federal court in order to avoid the running of the statute of limitations on those claims.
In the usual case, therefore, a petitioner may leave his/her exhausted claims in limbo while pursuing his/her unexhausted claims in state court with no fear of losing the right to present those claims in federal court. The mere existence, therefore, of the newly enacted statute of limitations does not favor holding an exhausted petition in abeyance over dismissing it without prejudice.
Notwithstanding how the statute of limitations will likely work in future cases, the uncertainty surrounding how the statute of limitations will operate in this case, may provide a basis for the court to hold Ashmus' exhausted petition in abeyance. First, Ashmus has not yet filed his unexhausted claims in state court; consequently, § 2244(d)(2) is not tolling the statute of limitations on any of his claims. Instead, to avoid the preclusive effect of the statute of limitations petitioner has been forced to rely on this Court's equitable tolling of the limitations period. Unfortunately, however, it is not absolutely certain that this Court has the authority to toll the statute of limitations. The Ninth Circuit stated in Calderon v. United States District Court (Beeler), 112 F.3d 386 (9th Cir. 1997) that 28 U.S.C. § 2244(d) is a statute of limitations subject to equitable tolling and the Supreme Court denied the petition for writ of mandate in Beeler. In re Arthur Calderon, Warden, 1997 WL 339283 (1997). However, the potential remains that the Supreme Court will find that a district court may not equitably toll the AEDPA's statute of limitations. If the Supreme Court made such a finding and this Court had dismissed Ashmus' federal petition, all of Ashmus' claims--both exhausted and unexhausted--would be barred from federal court consideration. Consequently, Ashmus' options upon the threat of dismissal of his federal petition are equally unattractive. First Ashmus could request the federal court to proceed on his exhausted claims petition and face the substantial likelihood that once his now-unexhausted claims are ripe for adjudication in federal court they would be dismissed as abusive of the writ. See, e.g., McCleskey v. Zant, 499 U.S. 467, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991); Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148, 83 S. Ct. 1068 (1963) ("Nothing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation, to entertain collateral proceedings whose only purpose is to vex harass, or delay."); Fetterly, 997 F.2d at 1301 (recognizing the encumbrances that attach to subsequent petitions and noting the growing tendency of the Supreme Court to "shut the door" on second petitions); Martinez-Villareal v. Stewart, 118 F.3d 628, 633, 1997 WL 351258 (9th Cir. 1997) (noting that if a federal court proceeded on a petitioner's exhausted claims, "the abuse of the writ doctrine probably would...preclude federal review of the remaining claims once those claims had been exhausted in state court and raised in a second petition."). Or Ashmus could allow his federal petition to be dismissed and face the slight, yet very real, possibility that the Supreme Court will interpret § 2244(d) in such a way as to preclude the presentation of all of his claims.
On the other hand, if Ashmus' petition were not dismissed, a finding that § 2244(d) could not be tolled would not have as devastating of an effect. Ashmus' federal petition represents a secure anchor to federal court jurisdiction to which he could possibly relate back later-exhausted claims under Federal Rule of Civil Procedure 15(c). The abeyance procedure therefore charts a safe course for Ashmus as he attempts to pass between the Scylla and Charybdis of this litigation. Consequently, the uncertainty surrounding the application of the AEDPA's limitations period, weighs heavily in favor of the Court's exercising its discretion to hold the exhausted petition in abeyance.
B. Judicial Efficiency
Ashmus also argues that permitting petitioners to file exhausted petitions that will be held in abeyance pending state court review of unexhausted claims facilitates the discharge of the Court's obligations in this context. When presented with a convicted capital offender's claims for relief, the district court faces two essential duties. The Court must take all steps necessary to ensure prompt resolution of the matter and give full and fair consideration to all of the issues presented by the case. In re Blodgett, 502 U.S. 236, 239, 116 L. Ed. 2d 669, 112 S. Ct. 674 (1992). Achieving these two goals often requires conflicting acts and district courts are regularly forced to fashion creative solutions to either maximize promptness without reducing fairness or maximize fairness without reducing promptness. The abeyance procedure used by various courts throughout the country was one such solution.
By utilizing an up-front exhaustion analysis, the procedure previously employed by this Court ensured that all of the claims petitioner wished to have presented to federal court would be exhausted the first time the petitioner presented the petition for adjudication. On the other hand, without an antecedent federal exhaustion review, a petitioner must engage in the state exhaustion proceedings while facing the risk that a claim the petitioner thought was exhausted
would actually be found by the federal court to be unexhausted.
In such a circumstance, the federal court would have no efficient and fair course of action--it could delay proceedings for the purpose of exhausting the unexhausted claim
or it could proceed and likely preclude federal review of the unexhausted claim.
Permitting petitioners to present their claims to federal court in advance of total exhaustion also eliminates one method for petitioners to abuse the exhaustion rules in order to create unnecessary delay. Theoretically, a petitioner could intentionally fail to present certain claims to state court, claiming that he/she believed that they had already been exhausted. A district court would retain the discretion to dismiss such a claim if the record demonstrated that the petitioner was not acting in good faith or was deliberately seeking to present his claims in a piecemeal fashion, Neuschafer v. Whitley, 860 F.2d at 1480 (9th Cir. 1988) (Alacorn, J. concurring); however, without such a record, the federal court would likely permit the petitioner to return to state court with the unexhausted claims and substantial delay would follow. Farmer, 98 F.3d at 1558. On the other hand, if the federal court informed petitioners which claims were exhausted before the state habeas proceedings began, petitioners could not then later claim that they believed that the claims were exhausted. As a result, federal courts would face fewer unexhausted claims and experience less delay.
The Court finds, therefore, that allowing petitioners to present their claims to federal court in advance of state habeas proceedings and holding the exhausted claims in abeyance
furthers the goal of judicial efficiency. See, e.g., Arango v. Wainwright, 716 F.2d 1353 (11th Cir. 1983) (holding a federal habeas proceeding in abeyance to permit state court exhaustion "in the interests of judicial efficiency"). While courts in this Circuit may no longer be able to hold mixed petitions in abeyance, they can permit petitioners to present their claims to the Court before total exhaustion. This presentation would not be for the purpose of immediate adjudication of any claims, but simply to allow the federal court to rule on what claims have already been exhausted. The Court would then strike the unexhausted claims so they can be presented to state court and could allow the exhausted claims to lay dormant until all of petitioner's claims were ripe for federal court adjudication. Such a procedure would efficiently present all claims to state and federal courts without treading on comity concerns.
The Court finds therefore that the uncertainty surrounding the newly enacted statute of limitations and the goal of judicial efficiency weigh heavily in favor of holding Ashmus' petition in abeyance. In addition, the Court finds that none of Ashmus' actions, to date, favor dismissal of his petition.
Accordingly, in a separate order, the Court will identify any unexhausted claims included in the currently filed petition. Those claims will be struck and petitioner will be instructed to file those claims, along with any other known unexhausted claims, in state court within thirty days of the filing of that order. The Court will then hold the remainder of petitioner's claims in abeyance pending exhaustion of the claims timely filed in state court.
IT IS SO ORDERED.
THELTON E. HENDERSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT