United States District Court, E.D. Missouri, Eastern Division
DALE D. BOOKWALTER, Petitioner,
TROY STEELE, Respondent.
MEMORANDUM AND ORDER
SHIRLEY PADMORE MENSAH UNITED STATES MAGISTRATE JUDGE.
commenced this case by filing a petition for writ of habeas
corpus under 28 U.S.C. Sec. 2254. (Doc. 1). The matter is
currently before the court on Respondent's motion to stay
the petition and hold it in abeyance so that petitioner may
exhaust his state court remedies. (Doc. 29). The parties have
consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. Sec. 636(c).
jury trial in 2009, Petitioner was convicted of statutory
sodomy in the first degree. See State v. Bookwalter,
No. 08DU-CR01415-02 (Dunklin County). The trial court
sentenced him to fifteen years in prison, and his direct
appeal was denied. State v. Bookwalter, 326 S.W.3d
530 (Mo.Ct.App. 2010). On March 2, 2011, Petitioner filed a
timely Rule 29.15 motion for postconviction relief, which
remains pending in state court. Bookwalter v. State,
No. 11SD-CC00033 (35th Judicial Circuit). There is no
apparent reason why the motion has been unresolved for over
seven years except for unreasonable delay by the state court.
Due to this inordinate delay in his state postconviction
proceedings, the Court determined that his state remedies
were futile, and it allowed Petitioner to pursue his federal
habeas petition even though his state remedies were not
exhausted. (Doc. 7).
after this Court allowed Bookwalter to forego the exhaustion
requirement, Missouri Assistant Attorney General Olivea A.
Myers wrote a letter to the Honorable John Spielman, the
judge assigned to Petitioner's Rule 29.15 motion. (Doc.
29-3). In that letter, she notified Judge Spielman that this
Court had decided to review Petitioner's habeas petition
on the merits, and asked him to set a status conference
“as soon as possible . . . to ensure that Bookwalter
gets to fairly present his claims in state court.”
Id. After being informed of this Court's
actions, Judge Spielman scheduled a hearing in
Bookwalter's case for May 14, 2018. (Doc. 29-2). However,
on May 9, 2018, Judge Spielman issued an order directing that
depositions be taken of Bookwalter and another witness. (Doc.
36-3). This action effectively cancelled the hearing, and no
further hearing has been scheduled. Id.
rather than responding to the allegations in Petitioner's
habeas petition, Respondent filed the instant motion to stay
the proceedings and hold the petition in abeyance for a
period of ninety days pursuant to Rhines v. Weber,
544 U.S. 269 (2005), so that Petitioner can exhaust his
claims in state court. Respondent argues that
Bookwalter's state remedies are no longer futile because
the state court has taken action on his Rule 29.15 motion,
and that the principle of comity should persuade this Court
to stay Petitioner's habeas claim and hold it in abeyance
while Bookwalter litigates his claims fully in state court.
responded in opposition to the motion to stay and abey,
arguing that because the motion court has indefinitely
postponed the hearing originally set for May 14, 2018, the
resolution of his postconviction case is no more imminent
than it was before, and his state remedies remain futile.
Rhines, the Supreme Court considered whether a
federal court has discretion to stay and hold in abeyance a
federal habeas petition in order to allow the petitioner to
present his unexhausted claims to the state court and then
return to federal court for review of his perfected petition.
Id. at 277. The court determined that a district
court has such discretion. Id. at 275. Stay and
abeyance is available only if there was good cause for a
petitioner's failure to exhaust his claims in state court
first, the unexhausted claims are not plainly meritless, and
the petitioner does not appear to be engaged in abusive
litigation tactics. Id. at 277.
deciding whether a stay is appropriate, the threshold
question-whether one or more of a petitioner's claims are
unexhausted-is not at issue in this case. Due to the more
than seven-year delay exercised by the state postconviction
court where Petitioner's Rule 29.15 motion remains
pending, his efforts to exhaust his state remedies have so
far proven elusive. The Court must next consider whether
there is good cause for Petitioner's failure to exhaust,
whether there is any indication of dilatory tactics on his
part, and whether his habeas claims have merit. It is unclear
what more Petitioner could have done to exhaust his state
remedies. He appears to be blameless for the ongoing delay,
and there is good cause shown for the failure to exhaust.
There is likewise no indication that Petitioner has engaged
in intentionally dilatory tactics. Finally, while the Court
is not ruling on the merits of Petitioner's claims at
this time, his claims are clearly not frivolous, and the
Court is unable to conclude at this early stage of the
proceedings that Petitioner's claims have no potential
merit. It thus appears that Petitioner's habeas petition
meets the prerequisites outlined in Rhines, and it
would be properly within the Court's discretion to allow
the petition to be stayed and held in abeyance.
Court will now consider the unusual posture of the instant
motion. As a rule, it is habeas petitioners who seek to stay
and abey their cases, not state respondents. Generally, a
habeas petitioner seeks a stay as the preferred alternative
to dismissal for lack of exhaustion, because a stay allows
him to avoid running afoul of the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act of 1996. 28 U.S.C. § 2244(d). In this case,
however, it is Respondent who seeks the stay, arguing that
the interests of comity and federalism militate in favor of
allowing the state to first consider the merits of
Petitioner's claims before the federal court interferes.
In this case, the Court has previously excused
Petitioner's lack of exhaustion and was prepared to
review his petition on the merits when it was fully briefed.
Petitioner has already endured inordinate delay in his state
proceedings, and the Court is sympathetic to his preference
that this Court simply move forward with its consideration of
exhaustion requirement is not jurisdictional, but is
“grounded in principles of comity” as it gives
the state “the first opportunity to address and correct
alleged violations of state prisoner's federal
rights.” Coleman v. Thompson, 501 U.S. 722,
731 (1991); see also Rhines, 544 U.S. at 273
(“[T]he interests of comity and federalism dictate that
state courts must have the first opportunity to decide a
petitioner's claims.”). Respondent argues, citing
to Rhines, that this Court should allow the state
court to proceed with its review of Bookwalter's Rule
29.15 motion, because “it would be unseemly in our dual
system of government for a federal district court to upset a
state court conviction without an opportunity to the state
courts to correct a constitutional violation[.]”
Rhines, 544 U.S. at 274 (quoting Darr v.
Burford, 339 U.S. 200, 204 (1950). Because the state
court recently set a hearing on Petitioner's motion,
Respondent argues that it is now appropriate for this Court
to stay his federal case and give the state court further
opportunity to consider Bookwalter's claims, thus
preserving Missouri's interest in comity.
Court is cognizant of the fact that “comity is fostered
where district courts refrain from adjudicating mixed
petitions, ” Rose v. Lundy, 455 U.S. 509, 510
(1982), and that such judicial restraint “protect[s]
the state courts' role in the enforcement of federal law
and prevent[s] disruption of state judicial
proceedings.” Braden v. 30th Jud. Cir. Ct. of
Ky., 410 U.S. 484, 490-91 (1973). Because the state
court has taken recent action on Petitioner's Rule 29.15
motion, this Court will for now defer to the principles of
comity and federalism and grant Respondent's motion to
stay and abey Bookwalter's federal habeas petition.
as Petitioner points out in his response in opposition to the
motion, the state court promptly cancelled the hearing that
was set for May 14, 2018, and a review of the docket sheet
shows that a new evidentiary hearing date has not yet been
set. This lack of further movement on the part of the state
court does not give this Court great confidence that the
resolution of Petitioner's state postconviction case is
readily forthcoming. Petitioner has been waiting on the state
court's decision for over seven years, and he should not
be required to ...