United States District Court, D. New Hampshire
REPORT AND RECOMMENDATION ON THE STAY
K. Johnstone United States Magistrate Judge.
Beers has petitioned this court for a writ of habeas corpus
under 28 U.S.C. § 2254, challenging his July 2013
conviction on four counts of pattern aggravated felonious
sexual assault, for which he is serving a ten- to thirty-year
sentence. Before this court are Beers's motion to lift
the stay (Doc. No. 19) in this action, and Beers's
later-filed motion to continue the stay in this action (Doc.
initiated this action by filing a place-holder petition (Doc.
No. 5), entitled, “Motion for Stopping My AEDPA Clock,
” to stop the statute of limitations from running. That
petition did not list any claims for relief.
court directed Beers to file an amended petition listing all
of his claims, then granted Beers's motion to stay this
action before Beers listed any of his claims, so that Beers
could litigate a pending state habeas petition. See Oct. 13,
2016 Order. The Superior Court denied the state habeas
petition in September 2017, and in November 2017, the New
Hampshire Supreme Court declined to accept Beers's appeal
of that order. See Beers v. Zenk, No. 2017-0587
(N.H. Nov. 27, 2017) (Doc. No. 20-4, at 2).
next filed a motion to lift the stay (Doc. No. 19) here,
along with an amended § 2254 petition, Doc. No. 20,
listing, for the first time, all of the claims he is
asserting in this case. The court, in the August 14, 2018
Order (Doc. No. 21), took the motion to lift the stay under
advisement, upon finding that Beers's amended petition
was a “mixed petition, ” including both exhausted
claims (numbered by the court as Claims 2, 4, 5, and 6) and
unexhausted claims (numbered as Claims 1 and
The court in that Order (Doc. No. 21) specifically directed
Beers to choose whether to forego Claims 1 and 3; or to move
to continue the stay, giving Beers an opportunity to show
that there was good cause for his failure to exhaust state
remedies on Claims 1 and 3 previously. Beers filed a
bare-bones motion to continue the stay (Doc. No. 22) in
response to the August 14, 2018 Order (Doc. No. 21) which
does not attempt to explain why he has failed, to date, to
exhaust Claims 1 and 3.
Motions (Doc. Nos. 19, 22)
reasons stated in the August 14, 2018 Order (Doc. No. 21),
Beers's Amended Petition (Doc. No. 20), which is the
operative petition in this case, is a “mixed”
§ 2254 petition, as it includes both exhausted and
unexhausted claims. See Rhines v. Weber, 544 U.S.
269, 275 (2005). A federal district court cannot grant relief
on any claims in such a petition, and such petitions may be
dismissed without prejudice. See Id. at 275.
Alternatively, if “there was good cause for the
petitioner's failure to exhaust his claims first in state
court, ” the court has discretion to stay the petition,
while the petitioner returns to state court to exhaust his
state remedies on the unexhausted claims. Id. at
277. It would likely be an abuse of discretion not to stay a
“mixed” petition if: the unexhausted claims are
“potentially meritorious, ” the petitioner has
not engaged in intentionally dilatory tactics, and there is
good cause for the inmate's failure to exhaust his claims
before he filed his § 2254 petition. Id. at
277-78. “In such a case, the petitioner's interest
in obtaining federal review of his claims outweighs the
competing interests in finality and speedy resolution of
federal petitions.” Id. at 278.
court's August 14, 2018 Order (Doc. No. 21) directed
Beers, if he did not intend to forego Claims 1 and 3, to file
a motion to continue the stay, showing good cause for his
prior failure to exhaust state remedies on Claims 1 and 3.
Beers's motion to continue the stay does not state any
reasons why the stay should continue. Beers's motion
(Doc. No. 22) offers no justification at all for Beers's
failure to exhaust Claims 1 and 3 while this action was
stayed initially in 2016 upon Beers's motion, see Doc.
No. 10, while Beers, through post-conviction counsel in the
state courts, litigated a state habeas petition. Beers has
not argued that any of the exceptions to the exhaustion
requirement apply as to Claims 1 and 3, see 28 U.S.C.
§§ 2254(b), (c). Nothing before this court suggests
any grounds for finding good cause for Beers's failure to
exhaust Claims 1 and 3 previously. Accordingly, the district
judge should deny the motion to continue the stay (Doc. No.
22) and grant the motion to lift the stay (Doc. No. 19),
because Beers has not demonstrated good cause to continue it.
point, Beers has two choices. He can either: (1) forego
Claims 1 and 3 to allow the remaining claims in the petition
to proceed, or (2) suffer the dismissal of his entire
petition, including his exhausted claims, effectively losing
the chance for this court to consider the merits of any
Beers chooses the first alternative, he must file a motion to
amend the petition to drop Claims 1 and 3 by the deadline set
by the court. In choosing the option of foregoing Claims 1
and 3, he will risk losing the opportunity to litigate those
claims both in this case and in any successive federal habeas
petition challenging the same conviction, due to the
restriction on successive petitions in 28 U.S.C. §
Beers declines to move to drop Claims 1 and 3, this court may
dismiss the entire petition, without issuing any ruling on
the merits of any claim in the petition. Although such a
dismissal would be without prejudice, Beers would likely
confront a formidable statute of limitations problem under 28