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Beers v. Warden, New Hampshire State Prison

United States District Court, D. New Hampshire

September 13, 2018

Timothy Beers
v.
Warden, New Hampshire State Prison

          REPORT AND RECOMMENDATION ON THE STAY MOTIONS

          Andrea K. Johnstone United States Magistrate Judge.

         Timothy 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. No. 22).

         Background

         Beers 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.

         This 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).

         Beers 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 3).[1] 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.

         Discussion

         I. Stay Motions (Doc. Nos. 19, 22)

         For 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.

         This 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.

         II. Beers's Options

         At this 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 claims.

         If 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. § 2244(b).

         If 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 U.S.C. ...


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