner who filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Docket # 1). This
matter is before the Court on Petitioner's motion to hold
his petition in abeyance pending presentation of additional
claims to the state courts, to which Respondent has responded
in opposition. (Dockets # 4, 7). The Court referred the
matter to the undersigned magistrate judge, pursuant to 28
U.S.C. § 636, for ruling on non-dispositive motions and
findings of fact and recommendation on dispositive matters.
(Docket # 3). For the reasons below, the Court will DENY the
motion without prejudice (Docket # 4).
present order is not case-dispositive.
undersigned is issuing an order as opposed to submitting a
report and recommendation. Generally, without consent of the
parties, magistrate judges lack authority to deny motions to
hold in abeyance Section 2254 proceedings to allow
petitioners to exhaust state-court remedies because such
denial can be dispositive of the claims being exhausted in
state court. Mitchell v. Valenzuela, 791 F.3d 1166,
1167 (9th Cir. 2015); Bastidas v. Chappell, 791 F.3d
1155, 1157 (9th Cir. 2015); see generally Brian R.
Means, Federal Habeas Manual § 9C:70 (2018) (“stay
pending exhaustion”). However, the general rule does
not apply when the magistrate judge denies a motion to hold
in abeyance without prejudice. See Ceja v. Scribner,
No. LA CV 07-00606-VBF-KES, 2016 WL 3996152, at *6 (C.D. Cal.
Jan. 19, 2016) (“While the magistrates in
Mitchell and Bastidas told the petitioners
“no, ” Magistrate Hillman merely told Petitioner
to ‘try again' by filing a corrected stay
facts and procedural history
presents a two-part claim, in his own words, as follows:
“The [Kentucky] Supreme Court erred in denying [his]
claim that his right to a fair cross-section of jurors [was
denied]  by randomly selecting juries in Christian County
and then  destroying records relating to the random
selection so [he] cannot collect information necessary to
prove a fair cross-section claim.” (Petition, Docket #
1, p. 5). Upon direct appeal, the Kentucky Supreme Court held
that both parts of the claim are without merit. Adams v.
Commonwealth, 2016-SC-000627-MR, 2017 WL 6379489 (Ky.
Dec. 14, 2017). Petitioner argues that the Kentucky Supreme
Court's adjudication “resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States” as contemplated by 28
U.S.C. § 2254(d)(1). (Docket # 1, p. 6).
motion to hold petition in abeyance, Petitioner asserts that
he “has multiple issues relative to ineffective
assistance of counsel which he wishes to submit to the State
trial court pursuant to RCr [Kentucky Rules of Criminal
Procedure] 11.42 … [e]specially, the claim of
ineffective assistance of counsel that relates to the claim
presented in [his petition].” (Docket # 4, p. 1).
a district court will not stay a petition containing only
fully-exhausted claims. See Worley v. Bracy, No.
1:18-cv-00050, 2018 WL 4443137, at *2 (N.D. Ohio July 11,
2018) (“Where a petitioner presents a petition
containing only exhausted claims, courts have held that the
stay and abeyance procedure is not available”).
However, a district court may exercise its discretion to stay
such a petition on equitable grounds. See Andrews v.
Horton, No. 4:18-CV-12686, 2018 WL 4637310, at *1 (E.D.
Mich. Sept. 27, 2018) (“A federal district court has
the authority to stay a fully exhausted federal habeas
petition pending the exhaustion of additional claims in the
exercising its discretion, a district court should consider
whether there is good cause to overcome the presumption that
it has a duty to exercise its jurisdiction to decide
fully-exhausted claims now (as opposed to waiting and
deciding them later, after exhaustion of all claims). In
determining whether good cause is present, considerations of
federal-state comity and judicial economy dominate. See
Bowling v. Haeberline, 246 Fed.Appx. 303, 306 (6th Cir.
2007) (A habeas court is entitled to delay a decision in a
habeas petition that contains only exhausted claims
“when considerations of comity and judicial economy
would be served”) (quoting Nowaczyk v. Warden, New
Hampshire State Prison, 299 F.3d 69, 83 (1st Cir.
these principles, in Clinton v. Cook, No.
2:16-cv-0573, 2017 WL 2775115, at *2 (S.D. Ohio June 27,
2017), the district court stayed the petition, which
contained only fully-exhausted claims because a pending
post-conviction action in state court “raises multiple
claims of ineffective assistance of trial counsel, any one of
which has the potential to gain Petitioner a new trial and
effectively to moot the federal case.” In contrast, in
Worley v. Bracy, No. 1:18-cv-00050, 2018 WL 4443137,
at 42 (N.D. Ohio July 11, 2018), the district court denied
the motion to stay, in part, because the petitioner had not
shown that his current appeal in state court will “lead
to a different result.”
v. Weber is distinguishable.
Rhines v. Weber, 544 U.S. 269 (2005), the petitioner
filed a “mixed” petition containing both
exhausted and unexhausted claims. The Supreme Court held that
the district court should stay, rather than dismiss, the
petition “if the petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
Id. at 278. The Supreme Court explained that stay
(as opposed to dismissal of the entire petition) has the
beneficial effect (in many cases) of preserving both
exhausted and unexhausted claims for federal review. This is
because the 1-year period of limitation established by 28
U.S.C. § 2244(d)(2) is not tolled during the pendency of
a federal petition, and the dismissal might have occurred
after or close to the end of the 1-year period. Id.
a petition does not contain any unexhausted claims, however
-- as is the case here -- the Court has no discretion to
dismiss the petition, but may decide to stay it on equitable
grounds.” Clinton v. Cook, No. 2:16-cv-0573,
2017 WL 2775115, at *1 (S.D. ...