United States District Court, E.D. Missouri, Eastern Division
CHRISTOPHER A. HARRIS, JR., Petitioner,
BILL HARRIS, Respondent.
MEMORANDUM AND ORDER
G. FLEISSIG, UNITED STATES DISTRICT JUDGE
matter is before the Court on the petition of Missouri state
prisoner Christopher A. Harris, Jr., for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the reasons set
forth below, habeas relief will be stayed to permit
Petitioner to exhaust state remedies.
petition, filed on July 24, 2014, Petitioner challenges the
June 18, 2014 revocation of his probation and execution of a
sentence of seven years' imprisonment on drug possession
and identity theft charges. Petitioner raises four claims
challenging this probation revocation, which, he states, was
based on a doctor's note that the state court believed
was forged by Petitioner. Petitioner claims that his due
process rights were violated because (1) the state court
offered no alternative to probation revocation, even though
Petitioner was not a threat to society, (2) the state court
did not give him a chance to prove “the validity”
of the doctor's note, and rejected Petitioner's
evidence “of a negative hair follicle test submitted,
” (3) the probation violation report did not
include a recommendation that probation be revoked, and (4)
there was no written statement from the doctor's office
stating that Petitioner had written the note.
each ground for relief, Petitioner states that he did not
appeal the revocation decision or file a motion for state
post-conviction relief because he could not afford to do so.
Respondent argues that the current action must thus be
dismissed because Petitioner failed to exhaust his state
court remedies. Respondent notes that Petitioner could file
an application to proceed in forma pauperis in state court,
pursuant to Mo. Rev. Stat. § 514.040. Respondent neither
addresses the merits of Petitioner's claims, nor submits
state court records other than the state court docket sheets.
matter of comity, state courts should have the first
opportunity to review federal constitutional issues raised in
a federal habeas action and to correct any constitutional
errors made by the state's trial courts. Baldwin v.
Reese, 541 U.S. 27, 29 (2004); O'Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999). A federal habeas
petitioner is thus required to exhaust all available avenues
of relief in the state courts before the federal courts will
consider a claim. 28 U.S.C. § 2254(b), (c). To satisfy
the exhaustion requirement, “state prisoners must give
the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”
O'Sullivan, 526 U.S. at 845. Compliance with the
exhaustion requirement is excused only if “there is an
absence of available State corrective process” or
“circumstances exist that render such process
ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(B).
state prisoners can challenge a probation revocation in a
state habeas corpus action (under Missouri Supreme Court Rule
91). State ex rel. Nixon v. Jaynes, 73 S.W.3d 623,
624 (Mo. 2002). There is no time limit for filing such an
action. Jones v. Sachse, No. 4:11CV01310 SNLJ, 2014
WL 4410394, at *14 (E.D. Mo. Sept. 8, 2014) (citing
Fletcher v. Armontrout, 725 F.Supp. 1075, 1086
(Mo.Ct.App. 1989)). Thus, this remedy is available to
Petitioner and must be exhausted prior to seeking federal
habeas relief. See id. (dismissing federal habeas
petition without prejudice for failure to fully exhaust a
Rule 91 remedy); Garrett v. Burgess, No. 4:10CV654
FRB, 2010 WL 4941435, at *2 (E.D. Mo. Nov. 30, 2010) (same).
however, a dismissal even without prejudice will foreclose
federal habeas review of Petitioner's claims because the
one-year statute of limitations for bringing such an action,
pursuant to the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2254(d), has elapsed.
The statute of limitations for Petitioner's federal
petition began to run on June 18, 2014, the day the trial
court revoked his probation, see Davis v. Purkett,
296 F.Supp.2d 1027, 1029-30 (E.D. Mo. 2003), and was not
tolled during the pendency of the present federal action,
see Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Court has the discretion to stay rather than dismiss a
petitioner's habeas claim pending exhaustion of available
state remedies. See Rhines v. Weber, 544 U.S. 269,
276 (2005). The Court is mindful that a federal stay should
be entered “only in limited circumstances, ” and
“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, ” “[the
petitioner's] unexhausted claims are potentially
meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
Id. at 277-278 (remanding case for a determination
of whether a stay was appropriate.)
have held that “good cause” in this context is
more expansive than the “cause” needed to excuse
a procedural default. See Rankin v. Norris, No.
5:06CV00228JMM, 2009 WL 1973475, at *3 (E.D. Ark. July 8,
2009). After Rhines itself was remanded, the
district court suggested that a petitioner's reasonable
confusion about timeliness could be sufficient to satisfy the
standard. Rhines v. Weber, 408 F.Supp.2d 844, 849
(D.S.D. 2005). Furthermore, a Court may consider whether the
petitioner's federal habeas claims will be time-barred
because the statute of limitations set forth in AEDPA expired
while the habeas case was pending in federal court. See
Akins v. Kenney, 410 F.3d 451, 455 (8th Cir. 2005);
Walker v. Houston, No. 4:07CV3208, 2007 WL 2903005,
at *1 (D. Neb. Oct. 4, 2007).
the circumstances of this case, where Petitioner filed his
federal habeas action about five weeks after the limitations
period began, but the Court did not rule on the petition
until after the statute of limitations ran, the Court will
exercise its discretion to stay the current action, rather
than dismiss it for failure to exhaust state remedies.
Cf. Walker, 2007 WL 2903005, at *2 (D. Neb. Oct. 4,
2007) (explaining that dismissing, rather than staying a
federal habeas action, for failure to exhaust, was
appropriate because the one-year statute of limitations for
the action had not yet run in its entirety). The Court cannot
say on the record before it that Petitioner's claims are
plainly meritless, and there is no indication of intentional
dilatory practices by Petitioner.
Supreme Court directed in Rhines, that where a stay
is appropriate, “the district court's discretion in
structuring the stay is limited by the timeliness concerns
reflected in AEDPA.” Rhines 544 U.S. at 277.
The Court cited with approval to a case suggesting that
district courts “should explicitly condition the stay
on the prisoner's pursuing state court remedies within a
brief interval, normally 30 days, after the stay is entered
and returning to federal ...