Amicus Curiae Brief — Pliler v. Ford

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“ ) CodChiair, Amicus Committee — MATTHEW M. SHoRS

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© Sacramento, CA 95814 ADAM J. COATES**

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QUESTIONS PRESENTED

1. Whether the dismissal of a “mixed” habeas petition is

improper unless the district court informs the petitioner about

the possibility of a stay of the proceeding pending exhaustion

of state remedies and advises the petitioner with respect to

the statute of limitations in the event of any refiling.

2. Whether a second, untimely habeas petition may relate

back to a first habeas petition, where the first habeas petition

was dismissed and the first proceeding is no longer pending.

-ii-

TABLE OF CONTENTS

QUESTIONS PRESENTED ...............sscsssossssesssseesescesessrroess i

TABLE OF AUTHORITIEG............:ccccccccsseeseeeseeeeeeeeeeneeenees iv

INTEREST OF AMICUS CURIAE .......0cccccssessessessseeseesneeneeees ]

STATEMENT OF THE CASE ...........:ccccsssssessessesseeeneeeneenneees |

SUMMARY OF ARGUMENT.........:.:ccccecsssseeseeeeeeeesenneeneeees 5

ABISUGEINY .00cccccccesescoccesossonscssssssosesossossssessscosssnsnnesneinennes 6

I. ASTAY PENDING EXHAUSTION EFFEC-

TUATES THE ESTABLISHED RULE THAT

THE FILING OF A MIXED PETITION DOES

NOT FORECLOSE FEDERAL REVIEW. .............:00000+ 6

A. This Court’s Decisions Protect The

Right Of A Prisoner Who Files A

Mixed Petition To Return To Federal

Court After Fully Exhausting His

CRIB ccccccccscescesessentttileastseteml 6

B. A Stay Is Necessary To Effectuate

The Right To Return To Federal

COGTIIR, acccoscosnesccsensccsstenstinennenmemmensnianaaae 8

II. THE STAY PROCEDURES CHALLENGED

BY PETITIONER ARE WELL WITHIN A

DISTRICT COURT’S DISCRETIONARY

A. Unexhausted Claims May Be De-

leted By The Prisoner Or Dismissed

By TD CIEE .ccccccscecacenscrsscennncnsecndamtsmmmeiaamaal 11

B. A Mixed Petition, Once Purged Of

Unexhausted Claims, May Be Stayed...............0000+ 12

-iii-

TABLE OF CONTENTS

(continued)

C. Subsequently Exhausted Claims May

Be Added To A Stayed Petition By

Way Of Amendment Under Rule 15

Ill. THE STAY PROCEDURES CHALLENGED

BY PETITIONER ARE SENSIBLE AND

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IV. THIS COURT SHOULD AFFIRM THE

DECISION BELOW

CONCLUSION

PPS SSE SEES ESSE SEES SESE HEE SHEET EROS HOES

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PPS HSER HSE ee Hee He Hee

-iv-

TABLE OF AUTHORITIES

CASES

Akins v. Kenney,

341 F.3d 681 (8th Cir. 2003)... ....eccccccececcneeeeeees 22

Anthony v. Cambra,

236 F.3d 568 (9th Cir. 2000) .............eeccceeeceeeeneeeneees 29

Arkadelphia Milling Co. v. St. Louis South-

western Ry. Co.,

— —————————————— 12

Baldwin v. Reese,

RI i y——————————————————E 10

Burris v. Farley,

Oy 17

Calderon v. Ashmus,

I i ——————————————— 18

Calderon v. U.S. Dist. Ct.,

134 F.3d 981 (9th Cir. 1998).................. 11, 12, 25, 26

Carey v. Saffold,

I UE 16

Castro v. United States,

Ae 28

Clinton v. Jones,

ee 12

Colorado River Water Conservation Dist. v.

United States,

es cence 14

Crews v. Horn,

I I 14, 22

Darr v. Burford,

es Se ccnrrsemsmeinneaisnnnnninnenineiiminniiniidnies 13

-V-

TABLE OF AUTHORITIES

(continued)

Deakins v. Monaghan,

RR 17

Dean v. United States,

278 F.3d 1218 (11th Cir. 2002)... cece eeeeee ee 18

Duncan v. Walker,

CT passim

Fama v. Comm'r of Corr. Servs.,

OS OE 18

Freeman v. Page,

208 F.3d 572 (7th Cir. 2000) ............2.ccccceecceeeeee 14, 21

Granberry v. Greer,

rs ST iniitnritctnnniertnnniseniinniemniemmenenesl 6

Hughes Aircraft Co. v. Jacobson,

eee 15

Landis v. N. Am. Co.,

i icinertenenrhirinenrnaertnencsiiieisia 12

Lonchar v. Thomas,

$17 U.S. 314 (1996)................. iii pipianiiiinieaheaiaiiie 28

Morales v. TransWorld Airlines, Inc.,

ee D 20

Nowaczyk v. Warden,

a ne BE ceerccrertiernmnmecnmenamnanen 22

O Sullivan v. Boerckel,

ical 10

Oubichon v. N. Am. Rockwell Corp.,

4B2 F.26 SED (9Gs Cis. 1973). n2neeccncceoceceececceceeeeeeeee- 17

Palmer v. Carlton,

276 F.3d 777 (6th Cir. 2002) .............ccccccceeceeeeee 22, 23

-vi-

TABLE OF AUTHORITIES

(continued)

h v. Allstate Ins. Co.,

Ey ———————————————E 14, 15

Rose v. Lundy,

PS OT passim

Slack v. McDaniel,

ET ——————————————EE passim

Stewart v. Martinez-Villareal,

EEE passim

Strickignd v. Washington,

BO ———————————————————-- 6

United States v. Craycraft,

NG 19

United States v. Duffus,

GS OE 19

United States v. Pittman,

GS i 19

Wilton v. Seven Falls Co.,

a ae Ce cnrcnrnnnesnninmnnsinenmmmnens 16

Zarvela v. Artuz,

254 F.3d 374 (2d Cir. 2001)................... 12, 21, 23, 29

STATUTES

ee 18

NG 1, 10, 15, 16

p> 13, 15, 23

LEGISLATIVE HISTORY

rm RR 09 As

-vii-

TABLE OF AUTHORITIES

(continued)

OTHER AUTHORITIES

| Randy Hertz & James S. Liebman, Fed-

6A Charles Alan Wright et al., Federal

Practice and Procedure (1990) inseehticeneetnsmmeseneisemnets 19

INTEREST OF AMICUS CURIAE'

The National Association of Criminal Defense Lawyers

(“NACDL”) is a non-profit organization with direct national

membership of over 10,000 attorneys, in addition to more

than 28,000 affiliate members from all 50 states. Founded in

1958, NACDL is the only professional bar association that

represents public and private criminal defense lawyers at the

national level. The American Bar Association recognizes

NACDL as an affiliated organization with full representation

in the ABA House of Delegates.

NACDL’s mission is to ensure justice and due process

for the accused; to foster the integrity, independence, and

expertise of the criminal defense profession; and to promote

the proper and fair administration of criminal justice, includ-

ing issues involving federal habeas corpus. NACDL has

filed amicus curiae briefs in this Court in many cases involv-

ing federal habeas corpus, including cases raising issues

similar to the one presented here. See Slack v. McDaniel,

529 U.S. 473 (2000); Stewart v. Martinez-Villareal, 523 U.S.

637 (1998).

STATEMENT OF THE CASE

In Rose v. Lundy, 455 U.S. 509 (1982), this Court held

that a “mixed” habeas petition — a petition raising both ex-

hausted and unexhausted claims — should in most cases be

dismissed “without prejudice,” allowing the prisoner to ex-

haust state remedies and then return to federal court with a

perfected petition. Fifteen years later, Congress enacted the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), which includes a one-year statute of limitations

for the filing of federal habeas petitions. 28 U.S.C.

§ 2244(d)(1)(A). This case arises at the intersection of those

' This brief is filed with the written consent of both parties. No party or

counsel for a party to this case authored this brief in whole or in part, and

no person or entity other than amicus curiae, its members, or its counsel

has made a monetary contribution to the preparation or submission of this

brief.

2p

rocedures endorsed by Rose for a return

aan pian threatened by the AEDPA limitations

period. At issue are the efforts of the federal courts to pre-

serve Rose and cases like it, and to ensure that application of

Rose procedures under AEDPA does not have the unintendeu

effect of forever foreclosing federal court review.

1. In 1988, respondent Richard Herman Ford (“Ford”)

was convicted in two separate state-court proceedings of

first-degree murder and conspiracy to commit murder (the

“Weed” case) and conspiracy to commit murder and at-

tempted murder (the “Loguercio” case). Pet. App. 16, 18.

Ford was sentenced to life without the possibility of parole.

Both convictions became final in 1993. Jd. at 16, 19.

2. On April 24, 1996, AEDPA became effective. Under

AEDPA’s one-year statute of limitations (as applied to con-

victions final before its passage) Ford was required to file

any federal habeas petitions within one year of AEDPA s

effective date, or by April 24, 1997. See id. at 21. On Apnil

19, 1997, within AEDPA’s one-year period, Ford submitted

timely pro se federal petitions challenging his convictions in

both the Weed and Loguercio cases (the “first petitions”). Id.

at 16, 19. The filing of those petitions did not toll the

AEDPA statute of limitations, which continued to run. See

Duncan v. Walker, 533 U.S. 167 (2001).

3. By the time the magistrate judge issued reports on the

petitions in August and September of 1997, the AEDPA stat-

ute of limitations had expired. Pet. App. 17, 20. The magis-

trate judge found that some, though not all, of Ford’s claims

in each of the cases were a. “y- gave a two

ions for ing. First, Ford co smiss his unex-

coed end ye Mer in federal court on his exhausted

> The appendix to the petition for certiorari is abbreviated as “Pet. App.”

All citations are to section A of the appendix.

> For a full description of the state court proceedings, see Respondent's

Brief.

eee ee eee

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claims only. If Ford so chose, however, the magistrate judge

indicated that it would “not later rule” on the claims yet to be

exhausted, and would require Ford to file a statement “for-

ever waiv[ing] his right to assert” the unexhausted claims “in

the present habeas petition.” J.A. 52 (emphasis in original).

Alternatively, the court would dismiss the entire mixed

petition “without prejudice,” so that Ford could return to state

court to exhaust all of his claims. Pet. App. 17, 19. At this

point, Ford expressed concerns about AEDPA’s statute of

limitations. J.A. 53. But the magistrate judge did not inform

Ford that the AEDPA time period had run already and that as

a result, absent grounds for equitable tolling, a dismissal

“without prejudice” would leave Ford unable to bring any of

his claims before a federal court. Pet. App. 14. Instead, the

magistrate judge assured Ford that, as to the unexhausted

claims, AEDPA’s limitation period “begins to run only when

the factual predicate of the claims could have been discov-

ered through the exercise of due diligence.” J.A. 53.

Under the magistrate judge’s order, Ford was required to

notify the court if and only if he wished to dismiss his unex-

hausted claims and proceed on the exhausted ones. The de-

fault presumption was thus that the court would dismiss the

entire petition without prejudice.* After Ford did not timely

respond, the magistrate judge recommended that both peti-

tions be dismissed without prejudice. Pet. App. 17, 20.

Ford also filed, with both petitions, motions to stay the

proceedings if it were determined that any of his claims were

unexhausted, so that he could exhaust state remedies and then

resume his federal action. Jd. at 14. Under Ninth Circuit

precedent, however, the magistrate judge could not stay

mixed petitions; Ford would have to withdraw his unex-

hausted claims first. /d. at 17, 19. The magistrate judge did

* Any suggestion that Ford somehow failed to comply with the magistrate

judge’s instructions, see Petitioner’s Brief (“Pet. Br.”) at 5, is inaccurate.

Here and throughout the habeas proceedings, respondent promptly and

diligently followed court instructions in pursuing relief.

-4-

not inform Ford of that requirement, and the unexhausted

claims thus remained in the petitions. Jd. at 14. The magis-

trate judge recommended that Ford’s stay motions be denied.

Id. at 17, 19.

The district court adopted all of the magistrate judge’s

recommendations. The Loguercio petition was dismissed

without prejudice on September 11, 1997, and the Weed peti-

tion on October 14, 1997. Jd. at 17, 20.

4. After the dismissals, Ford acted quickly to exhaust all

remaining claims. On September 29, 1997, 18 days after

dismissal, Ford filed a state petition with the California Su-

preme Court seeking relief in the Loguercio case. Id. at 17.

On October 24, ten days after dismissal of the Weed petition,

Ford submitted his state habeas petition in that case. Jd. at

20. On March 25, 1998, the California Supreme Court sum-

marily denied both petitions. Jd. at 18, 20.

5. Ford attempted to return to federal court exactly one

week later, submitting petitions in both cases on April 1,

1998 (the “second petitions”). The state moved for dismissal

on the ground that the second petitions were filed after

AEDPA’s April 24, 1997 cut-off date. Ford argued that he

had diligently litigated his state petitions and second federal

petitions, in reliance on the understanding that the initial

dismissals “without prejudice” would allow him to return to

federal court after exhausting his claims. Ct. App. Appel-

lant’s Rec. 540. The magistrate judge recommended dis-

missal of the second petitions as time-barred under AEDPA,

and the district court agreed. Pet. App. 18, 21. As a result,

neither the magistrate judge nor the district court ever exam-

ined the merits of Ford’s petitions, including the nine con-

cededly timely-filed and exhausted claims set forth in the

initial Loguercio petition, J.A. at 43-53, and the five conced-

edly timely-filed and exhausted claims set forth in the initial

Weed petition, id. at 75-83.

6. In the decision below, the Ninth Circuit reversed. The

court held, first, that the dismissals of Ford’s initial petitions

ee Oe eee

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had been improper. Ford’s decision “to have his timely-filed

. . . petitions dismissed without prejudice was an uniformed

one,” the court found, because the magistrate judge had in-

formed Ford neither of his option to withdraw his unex-

hausted claims and seek a stay nor of the time bar that he

would face if the petitions were dismissed in their entirety.

Pet. App. 15 And because the original dismissals were im-

proper, the second petitions, insofar as they reasserted claims

in the initial petitions, would “relate back” to the filing date

of the initial petitions. Jd. at 31.°

SUMMARY OF ARGUMENT

There is no indication that Con , in

AEDPA, intended to foreclose federal ms of the hone

tional claims of prisoners who file timely but mixed peti-

tions. Such an outcome would run contrary to this Court’s

own decisions, which protect the right of prisoners who file

mixed petitions to return to federal court after presenting

their claims to the state courts. It also would work a real

injustice against pro se prisoners who file petitions that are

timely under AEDPA, only to find that even a good-faith

failure to exhaust one or more claims operates as an absolute

bar to federal review of any of their claims.

Federal courts around the country have nded wi

stay procedures that allow them to hold eden pmsentions

in abeyance pending exhaustion, and to permit amendment

with subsequently exhausted claims under Rule 15(c)’s “rela-

tion back” doctrine. Contrary to petitioner’s broad-based

attack, those Stay procedures fall well within a district court’s

authority, and are entirely consistent with the dictates of

AEDPA and this Court’s decisions. They are a workable

solution, leaving district courts with ample discretion to pre-

5 : ‘

Claims raised only in the second petitions were treated diff

erently. The

court remanded five claims newly asserted in the second Weed petition

for consideration of equitable tolling, and affirmed the dismissal of two

claims newly raised in the second Loguercio petition. Pet. App. 35-39.

Those claims are not at issue before this Court.

é.

vent dilatory or abusive litigation tactics. And in a post-

AEDPA world, they are the only sensible way to effectuate

this Court’s consistent holdings that a mixed petition does

not foreclose post-exhaustion federal review.

ARGUMENT

I. A STAY PENDING EXHAUSTION EFFECTUATES

THE ESTABLISHED RULE THAT THE FILING

OF A MIXED PETITION DOES NOT FORECLOSE

FEDERAL REVIEW.

A. This Court’s Decisions Protect The Right Of A

Prisoner Who Files A Mixed Petition To Return

To Federal Court After Fully Exhausting His

Claims.

1. The requirement that prisoners exhaust state remedies

before federal habeas relief may be granted is not jurisdic-

tional. Granberry v. Greer, 481 U.S. 129, 131 (1987);

Strickland v. Washington, 466 U.S. 668, 679 (1984). Rather,

though it furthers important comity interests, the exhaustion

doctrine creates only a “technical procedural” requirement.

Martinez-Villareal, 523 U.S. at 645. As a result, this Court

has consistently held that the failure to properly exhaust state

remedies cannot “bar the prisoner from ever obtaining federal

habeas review,” id., or “bar the prisoner from raising non-

frivolous claims” that “‘a federal court [has] yet to review.”

Slack, 529 U.S. at 487. The exhaustion rule is not designed

to “‘trap the unwary pro se prisoner.” Rose, 455 U.S. at 520

(citation omitted). .

2. Ina line of cases beginning with Rose, the Court has

applied that principle to mixed petitions. In every one of

those cases, the Court has held that a prisoner’s initial failure

to comply fully with the exhaustion requirement does not

deprive him of an opportunity for federal review. On the

contrary, the Court has insisted on procedures that protect the

right of a prisoner to return to federal court after fully ex-

hausting state remedies.

ows —

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“9.

At issue in Rose was whether a federal court faced with a

mixed petition could consider all of the claims, including

those that were unexhausted. 455 U.S. at 519. The Court

held that principles of comity forbid a federal district court

from deciding claims that have not been presented to the state

courts. /d. at 515,519. At the same time, the Court carefully

left open two alternate routes to federal court review. First, a

prisoner seeking “speedy federal relief’ coulc “delete the

unexhausted claims” and proceed immediately in federal

court on a now fully-exhausted petition, id. at 520 — but run

the risk that a second federal petition raising newly exhausted

claims might be dismissed under the “abuse of the writ” doc-

trine, id. at 521 (plurality opinion). Alternatively, a prisoner

could ensure that all of his claims eventually would be heard

in federal court by forgoing immediate review and opting

instead for “total exhaustion.” Jd. at 522. To effectuate that

choice, district courts were instructed to dismiss the entire

mixed petition so that the prisoner could fully exhaust his

state remedies before returning to federal court with one,

now-perfected, petition. Jd. at 514, 520. As this Court re-

cently explained, dismissal under Rose always “contemplated

that the prisoner could return to federal court after the requi-

site exhaustion.” Slack, 529 U.S. at 486.

That right of return was safeguarded again in Martinez-

Villareal. The question there was whether a federal habeas

claim dismissed as “premature” and then reasserted when

ripe could be barred as “successive” under AEDPA. 523

U.S. at 643. The Court held that there was no bar: “{OJnce

the federal claim has been fairly presented to the state courts,

the exhaustion requirement is satisfied,” and a habeas peti-

tioner may return to federal court. Jd. at 644. “To hold oth-

erwise,” the Court concluded, “would mean that a dismissal

of a first habeas petition for technical procedural reasons

would bar the prisoner from ever obtaining federal habeas

review.” Id. at 645.

-8-

In Slack, the Court confirmed that dismissal of an initial

mixed petition does not preclude federal review once all

claims are exhausted. Rejecting the state’s argument that any

subsequent federal petition could be barred as “successive,”

the Court reaffirmed that prisoners who file mixed petitions

may fully exhaust state remedies and then return to federal

court for a hearing. 529 U.S. at 486-87 (under Rose, subse-

quent federal review may be precluded “only if a prisoner

decline[s] to return to state court and decide[s] to proceed

with his exhausted claims in federal court”). And under the

“total exhaustion” option, claims not pressed in an initial

petition may nevertheless be raised in a subsequent federal

petition after the exhaustion anticipated by Rose. Id. at 487.

In sum, this Court has consistently construed governing

habeas law to protect the right of a prisoner who files a

mixed petition to return to federal court once he has fully

exhausted state remedies. As the Court concluded in Slack,

any other rule “would be contrary to our admonition that the

complete exhaustion rule is not to ‘trap the unwary pro se

petitioner.” Jd. (quoting Rose, 455 U.S. at 520).

B. A Stay Is Necessary To Effectuate The Right To

Return To Federal Court.

1. A procedure for staying federal proceedings on mixed

petitions became necessary after AEDPA was enacted in

1996. When this Court adopted the “total exhaustion” rule in

Rose, there was no statute of limitations for the filing of fed-

eral habeas petitions, and a prisoner seeking to file a second

federal petition after fully exhausting state remedies faced no

time bar. But AEDPA added to the mix a one-year statute of

limitations, which in many cases would convert the proce-

dures endorsed in Rose into a complete bar on federal review.

This case is a perfect example. There is no dispute but

that Ford’s first habeas petitions were timely filed under

AEDPA. But the magistrate judge did not alert Ford, who

was proceeding pro se, that his petitions included unex-

hausted claims until after the AEDPA limitations period had

-9-

expired. When Ford effectively opted for “complete exhaus-

tion” under Rose, the district court dismissed his petitions

without prejudice to post-exhaustion refiling. But by then,

on petitioner’s view, it was too late; the limitations period

had run already, and despite the fact that Ford’s initial peti-

tions were timely filed and included exhausted claims, fed-

eral review of all of his claims was foreclosed.

There is nothing unique about Ford’s case. As Justice

Breyer explained in Duncan v. Walker, 533 U.S. 167, 186

(2001) (Breyer, J., dissenting), 57 percent of federal habeas

petitions are dismissed for failure to completely exhaust state

remedies. And on average, district courts take 268 days to

dismiss petitions on procedural grounds. Jd. That means that

a prisoner who files a petition well within the AEDPA limita-

tions period often will have his petition dismissed as mixed

only after the period has expired — when, on the state’s view,

it will be impossible for him to file a subsequent perfected

petition in federal court. Moreover, that outcome may have

nothing to do with a prisoner’s diligence and everything to

do with which district court hears his case. “If Prisoner A

and Prisoner B file mixed petitions in different district courts

six months before the . . . limitations period expires, and the

court takes three months to dismiss Prisoner A’s petition, but

seven months to dismiss Prisoner B’s petition, Prisoner A

will be able to return to federal court after exhausting state

remedies, but prisoner B — due to no fault of his own — may

not.” Jd.

2. It is not enough to say, as petitioner does, that a pris-

oner can avoid the problem simply by filing a fully exhausted

petition the first time around. Pet. Br. 18-19. Rose and Slack

protect the right of prisoners to federal review even after fil-

ing mixed petitions. And they do so because, as this Court

has recognized, the exhaustion rule, though straightforward

in the abstract, is very difficult to navigate in practice — espe-

cially for prisoners proceeding pro se.

-10-

Even the most diligent prisoner, for instance, may have

difficulty identifying precisely which state remedies must be

exhausted. See O'Sullivan v. Boerckel, 526 U.S. 838, 844

(1999) (applying exhaustion doctrine to requests for discre-

tionary review). He may draft inartfully, so that a constitu-

tional claim is not pressed with adequate specificity. Com-

pare Baldwin v. Reese, 124 S. Ct. 1347, 1348 (2004) (pris-

oner failed to meet the “fair presentation” standard), with id.

at 1352 (Stevens, J., dissenting) (state courts had “fair oppor-

tunity to assess respondent’s federal claim”). Or he may file

a state post-conviction petition that is procedurally deficient

in some way — and thus lose the benefit of AEDPA’s tolling

provision for “properly filed” state pleadings. See 28 U.S.C.

§ 2244(d)(2).

The problem created by the interplay between Rose’s “to-

tal exhaustion” procedures and the AEDPA limitations pe-

riod cannot be wished away by imagining a world in which

good-faith litigants never file mixed petitions. Petitioner’s

position necessarily entails that some significant number of

prisoners, acting with all due diligence, will file timely peti-

tions including exhausted claims that can never be reviewed

in federal court. The “total exhaustion” rule was never meant

to operate as that kind of a “trap” for the “unwary pro se peti-

tioner.” Slack, 529 U.S. at 487 (quoting Rose, 455 US. at

520).

Il. THE STAY PROCEDURES CHALLENGED BY

PETITIONER ARE WELL WITHIN A DISTRICT

COURT’S DISCRETIONARY AUTHORITY.

Fortunately, nothing in AEDPA or this Court’s cases re-

quires such a draconian result. As Justice Stevens explained

in his concurring opinion in Duncan: “{Ajlthough . the

Court’s pre-AEDPA decision in [Rose v. Lundy} prescribed

the dismissal of federal habeas corpus petitions containing

unexhausted claims, in our post-AEDPA world there is no

reason why a district court should not retain jurisdiction over

a meritorious claim and stay further proceedings pending the

ee pet a

-l1-

complete exhaustion of state remedies.” 533 U.S. at 182-83.

That solution has now been adopted by many of the federal

circuit courts, and has proven workable. See infra at 21-23.

And petitioner’s scattershot arguments notwithstanding, such

Stays are entirely consistent with AEDPA and this Court’s

decisions.

A. Unexhausted Claims May Be Deleted By The

Prisoner Or Dismissed By The Court.

Petitioner’s opening contention is its most extreme: that

faced with a mixed petition, a district court may not dismiss,

or allow a prisoner to withdraw, unexhausted claims. In-

stead, the court must dismiss the petition in its entirety. Pet.

Br. 17-19. The result, of course, would often be the same as

in this case: AEDPA’s limitations period would preclude a

post-exhaustion federal petition and hence federal-court re-

view of any of the prisoner’s claims, even those that had been

exhausted prior to an initial timely filing.

The State’s position is flatly foreclosed by Rose. In that

case, a majority of the Court expressly held that a prisoner

who files a mixed petition is faced with the “choice of return-

ing to state court to exhaust his claims or of amending or

resubmitting the habeas petition to present only exhausted

claims to the district court.” 455 U.S. at 510 (emphasis

added). The language relied on by petitioner — instructing

dismissal of the entire petition for “total exhaustion” — gov-

erns only if the prisoner does not elect to withdraw his unex-

hausted claims. Jd. at 509; see also id. at 514, 520 (majority

opinion); id. at 520 (plurality opinion). Indeed, in other liti-

gation, petitioner has conceded that Rose entitles a prisoner

to delete unexhausted claims from a mixed petition. See

Calderon v. U.S. Dist. Ct., 134 F.3d 981, 986 (9th Cir. 1998)

(“The State does not question the district court’s authority to

permit [the prisoner] to amend his original petition by delet-

ing the unexhausted claims. Nor could it.”).

In fact, the removal of unexhausted claims from a mixed

petition is often handled more expeditiously, by having the

x,

district court itself simply dismiss unexhausted claims with-

out prejudice. See, e.g., Zarvela v. Artuz, 254 F.3d 374, 380

(2d Cir. 2001). But whether a court employs that sensible

procedure or requires a prisoner to delete unexhausted

claims, the end result is the same. There is no merit to peti-

tioner’s contention that a mixed petition may not be “purged”

of unexhausted claims.

B. A Mixed Petition, Once Purged Of Unexhausted

Claims, May Be Stayed.

Petitioner’s fall-back argument is that even if unex-

hausted claims may be excised from a mixed petition,

whether by prisoner deletion or district-court dismissal, a

district court is without authority to stay the now-perfected

petition. Instead, petitioner insists, a court must immediately

adjudicate the merits of a purged petition — so that by the

time a prisoner has completely exhausted remaining claims,

there will no longer be any federal proceeding to which those

claims might “relate back” by amendment. Pet. Br. 19-20.

Petitioner is incorrect. As the State has acknowledged be-

fore, there is no support — “specific” or otherwise — for the

“assertion that district courts do not have authority to stay

fully exhausted petitions.” Calderon, 134 F.3d at 988

(“pressed at oral argument, the State [of California] was un-

able to muster any specific support” for its position).

1. District courts have inherent authority to issue stays in

proceedings before them. “(T]he power to stay proceedings

is incidental to the power inherent in every court to control

the disposition of the causes on its docket with economy of

time and effort for itself, for counsel, and for litigants.”

Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also

Arkadelphia Milling Co. v. St. Louis Southwestern Ry. Co.,

249 U.S. 134, 146 (1919) (power to stay proceedings is “in-

herent in every court” retaining jurisdiction over an action);

Clinton v. Jones, 520 U.S. 681, 683 (1997) (district court has

“broad discretion to stay proceedings as an incident to con-

trol of its own docket”).

-13-

There is nothing to suggest that courts do not enjoy the

same inherent authority in the habeas context. Indeed, six

Justices of this Court have already expressly or impliedly

acknowledged a district court’s power to stay federal pro-

ceedings pending complete exhaustion. See Duncan, 533

U.S. at 182 (Souter, J., concurring) (“nothing bars a district

court from retaining jurisdiction pending complete exhaus-

tion{]”); id. at 182-83 (Stevens, J., concurring) (“no reason”

why district court should not “stay further proceedings”

pending exhaustion); id. at 192 (Breyer & Ginsburg, JJ., dis-

senting) (referring to Justice Stevens’ “sound suggestion”

that courts stay mixed petitions pending exhaustion); Marti-

nez-Villareal, 523 U.S. at 650 (Scalia & Thomas, JJ., dissent-

ing) (noting that district court “did not hold” respondent’s

claim “in abeyance” when it denied his habeas petition). No

Justice of this Court has expressed a contrary view.

Nor does a stay of a perfected petition offend Rose or the

comity principles on which Rose is based. Rose holds that a

federal district court may not consider a habeas claim before

it has been fairly presented to the state courts. 455 U.S. at

515; of 28 U.S.C. § 2254(b)(1) (federal habeas petition may

not be “gran ” prior to exhaustion). It would be an affront

to comity and state sovereignty, the Court has explained, for

a “federal district court to upset a state court conviction with-

out [affording] an opportunity to the state courts to correct a

constitutional violation.” Darr v. Burford, 339 U.S. 200, 204

(1950). A stay of fully exhausted claims, on the other hand,

is entirely consistent with Rose and does nothing to intrude

on state prerogatives.

In fact, a stay of a mixed petition in its entirety is also

fully consistent with Rose’s prohibition on adjudication of

unexhausted claims. Whether or not a district court first

dismisses unexhausted claims from a mixed petition, a stay

of federal proceedings advances the principle that federal

courts “should defer action,” id., while state courts consider

the merits of a prisoner’s claims in the first instance. At least

-14-

two federal courts of appeals have so held, authorizing dis-

trict courts to stay mixed petitions in their entirety. See

Freeman v. Page, 208 F.3d 572, 576 (7th Cir. 2000) (Easter-

brook, J.); Crews v. Horn, 360 F.3d 146 (3d Cir. 2004); see

also Duncan, 533 U.S. at 182-83 (Stevens, J., concurring)

(suggesting that entire petition may be stayed). And that

procedure has the added advantage of judicial economy:

because all originally-filed claims are pending in abeyance,

there is no need for a prisoner to amend his petition to add

subsequently exhausted claims when he returns to federal

court. See Crews, 360 F.3d at 154 n.5. But the Court need

not decide in this case whether staying an entire mixed peti-

tion is permissible. It is enough here that a mixed petition

may be purged of unexhausted claims, and that, once it is, a

district court enjoys its customary authority to issue a stay.

2. Petitioner argues that a stay would “contravene{] this

Court’s admonition that federal courts have a ‘virtually un-

flagging obligation . . . to exercise the jurisdiction given

them.’” Pet. Br. 10, 23 (quoting Colorado River Water Con-

servation Dist. v. United States, 424 U.S. 800, 817-18

(1976)). But Colorado River and the principle it establishes

apply when a district court dismisses an action and thus re-

linquishes federal jurisdiction. 424 U.S. at 810; see Quack-

enbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996) (only

under exceptional circumstances may federal court “deny[] a

federal forum” by refusing to exercise jurisdiction). A stay,

on the other hand, does not relinquish a court’s jurisdiction;

rather, the district court retains jurisdiction over the action

while it is in abeyance. Accordingly, a stay does not violate

any obligation of the federal courts to exercise their jurisdic-

tion. “Unlike the outright dismissal or remand of a federal

suit .. . an order merely staying the action does not constitute

abnegation of judicial duty. On the contrary, it is a wise and

productive discharge of it. There is only postponement of

decision for its best fruition.” Quackenbush, 517 U.S. at 721

(internal quotations omitted).

-15-

| Petitioner’s argument from Colorado River is not only

incorrect but also inconsistent with her own position. It is

petitioner, after all, who urges that a district court faced with

a mixed petition must dismiss it outright and in its entirety —

despite the fact that exhaustion is not a jurisdictional re-

quirement, see supra at 6, so that this would constitute a re-

linquishment of the jurisdiction vested in the court. And it is

most unlikely that petitioner would argue that Rose itself is in

conflict with Colorado River, on the theory that it prevents

district courts from ruling on unexhausted claims over which

they have jurisdiction. Petitioner’s reading of Colorado

River is illogical as well as insupportable.

3. Petitioner also argues that a stay of a timely filed and

fully exhausted petition is somehow prohibited by AEDPA.

Pet. Br. 20-23. Nowhere in her brief, however, does peti-

tioner identify a provision of AEDPA that actually precludes

issuance of a stay. That is because there is none.

The two provisions of AEDPA at issue in this case are

the one-year statute of limitations, 28 U.S.C. § 2244(d)(1),

and the rule that a federal habeas provision “shall not be

granted unless it appears that,” inter alia, “the applicant has

exhausted the remedies available in the courts of the State,”

id. § 2254(b)(1). The stay procedure petitioner is challenging

is not at odds with either of those provisions. That procedure

may be invoked only when, as in this case, an initial federal

petition is filed within the one-year period. And the issuance

of a stay obviously does not constitute a pre-exhaustion

“grant[]” of a federal petition prohibited by § 2254(b)(1).

Nothing in AEDPA by terms overrides a district court’s in-

herent authority to issue a stay, and that should be the end of

the matter. See, e.g., Hughes Aircraft Co. v. Jacobson, 525

U.S. 432, 438 (1999) (where “statutory language provides a

clear answer,” inquiry is at an end).

| Faced with a complete absence of textual support, peti-

tioner falls back on a sort of hybrid policy-legislative history

argument: that issuance of a stay is in practical tension with

-16-

the goal of the one-year statute of limitations, which is to

“protect the federal system from being forced to hear stale

claims.” Pet. Br. 21 (quoting Carey v. Saffold, 536 U.S. 214,

216 (2002)). In other words, some extra-textual purpose of

the statute of limitations may be thwarted if a claim, timely

when filed, becomes stale before it is decided.

The actual provisions of AEDPA foreclose that position.

Nowhere does the statute suggest that the passage of time

between filing and decision may make a claim inappropriate

for federal adjudication. On the contrary, AEDPA specifi-

cally provides for unlimited tolling of the statute of limita-

tions while state post-conviction proceedings are pending, 28

U.S.C. § 2244(d)(2), making clear that Congress fully con-

templated a substantial lapse of time between filing and ad-

judication. And there is nothing in Carey — the only case

cited by petitioner — to suggest otherwise. Carey rejects the

State of California’s argument against tolling during certain

portions of state habeas proceedings, 536 U.S. at 219-20, and

provides no support for the idea that AEDPA’s concern with

“staleness” requires anything more than the filing of a timely

petition.

Petitioner’s argument also fundamentally misconceives

the relationship between a stay of proceedings and a statute

of limitations. On petitioner’s view, a stay of proceedings is

inappropriate if it would avoid what otherwise would be a

time bar. But on this Court’s view, the opposite is true: a

stay may be appropriate precisely because it would avoid

what otherwise would be a statute-of-limitations problem.

See, e.g., Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995)

(as between staying or dismissing an action in favor of paral-

lel state proceedings, “a stay will often be the prefer[red]

course, because it assures that the federal action can proceed

without risk of a time bar”); Deakins v. Monaghan, 484 U.S.

193, 203 n.7 (1988) (approving stay because, “unless [the

federal court] retained jurisdiction during the pendency of the

state proceeding, a plaintiff could be barred permanently

-17-

from asserting his claims in the federal forum by the running

of the applicable statute of limitations”).° Petitioner’s theory

— that a statute of limitations is by itself somehow at odds

with exercise of a district court’s inherent authority to stay an

action — cannot be reconciled with this established law.

C. Subsequently Exhausted Claims May Be Added

To A Stayed Petition By Way Of Amendment

Under Rule 15.

Finally, petitioner argues that a district court may not al-

low amendment of a stayed petition with later-exhausted

claims once the limitations period has expired. Pet. Br. 27-

36. The question of amendment generally does not arise in

circuits that allow for the stay of an entire mixed petition: if

the district court has stayed both exhausted and unexhausted

claims, there is no need for a prisoner to amend his original

filing in order to have subsequently-exhausted claims from

that petition considered when he returns to federal court. See

supra at 13-14. But if a district court must dismiss unex-

hausted claims and stay only the remainder of the petition,

then a stay without the possibility of amendment would be

pointless: absent amendment, there would be no reason for a

prisoner to seek a stay rather than pursue his exhausted

claims immediately. In fact, petitioner is incorrect, and dis-

* Federal circuit courts also have long held that when a timely-filed case

suffers from a non-jurisdictional procedural defect, the appropriate course

is to stay the action in order to avoid a time bar. See, e.g., Burris v. Far-

ley, 51 F.3d 655, 659 (7th Cir. 1995) (Easterbrook, J.) (plaintiffs asserting

employment discrimination claims and facing exhaustion requirements

tle nal ee ae ae a Ge & ny Oe cae of

ons asking istrict court to ings” -unti

additivnal claims can be exhausted and eA ah an ym la

Oubichon v. N. Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir. 1973)

(“In cases where the state agency has been bypassed, the district court

should retain jurisdiction for a period sufficient to allow the employee to

seek redress through the state agency.”).

-18-

trict courts may, in their discretion, permit amendment of

stayed petitions through Rule 15(c).’

1. Petitioner’s sole argument against use of Rule 15(c) to

permit post-exhaustion amendment is that Rule 15(c) does

not apply to habeas proceedings at all. Pet. Br. 30-36. The

text of the federal habeas statute says otherwise. Section

2242 - which petitioner fails even to mention — speaks di-

rectly to the issue, and it provides that an “[a]pplication for a

writ of habeas corpus . . . may be amended or supplemented

as provided in the rules of procedure applicable to civil ac-

tions.” 28 U.S.C. § 2242. The “rules[{] of procedure” that

governs amendments is Rule 15. Under the plain terms of

§ 2242, that rule applies in ordinary habeas cases."

This is not a controversial point. The courts of appeals

that have considered the issue unanimously agree that Rule

15(c) applies to habeas cases. See, e.g., Dean v. United

States, 278 F.3d 1218, 1222 (11th Cir. 2002); Fama v.

Comm 'r of Corr. Servs., 235 F.3d 804, 815-16 (2d Cir. 2000)

(Calabresi, J.); United States v. Pittman, 209 F.3d 314, 317

(4th Cir. 2000); United States v. Duffus, 174 F.3d 333, 337

(3d Cir. 1999); United States v. Craycraft, 167 F.3d 451,

” This normal operation of Rule 15(c) — under which the relation-back

rule permits amendment of a petition that is still pending by virtue of a

stay — is different from the use of Rule 15(c) when the initial petition has

been dismissed. The latter issue, which arises in the decision below in a

very limited context, is addressed infra at 28-29.

® Section 2242, see Pub. L. No. 80-773, 62 Stat. 869, 965 (1948),

predates enactment of AEDPA. But there is no provision in AEDPA that

repeals or modifies § 2242 in ordinary habeas cases. And when Congress

intended to modify application of Rule 15 in the habeas context, it did so

expressly: AEDPA does provide for a specially “strict standard” for

amendment in a limited class of capital cases qualifying for “expedited

review.” Petitioner cannot account for Congress’ considered decision to

restrict application of Rule 15 and the relation-back doctrine in one and

only one narrow category of cases. See Calderon v. Ashmus, 523 U.S.

740, 750 (1998) (Breyer, J., concurring) (Rule 15’s “liberal standard for

amendment” applies in habeas cases outside statutorily defined group of

capital cases eligible for expedited review).

-19-

456-57 (8th Cir. 1999). Petitioner does not cite a single case

supporting her contrary view.

2. With an argument contrary to plain text and absent

any case-law support, petitioner again argues that the very

existence of AEDPA’s statute of limitations precludes use of

the relation-back doctrine to permit amendments outside the

limitations period. Pet. Br. 30-36. That makes no sense.

The entire purpose of the relation-back rule is to allow for

amendments that would otherwise be barred by a statute of

limitations; that is precisely the situation to which Rule 15(c)

is addressed. Jd. at 30; see also 6A Charles Alan Wright et

al., Federal Practice and Procedure § 1497 (1990) (“{T]he

rationale of the relation back rule is to ameliorate the effect

of the statute of limitations . . . .”). If the existence of a stat-

ute of limitations is per se inconsistent with use of Rule 15(c)

to allow post-expiration amendment, then Rule 15(c) has no

practical application at all — in the habeas or any other con-

text.

Petitioner relies heavily on the unremarkable fact that

many of AEDPA’s sponsors believed that a one-year statute

of limitations would help to address the delays then prevalent

in habeas litigation, especially in capital cases. Pet. Br. 32-

35. That does nothing to distinguish AEDPA’s statute of

limitations from the limitations periods in most civil statutes

— and thus nothing to cabin the implications of petitioner’s

position for Rule 15(c). And to the extent Congress was

concerned generally with delay, it addressed those concerns

by requiring that federal habeas petitions be filed within a

year. Application of Rule 15(c), which permits “relation

back” only to a timely-filed petition, is entirely consistent

with that requirement.

Whether Rule 15(c) applies to habeas is a question

of statutory construction resolved by the plain terms of

§ 2242. Even if there were some tension between that provi-

sion and the statute of limitations, the more specific com-

mands of § 2242 would control. See, e.g., Morales v. Trans-

-20-

TransWorld Airlines, Inc., 504 U.S. 374, 384 (1992) (“the

specific governs the general” in statutory construction). Peti-

tioner’s position — which would bar even the most technical

and helpful of amendments, like those to more clearly state

the basis for a federal claim — was not adopted by Congress.

3. The only real question here, which petitioner alludes

to elsewhere in her brief, Pet. Br. 19, arises from the fact that

some of the claims raised in Ford’s second petitions were not

raised in his first. Slack makes clear that a federal court is

not categorically barred from considering claims raised in a

second petition that were not pressed in an initial mixed peti-

tion but were subsequently exhausted. 529 U.S. at 487-88. It

seems to follow that a district court may permit relation-back

of the same category of claims: those exhausted after dis-

missal of a mixed petition and then presented for the first

time to a federal court.” But there is no need to decide that

question here. The decision below applies the relation-back

doctrine only to those claims pressed in Ford’s first petitions.

Pet. App. 35. Claims newly raised in the seconc ~vetitions

were disposed of on different grounds and are not mn... before

the Court. Jd. at 36-39; see supra at 5 n.5.

IIL.THE STAY PROCEDURES CHALLENGED BY

PETITIONER ARE SENSIBLE AND WORKABLE.

As shown above, rigid application of Rose’s “total ex-

haustion” procedure, combined with AEDPA’s one-year

statute of limitations, threatens the well-established principle

that a prisoner who timely files a mixed petition may refile a

perfected one after exhausting state remedies. As also dem-

onstrated, there is no indication — textual or otherwise — that

Congress actually intended that result. See also Duncan, 533

U.S. at 183 (Stevens, J., concurring) (referring to “reasonable

belief that Congress could not have intended to bar federal

habeas review for petitioners who invoke the court’s jurisdic-

° The court’s exercise of discretion in considering such an amendment

would be guided by ordinary standards under Rule 1 S(c).

-21-

tion within the l-year interval prescribed by AEDPA”).

Faced with that problem, the lower courts have crafted a so-

lution, in the form of stay procedures, that protects the con-

tinued vitality of cases like Rose, Martinez-Villareal, and

Slack without overstepping district court authority. That so-

lution is sensible and workable, and far preferable to any of

the alternatives that would likely emerge in its absence.

1. Petitioner’s brief may create the impression that these

stay procedures are wholly a Ninth Circuit phenomenon.

That is not so. In fact, as described below, it is the Ninth

Circuit’s failure to fully adopt the stay procedures used else-

where that led to the precise contours of the decision below.

At least five other circuits, on the other hand, have adopted

the more standard stay procedures put at issue by petitioner.

The basic contours of the rule are the same from circuit to

circuit. A district court faced with a mixed petition has the

authority to hold the federal proceedings in abeyance, either

by staying the whole petition or by dismissing unexhausted

claims and staying the remainder. Where the court dismisses

unexhausted claims, it may permit the prisoner to reinstate

those claims, once they are exhausted, by way of amendment

under the “relation back” doctrine. The authority to stay, like

the authority to permit amendment, is discretionary. But if

AEDPA’s limitations period is likely to bar the filing of a

perfected petition after exhaustion, then denial of a stay gen-

erally will constitute an abuse of discretion. In other words,

a stay will be “preferable” in many cases and will be “the

only appropriate course . . . where an outright dismissal could

jeopardize the timeliness of a collateral attack.” Zarvela, 254

F.3d at 380 (internal quotation omitted); see also Freeman,

208 F.3d at 576 (Easterbrook, J.); Nowaczyk v. Warden, 299

F.3d 69, 79 (1st Cir. 2002); Palmer v. Carlton, 276 F.3d 777,

781 (6th Cir. 2002); Crews , 360 F.3d at 152.'°

'° The Eighth Circuit has rejected that authority and taken the contrary

view. See, e.g., Akins v. Kenney, 341 F.3d 681 (8th Cir. 2003).

2.

2. Petitioner worries that it may be difficult for judges to

determine whether the AEDPA limitations period will expire

before a prisoner can exhaust state remedies and return to

federal court. Pet. Br. 24. In the large number of cases like

this one, of course, the inquiry will be straightforward: if the

limitations period has run before the district court addresses

the exhaustion issue, then the judge can be certain that

AEDPA will present a time-bar problem for any future fed-

eral filings. And even in cases in which it is less obvious

whether AEDPA will threaten a prisoner’s ability to return to

federal court, the marginal imposition on district judges is

insubstantial. Under Rose, those judges already are charged

with determining whether each claim presented has been

fully exhausted, a complicated question that requires review

of the entire record of proceedings. Answering the statute of

limitations question should require little additional work.

3. Petitioner’s more sustained criticism is that stay pro-

cedures encourage undue delay and abusive litigation. Pet.

Br. 32-33, 35-36. But non-capital petitioners like Ford — the

vast majority of habeas petitioners — have no incentive what-

soever to engage in dilatory tactics. For non-capital prison-

ers, the point is to move as quickly as possible toward poten-

tial relief through federal-court adjudication of a fully ex-

hausted petition. See Rose, 455 U.S. at 520 (prisoner’s

“principal interest, of course, is in obtaining speedy federal

relief on his claims”’).

In any event, there are ample means of preventing vexa-

tious litigation of the sort the State hypothesizes. First,

AEDPA itself checks abusive litigation practices by permit-

ting district courts to dismiss even mixed petitions on the

merits if they raise insubstantial claims. 28 U.S.C.

§ 2254(b)(2); see Duncan, 533 U.S. at 182-83 (Stevens, J.,

concurring). Concerns that prisoners will prolong federal

stays by “running out the clock” with repeated state filings

are addressed by the states’ own procedural rules. See Slack,

529 U.S. at 489 (states “remain{] free to impose proper pro-

-23-

cedural bars to restrict repeated returns to state court for post-

conviction proceedings”’).

Perhaps most important, discretionary stay procedures

give district courts the flexibility they need to prevent vexa-

tious or repetitive litigation. Though granting a stay ordinar-

ily will be appropriate when a post-exhaustion filing other-

wise would be time-barred, district courts may deny a stay or

permission to amend when a prisoner has not exercised

reasonable diligence. See Zarvela, 254 F.3d at 380-81. They

may also, in their discretion, condition or limit their stays and

the amendments they will allow. If a prisoner may be con-

templating the filing of multiple mixed petitions, for in-

stance, then a district court can grant a stay but order that the

prisoner present only fully exhausted claims in his next fed-

eral pleading, on pain of dismissal with prejudice. See Slack,

529 U.S. 489. If the state would be unfairly prejudiced by

amendment under the relation-back doctrine, then the court

can deny leave to amend. See supra at 20 n.9. If a court is

worried that a prisoner will unduly delay pursuing state

remedies, then it can put time limits on its stay. In the Sec-

ond and Sixth Circuits, for example, a stay pending state ex-

haustion is ordinarily conditioned on the prisoner’s initiation

of exhaustion within 30 days, and a return to federal court

within 30 days after exhaustion is completed. Zarvala, 254

F.3d at 381; see Palmer, 276 F.3d at 781 (approving Second

Circuit approach). This list is not exhaustive. The point is

that stay procedures, rooted in the equitable power and sound

discretion of district courts, allow for a case-specific ap-

proach that precludes abusive tactics without foreclosing

federal review for diligent and good-faith litigants. ''

'' Petitioner suggests that a stay pending exhaustion would have the same

effect as tolling AEDPA’s statute of limitations during federal proceed-

ings, contravening Duncan. Pet. Br. 35-36. But the discretionary nature

of the stay procedures at issue distinguishes them importantly from auto-

matic operation of a tolling provision. In any event, of course, the major-

ity in Duncan did not comment at all on the stay procedure endorsed by

Justices Stevens and Souter. See 533 U.S. at 181 (reserving questions);

-24-

4. The stay procedures adopted by lower courts respond

to a real problem. If for some reason they were unavailable,

then other responses would take their place. And the most

likely alternatives would raise serious concerns that the stay

procedures do not.

The alternative that petitioner appears to endorse, for in-

stance, would require that at the same time a prisoner files a

federal petition, he also file a “protective” petition in state

court in order to trigger AEDPA’s state-court tolling provi-

sion. Pet. Br. 18 n.5 (citing Akins v. Kenney, 341 F.3d 681

(8th Cir. 2003)). The idea, it seems, is that if petitioner can

run out his “protective” state proceedings — and the concomi-

tant tolling — long enough, there will still be time to refile in

federal court after a dismissal of a mixed petition. /d. It is

hard to square that suggestion with petitioner’s concerns

about comity. By encouraging prisoners to waste the time of

state courts in order to take advantage of a tolling provision,

and requiring state courts to adjudicate claims that may well

be exhausted already, petitioner’s proposal undermines com-

ity principles.

Less troubling on comity grounds, but still wildly ineffi-

cient, is an alternative that would shift the burden to the dis-

trict courts. If those courts cannot stay exhausted claims in

mixed petitions, then represented prisoners may be advised to

“take precautionary measures to guard against . . . being

penalized [if] the district court judge takes a long time to rule

upon the exhaustion status of the petition.” 1 Randy Hertz &

James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 5.2b (4th ed. 2001). Specifically, prisoners

could ask district courts for immediate emergency rulings on

exhaustion, and seek equitable tolling if such rulings are not

forthcoming. /d. Even assuming that district courts could

and would act quickly on such requests, the procedure, as its

id. at 182 (Stevens, J., concurring) (conclusions “unaffected by [majority]

decision construing a single provision of [AEDPA]”).

-25-

proponents acknowledge, would be “cumbersome and time-

consuming,” at the expense of the federal courts. /d.

Another route is the one actually taken by the Ninth Cir-

cuit which, as noted above, has adopted stay procedures

slightly different from those used in other circuits. In the

Ninth Circuit, a district court is permitted neither to stay an

entire mixed petition nor to dismiss unexhausted claims on

its own. Instead, unexhausted claims may be purged, and

remaining claims stayed, only if the prisoner himself requests

withdrawal of the unexhausted claims. See Calderon, 134

F.3d at 986; Pet. App. 22. The end result will in many cases

be the same (though with the unnecessary expenditure of

substantial resources by both prisoner and court). But be-

cause the prisoner must initiate the process, the question of

advisements arises: how much must the district court or

magistrate judge tell the prisoner about his withdrawal op-

tion? Pet. App. 24-25. That issue — the narrow one ad-

dressed below - is avoided altogether by the more common

stay procedure, in which the district court simply presents the

standard Rose options and then may itself stay the action if

the prisoner chooses to pursue complete exhaustion.

IV.THIS COURT SHOULD AFFIRM THE DECISION

BELOW.

1. For the reasons given above, this Court should reject

petitioner’s broad-based attack on the stay procedures

adopted by the lower courts, and hold that a district court

faced with a mixed petition and a looming or expired

AEDPA deadline ordinarily should stay the federal proceed-

ings and then, if necessary, permit amendment under the rela-

tion-back doctrine after exhaustion of state remedies. Under

that rule, the decision below should be affirmed.

As noted above, the Ninth Circuit employs slightly dif-

ferent stay procedures than other circuits. But the court be-

low has adopted the basic position that a district court may

stay federal proceedings — by allowing a prisoner to delete

unexhausted claims, and then holding the remainder of the

-26-

petition in abeyance - and may allow post-exhaustion

amendment under Rule 15(c). See Calderon, 134 F.3d at

989; Pet. App. 23-24. The decision below amounts to a hold-

ing that the district court in this case erred by failing to grant

Ford’s stay motions, given that Ford otherwise would be

time-barred when he attempted to return to federal court after

fully exhausting state remedies. Pet. App. 25 (“granting a

stay is ‘the only appropriate [remedy] where an outright dis-

missal could jeopardize the timeliness of a collateral attack’”’)

(quoting Zarvela, 254 F.3d at 380).

If, as amicus urges, the Court endorses the stay proceed-

ings challenged by petitioner, then that holding is surely cor-

rect. Nothing about Ford’s case would have taken it out of

the ordinary rule that a stay should be granted when the one-

year limitations period would otherwise prevent post-

exhaustion review. On the contrary, Ford acted with due

diligence throughout his habeas proceedings. He filed timely

habeas petitions that included exhausted as well as unex-

hausted claims. In reliance on the magistrate judge’s assur-

ances that dismissal would be “without prejudice,” he

promptly initiated further state post-conviction proceedings,

and then promptly returned to federal court when exhaustion

was completed. Even under a 30-day conditioned stay like

the Second Circuit’s, see supra at 23, Ford — who filed in

state court within three weeks of the federal dismissal, and in

federal court again one week after exhaustion — would be

entitled to have his petitions reviewed.

The court below correctly held that the district court erred

when it failed to hold Ford’s exhausted claims in abeyance

pending exhaustion, and then permit amendment of the

stayed petition to include the now-exhausted claims. Pet.

App. 23-26. The Court should affirm on those grounds.

2. Even if the Court rejects the stay procedures at issue,

it should affirm the decision below. Under Rose, it should be

clear beyond dispute that respondent was entitled to delete

his unexhausted claims from his mixed petition and to pro-

At st eS ee

A Rl

—

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ceed with his exhausted claims. Supra Part I1.A. But as the

court below correctly held, even that limited right is mean-

ingful in a post-AEDPA world only if a pro se prisoner is

advised that his other “choice” — dismissal of the entire peti-

tion for complete exhaustion — may preclude federal review

of any of his claims. Pet. App. 27-30.

The magistrate judge purported to give Ford a choice: ei-

ther withdraw his unexhausted claims and proceed only on

the exhausted ones, or the court would dismiss his petitions

in their entirety and “without prejudice” so that he could fully

exhaust. But at the time the magistrate judge so instructed,

there was really no choice at all. The AEDPA limitations

period had expired, so that (absent equitable tolling) federal

review of all of Ford’s claims — including those already ex-

hausted — would be forever precluded if his petitions were

dismissed. As the Ninth Circuit concluded, the magistrate

judge’s offer of a dismissal “without prejudice” misled Ford

into believing that dismissal for complete exhaustion was a

viable alternative to proceeding with his unexhausted claims

only. Pet. App. 27-28.'?

This Court should affirm the Court of Appeals’ holding

that a magistrate or district judge must advise a prisoner of a

potential AEDPA time-bar in order to make the prisoner’s

choice a meaningful one. /d. at 29-30. That holding is con-

? That error was compounded when the magistrate judge made dismissal

of the entire petition appear to be the preferred course of action. First, the

magistrate judge cast the alternative — deleting unexhausted claims — in a

decidedly negative light, stating that he would “not later rule” on unex-

hausted claims, and going so far as to require that Ford formally waive

any rights to assert those claims. J.A. 52. Then, in response to Ford’s

express concerns about the AEDPA time bar, the magistrate judge sug-

gested that the statute of limitations on at least some of Ford’s claims had

not run. J.A. 53 (limitation period “begins to run only when the factual

predicate of the claims could have been discovered through the exercise

of due diligence”). Finally, by presenting the choice so that complete

dismissal was the default to which Ford had to object, Pet. App. 17, 20,

the magistrate judge likely conveyed that dismissal was the norm.

-28-

sistent with this Court’s own decisions, which recognize that

certain straightforward advisements will sometimes be neces-

sary in habeas cases so that pro se prisoners can make in-

formed judgments and do not inadvertently forfeit their

rights. See Castro v. United States, 124 S. Ct. 786, 791-92

(2003) (district court may not recharacterize pro se litigant’s

motion as habeas petition without first informing litigant of

its intent, warning that subsequent petitions will be subjected

to “second or successive” restrictions, and providing litigant

with opportunity to withdraw or amend filing). It imposes no

substantial burden on district courts; Rose already requires a

colloquy with prisoners and, as noted above, identifying

time-bars will add little incremental burden. Supra at 22.

And without such an advisement, prisoners like Ford will

regularly and through no fault of their own be completely

deprived of federal court review of timely-filed and ex-

hausted constitutional claims. See Lonchar v. Thomas, 517

U.S. 314, 324 (1996) (“Dismissal of a first habeas petition is

a particularly serious matter, for that dismissal denies the

petitioner the protection of the Great Writ entirely, risking

injury to an important interest in human liberty.”’).

The Court also should affirm the Court of Appeals’ hold-

ing that Ford was entitled to relief for the improper dismissal

of his first petitions without the necessary advisements. Pet.

App. 31-33. Properly understood, the court’s decision re-

garding Rule 15(c) was an extremely narrow one, tailored to

the particular remedial problem raised by this case: Because

the magistrate judge dismissed Ford’s first petitions “without

prejudice” and led Ford to believe he could return to federal

court upon exhaustion, Ford had no reason to appeal those

dismissals. Other courts of appeals facing the same circum-

stances — a first petition improperly dismissed, a justifiable

failure to appeal, then a second time-barred petition — have

invoked their inherent power to provide equitable relief.

Some have simply treated the district court’s dismissal of the

initial petition as though it never happened, so that the peti-

tion is still “pending” for relation-back purposes, see Zarvela,

ek eens a

-29-

254 F.3d at 377, 383; others have applied the equitable doc-

trine of nunc pro tunc, under which the perfected petition is

treated as though it were filed on the date of the initial peti-

tion, Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000).

The use of Rule 15(c) below is to precisely the same effect,

and equally consistent with the courts’ inherent authority to

grant equitable reiief.

Contrary to petitioner’s suggestion, Pet. Br. 37-38, the

Court of Appeals’ Rule 15(c) decision does not have broad

application. We are aware of no case in the Ninth Circuit

applying that holding beyond its facts: where there has been

an improper and prejudicial dismissal of a first habeas peti-

tion, and the prisoner had no way of knowing that an appeal

was in order. Indeed, petitioner has cited no other case at all

employing the remedial device used below. And if this Court

now instructs district courts faced with mixed petitions to

stay rather than dismiss when a return to federal court would

otherwise be time-barred, then there should be no further

need for this or any other remedy.

3. At a minimum, this Court must remand for considera-

tion of equitable tolling. The Court of Appeals noted that

“{a]lthough we need not reach the question here, Ford would

also be entitled to relief under equitable tolling principles.”

Pet. App. 35 n.15. As set forth in the amicus curiae brief of

the Federal Defenders in the Ninth Circuit, AEDPA is plainly

subject to equitable tolling, and Ford presents a textbook case

for application of the rule. See Br. of Fed. Defenders in the

Ninth Cir., Amici Curiae, in Supp. of Respondent; supra at

23, n.11. If the Court does not affirm the decision below,

then it should remand to give the Ninth Circuit an opportu-

nity to rule on the issue."

‘> Though petitioner makes a passing argument against equitable tolling,

Pet. Br. 26, that issue is not properly before the Court. Presumably be-

cause the lower court did not rule on the question, petitioner did plot in-

clude equitable tolling in the questions presented in its certiorari pétition,

see Cert. Pet. i, and did not even mention the issue in the petition itself.

-30-

CONCLUSION

The judgment should be affirmed.

Respectfully submitted,

DAVID M. PORTER WALTER DELLINGER

NAT’L ASS’N OF CRIMINAL PAMELA HARRIS

DEFENSE LAWYERS (Counsel of Record)

Co-Chair, Amicus Committee MATTHEW M. SHORS

801 I Street, 3rd Floor JOSHUA A. KLEIN*

Sacramento, CA 95814 ADAM J. COATES**

(916) 498-5700 O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

* Admitted only in California

** 4 dmitted only in Pennsylvania

Attorneys for Amicus Curiae

Dated: March 29, 2004

Petitioner has waived any mght to argue against equitable tolling in this

Court.