A Mixed Bag for Habeas Petitioners (2)

While the Johnson decision deals with the habeas statute for federal prisoners, last week’s ruling in Rhines v. Weber (03-9046) addressed the consequences of AEDPA’s statute of limitations on state prisoners seeking federal habeas corpus review. Rhines concerned a “mixed petition” for habeas corpus—one that contains both claims that the state courts have reviewed (called “exhausted claims”) and claims presented for the first time in federal court (“unexhausted claims”).

The specific issue in Rhines was whether a district court faced with a “mixed petition” could grant the habeas petitioner a “stay” and hold the petition in “abeyance” until the petitioner first sought review of his “unexhausted” claims in state court. Under the Supreme Court’s decision in Rose v. Lundy, 455 U.S. 559 (1982), state prisoners are required to demonstrate “total exhaustion” of their claims before they get their day in federal court. The sticking point—and the reason the case is important—is that AEDPA’s one-year limitations period will forever close the doors of the federal courts to many prisoners forced to return to state court to present their unexhausted claims. Simply put, by the time they get back to federal court, the one-year time limit will have expired.

In Rhines’ case, the Eighth Circuit applied its rule that AEDPA barred district courts from adopting the “stay and abeyance” procedure and vacated a district court order staying Rhines’ habeas petition. In an opinion by Justice O’Connor, the Supreme Court vacated and remanded. Rejecting the Eighth Circuit’s rule, the Court held that the “stay and abeyance” procedure was available to district courts, but only in the limited situations where the petitioner can demonstrate both “good cause” for failing to present his claims to the state court and that those claims are not “plainly meritless.” O’Connor said that routine application of the procedure might undermine the “twin purposes” of AEDPA—“encouraging finality” and “streamlining federal habeas proceedings”—and the procedure should be used with those purposes in mind. But she recognized that a complete bar would place many habeas petitioners in the precarious predicament caused by the “interplay” between the “total exhaustion” requirement and AEDPA’s one-year statute of limitations

In a one-paragraph concurrence, Justice Stevens emphasized that the Court’s “good cause” requirement should not be read as an inflexible “trap” for the “unwary pro se petitioner.” Concurring in part and in the judgment, Justice Souter argued that district courts should refuse to use the stay and abeyance procedure only where the prisoner engages in “intentionally dilatory litigation tactics.” Ginsburg and Breyer joined both of the concurring opinions.

Both the Rhines and Johnson decisions will likely require, as Justice Kennedy predicted in his Johnson dissent, “further litigation before [their] operation is understood.” The Court articulated familiar-sounding standards—“due diligence” in Johnson and “good cause” in Rhines; nevertheless, the application of these standards to the post-AEDPA habeas context is far from clear. Whatever their long-term reach, both decisions will likely have at least one immediate effect: complicating the lives of many of the nation’s federal district court judges.