Supreme Court Modifies the Second Circuit's Rule Concerning the Staying of Mixed Habeas Petitions

Rhines v. Weber, No. 03-9046, 544 U.S. ___ (March 30, 2005) (Op. by O'Connor): In this case, the Supreme Court addressed the question of the proper procedure a district court should employ when faced with a mixed habeas petition -- i.e., one containing both exhausted claims and unexhausted claims -- given 28 U.S.C. § 2254(b)(1)(A)'s command that no writ can "be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State." The Court reversed the decision below from the Eighth Circuit, which ruled that "a district court has no authority to hold a habeas petition containing unexhausted claims in abeyance absent truly exceptional circumstances." Under the Eighth Circuit rule, a district court must generally dismiss mixed petitions, even in cases where AEDPA's one-year clock has already run, see 28 U.S.C. § 2244(d)(2), and thus where dismissal essentially forecloses future federal habeas review of the petitioner's claims.

The Supreme Court did not, however, adopt the Second Circuit's contrary position in such situations. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), Judge Newman ruled that when a district court is confronted with a mixed petition, and where an outright dismissal of the petition "[w]ould jeopardize the timeliness of a collateral attack" due to AEDPA's one-year statute of limitations, id. at 380, a stay of the habeas proceedings (holding the exhausted claims in abeyance while the petitioner returned to state court to exhaust the unexhausted claims) "will be the only appropriate course." Id.

Instead, Justice O'Connor ruled for a unanimous Court that "stay and abeyance should be available only in limited circumstances." Op. at 7. The Court explained, first, that "stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. (emphasis added). Second, even where there is good cause for the failure to exhaust, a district court should not employ the stay-and-abeyance procedure "when [the petitioner's] unexhausted claims are plainly meritless." Id.

Finally, the Court adopted Zarvela's requirement that even when a district court stays a mixed petition to allow the petitioner to exhaust the unexhausted claims in state court, it "should place reasonable time limits on a petitioner's trip to state court and back." Op. at 7. Indeed, the Court specifically cited Zarvela's requirement that when a habeas petition has been stayed, the petitioner must file a state petition (to exhaust the unexhausted claims) "within a brief interval, normally 30 days, after the stay is entered and [must] return[] to federal court wihin a similarly brief interval, normally 30 days after state court exhaustion is completed." Id. (citing Zarvela, 254 F.3d at 381.

As a last point, the Court emphasized that even where a stay is not appropriate, "the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims . . . ." Op. at 8.

Justice Stevens and Justice Souter each wrote a short, one-paragraph concurrence. The gist of each is similar in downplaying the opinion's "good cause" requirement. As Justice Stevens wrote, "While I join the Court's opinion, I do so on the understanding that its reference to 'good cause' for failing to exhaust state remedies more promptly . . . is not intended to impose the sort of strict and inflexible requirement that would 'trap the unwary pro se prisoner."

Comment: Rhines is obviously not a great decision for those who practice in the Second Circuit. Of course, much will depend on how courts will construe the "good cause" requirement created by this case, something not at all fleshed out by Justice O'Connor. But regardless of how much teeth courts put into this requirement, the plain fact is that, often, habeas petitioners have no excuse whatsoever for failing to exhaust certain claims -- other than the fact that they are not lawyers and were acting pro se when they filed their state petitions or motions. Simply being pro se is of course insufficient to satisfy the "good cause" requirement, so it is quite possible that Rhines will result in many more dismissals of mixed petitions. Where the Rhines test cannot be met, the petitioner should obviously opt for the choice of deleting the unexhausted claims and proceed on the exhausted ones.