United States District Court, D. Oregon
Brown Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General Samuel A. Kubernick, Assistant
Attorney General Department of Justice Attorneys for
Respondent MOSMAN, District Judge.
OPINION AND ORDER
MICHAEL W. MOSMAN UNITED STATES DISTRICT JUDGE.
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
from 2005. Because Petitioner did not file the action within
the applicable one-year statute of limitations, the Petition
for Writ of Habeas Corpus (#2) is dismissed.
September 23, 2005, a jury convicted Petitioner in Marion
County of four counts of Sexual Abuse in the First Degree,
prompting the trial court to sentence him to 150 months in
prison. Petitioner pursued a direct appeal that was
ultimately unsuccessful, and his Appellate Judgment issued
with an effective date of April 15, 2010. To comply with the
one-year statute of limitations applicable to habeas corpus
cases, Petitioner had until July 11, 2011 in which to file
for federal habeas corpus relief.
believed he was the victim of ineffective assistance of
counsel at his trial. However, instead of presenting his
claims ineffective assistance of counsel in a post-conviction
relief (``PCR") action in state court,  he proceeded
directly to federal court where he filed his Petition for
Writ of Habeas Corpus in Hill v. Coursey, No.
1:ll-cv-00426-PA, assigned to the Honorable Owen M. Panner.
Petitioner signed his Petition on March 16, 2011 such that he
complied with the AEDPA's one-year statute of limitations
with 117 days to spare.
Second Amended Petition for Writ of Habeas Corpus in
l:ll-cv-00426-PA, Petitioner raised four grounds for relief,
two of which were claims of trial court error that were
procedurally defaulted and ineligible for federal habeas
corpus review. In his two remaining grounds for relief,
he raised claims of ineffective assistance of counsel that,
by virtue of his bypassing the state PCR remedy, he had not
fairly presented to Oregon's state courts. The
ineffective assistance of counsel claims were not
procedurally defaulted, however, because Petitioner still had
time to file a PCR petition in state court.
Panner noted that the issue of potentially staying the action
was not something the Court needed to raise sue
sponte and, even if it was, neither Rhines v.
Weber, 544 U.S. 269, 275 (2005) nor Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2003) could be
properly applied. Judge Panner appeared to be primarily
concerned that Petitioner, appearing to have no viable claims
to present for federal habeas review at that time, might
become time-barred from raising his claims of ineffective
assistance of counsel in a state PCR proceeding because the
two-year statute of limitations applicable to such cases was
due to expire in less than 60 days. He therefore dismissed
the habeas case without prejudice and without further leave
to amend, and advised Petitioner that his best avenue for
relief was a state PCR action. He reasoned that it was best
to dismiss the action without prejudice and without further
leave to amend because:
. by giving petitioner the option of proceeding, it could be
seen as suggesting to a pro se litigant that federal
habeas corpus is a legitimate option for his direct appeal
claims only for petitioner to later find out not only that it
was not, but that by pursuing the habeas remedy he lost his
only opportunity to ever receive a merits adjudication of his
ineffective assistance of counsel claims in any court.
Order (#29), p. 6.
Judge Panner's February 21, 2012 dismissal, Petitioner
timely filed a PCR action on April 6, 2012 wherein he
litigated his claims against his trial attorney. The PCR
court denied relief on Petitioner's claims, the Oregon
Court of Appeals dismissed a subsequent appeal, and the
Oregon Supreme Court denied review.
conclusion of his state PCR action, and more than four years
after Judge Panner dismissed his federal case, on July 5,
2016, Petitioner filed what amounted to a Third Amended
Petition in the terminated case and a Motion seeking to
reopen the case. Judge Panner appointed the Federal Public
Defender to represent Petitioner, and counsel filed her own
Motion for Reconsideration seeking to restart the earlier
Judge Panner's retirement, the Clerk transferred
l:ll-cv-00426-PA to me. On June 7, 2017, I concluded that the
Motion for Reconsideration seeking to invalidate Judge
Panner's Judgment was untimely. I further concluded that
even if Petitioner had timely filed his Motion for
Reconsideration, a stay would not have been proper in the
case because: (1) there was no ``good cause" to justify
a Rhines stay; and (2) there was no authority
requiring a Kelly stay in a case that involved only