United States District Court, N.D. Florida, Pensacola Division
REPORT AND RECOMMENDATION
ELIZABETH M. TIMOTHY, CHIEF UNITED STATES MAGISTRATE JUDGE
cause is before the court on a petition for writ of habeas
corpus filed by Petitioner under 28 U.S.C. § 2254 (ECF
No. 1). Respondent filed a motion to dismiss the petition for
failure to exhaust state court remedies (ECF No. 14).
Alternatively, Respondent asserts the court may stay this
proceeding and hold it in abeyance if the court determines
that Petitioner's petition contains both exhausted and
unexhausted claims (see id.). Petitioner filed a
response requesting that the court stay this habeas
proceeding and hold his § 2254 petition in abeyance,
pursuant to Rhines v. Weber, 544 U.S. 269, 278125
S.Ct. 1528, 161 L.Ed.2d 440 (2005) (ECF No. 16).
case was referred to the undersigned for the issuance of all
preliminary orders and any recommendations to the district
court regarding dispositive matters. See N.D. Fla.
Loc. R. 72.2(B); see also 28 U.S.C. §
636(b)(1)(B), (C) and Fed.R.Civ.P. 72(b). After careful
consideration of all issues presented by the parties, it is
the opinion of the undersigned that the habeas petition is a
“mixed” petition, meaning it includes both
exhausted and unexhausted claims, and it should be stayed,
rather than dismissed, to enable Petitioner to exhaust his
available state court remedies, pursuant to Rhines.
BACKGROUND AND PROCEDURAL HISTORY
was charged in the Circuit Court in and for Walton County,
Florida, Case No. 2011-CF-702 with one count of capital
sexual battery (Ex. A at 16). A jury trial was held on August
6-7, 2012 (Ex. C). The jury found Petitioner guilty as
charged (see Ex. A at 92, Ex. C at 298-99). At the
conclusion of trial, the court designated Petitioner as a
sexual predator and sentenced him to a term of natural life
in prison (Ex. C at 301-02). The written judgment provided
that Petitioner was ordered to serve a mandatory minimum term
of 25 years (see Ex. A at 119-25); however, this was
not part of the court's oral pronouncement of sentence
(see Ex. C at 301-02).
August 2, 2013, Petitioner filed a petition for belated
appeal in the Florida First District Court of Appeal
(“First DCA”), Case No. 1D13-3725 (Ex. E). The
First DCA granted the petition on December 26, 2013 (Ex. F).
Burns v. State, 128 So.2d 943, 944 (Fla. 1st DCA
2013) (Mem). The mandate issued January 13, 2014 (Ex. G).
Petitioner's appellate counsel filed an initial brief in
Case No. 1D14-170 (Ex. H), and the State filed an answer
brief (Ex. I). On June 30, 2015, the First DCA affirmed the
judgment and sentence per curiam without written opinion (Ex.
J). Burns v. State 171 So.3d 703 (Fla. 1st DCA 2015)
(Table). The mandate issued September 1, 2015 (Ex. M).
February 19, 2016, Petitioner filed a petition for writ of
habeas corpus in the First DCA, Case No. 1D16-0801, alleging
ineffective assistance of appellate counsel (Ex. S). The
First DCA denied the petition on the merits on July 10, 2018
(Ex. Y). Burns v. State, 248 So.3d 1113 (Fla. 1st
DCA 2018) (Table). On August 10, 2018, the First DCA denied
Petitioner's motion for rehearing (Exs. Z, AA).
meantime, on July 21, 2016, Petitioner filed a motion to
correct illegal sentence challenging the 25-year mandatory
minimum, pursuant to Rule 3.800 of the Florida Rules of
Criminal Procedure (Ex. N). The State conceded that
Petitioner was entitled to an amended judgment deleting the
mandatory minimum 25-year requirement (Ex. P). On December
15, 2016, the state circuit court granted the Rule 3.800
motion, removed the 25-year mandatory, and directed the clerk
of court to remove the provision from the judgment and
sentence (Ex. Q). An amended judgment rendered December 20,
2016 (Ex. R).
October 4, 2018, Petitioner filed a motion for
post-conviction relief in the state circuit court, pursuant
to Rule 3.850 of the Florida Rules of Criminal Procedure (Ex.
BB). On October 30, 2018, the circuit court denied the motion
as untimely (Ex. DD). Petitioner appealed the decision to the
First DCA, Case No. 1D19-2220 (see Exs. GG, HH, II).
The First DCA has not ruled on the appeal (see Ex.
commenced this federal habeas case on February 5, 2019,
during the pendency of the post-conviction appeal
(see ECF No. 1).
contends the habeas petition is premature, because the Rule
3.850 proceeding is still pending (see ECF No. 14).
Respondent contends this federal habeas case should be
dismissed without prejudice to enable Petitioner to satisfy
the exhaustion requirement (id. at 7-8).
Alternatively, Respondent asserts that if this court
determines that the habeas petition is a “mixed”
petition, the court may stay this proceeding and hold it in
abeyance, pursuant to Rhines (id. at 8).
Petitioner's response to the motion to dismiss, he
requests the alternative disposition proposed by Respondent,
i.e., that the court stay this proceeding and hold his habeas
petition in abeyance if the court determines that his
petition is a “mixed” petition (see ECF
It is a
long-standing prerequisite to the filing of a federal habeas
corpus petition that the petitioner have exhausted available
state court remedies, 28 U.S.C. § 2254(b)(1), thereby
giving the State the “‘opportunity to pass upon
and correct' alleged violations of its prisoners'
federal rights.” Duncan v. Henry, 513 U.S.
364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting
Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509,
30 L.Ed.2d 438 (1971) (citation omitted)). To satisfy the
exhaustion requirement, the petitioner must “fairly
present” his claim in each appropriate state court,
alerting that court ...