The opinion of the court was delivered by: Baker, District Judge.
This death penalty habeas corpus matter is before the court
on the petitioner's motion to stay the proceedings and hold
them in abeyance pending state court consideration of his
unexhausted claims. The petitioner contends that two recent
Illinois state court decisions will allow him a second
post-conviction proceeding. The respondents counter with a
motion to dismiss the petition outright under Rose v.
Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379
(1982), as it is a mixed petition containing both exhausted
and unexhausted claims. The parties therefore agree that the
court should not proceed further on the petition. They also
agree that the petitioner will be free to return to this court
after exhausting his claims in state court. This is so because
if the petition is stayed it remains held in abeyance and if
it is dismissed as mixed there is no successive petition issue
because the dismissal would not have been on the merits.
See Kuhlmann v. Wilson, 477 U.S. 436, 451, 106 S.Ct.
2616, 2625, 91 L.Ed.2d 364 (1986).*fn1 At this time, the
court grants the stay and holds the case in abeyance pending
exhaustion of the petitioner's state court remedies.
The dispute centers around the petitioner's concern that his
execution date could be set and carried out while his new
post-conviction petition awaits decision. On April 13, 1993,
the Illinois Supreme Court granted a stay of execution pending
resolution of this federal action and if this court now
dismisses the petition, Illinois could conceivably move
forward on the execution if no state judge is persuaded to
grant another stay. The respondents assert that a dismissal
would be most efficient because the parties would go directly
before the Illinois Supreme Court as the petitioner sought to
extend the stay. Then, the decision on the stay would signal
whether the Illinois Supreme Court considered the issues to be
procedurally defaulted (stay refused) or ripe for a merits
review (stay granted).
The respondents conceded at oral argument that the court has
the discretion to grant the petitioner his stay without
offending any higher court precedent. The Supreme Court has
clearly held that "a district court must dismiss habeas
petitions containing both exhausted and unexhausted claims."
Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198,
1205, 71 L.Ed.2d 379 (1982) (footnote omitted). It is
important to note initially that Rose reversed a
district court's grant of the writ based on a mixed
petition. See id. at 513, 102 S.Ct. at 1200. The
district court had analyzed the exhausted claims on the merits
and did not consider the unexhausted claims "in the
constitutional framework" although it said "in assessing the
atmosphere of the cause taken as a whole these items may be
referred to collaterally." Id. (footnote and citation
omitted). "The [Rose] court held only that, if final
relief on one or more claims is unavailable due to
exhaustion, the district courts should withhold relief on all
claims." James S. Liebman, Federal Habeas Corpus Practice and
Procedure § 13.3c at 188 (1988) (emphasis in original).
It is also important to note that the exhaustion rule in
general, and the total exhaustion rule of Rose in
particular, are based on concerns of comity and are not
See Granberry v. Greer, 481 U.S. 129, 131, 107 S.Ct.
1671, 1673, 95 L.Ed.2d 119 (1987) (citing Strickland v.
Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2062-63,
80 L.Ed.2d 674 (1984) (citing Rose, 455 U.S. at
515-20, 102 S.Ct. at 1201-04)). The total exhaustion rule is
primarily concerned with avoiding piecemeal litigation of the
claims in federal court. See Liebman, § 13.3c at
188 (citing Rose, 455 U.S. at 520, 102 S.Ct. at
1204). There are many examples of federal courts overlooking
lack of exhaustion where the circumstances warranted. See
e.g., Granberry, 481 U.S. at 131, 107 S.Ct. at 1673-74
(Strickland is an example where an appellate court
could consider the merits of a mixed petition); Gray v.
Director, Dep't of Corrections, 721 F.2d 586, 598 (7th
Cir. 1983), cert. denied, 466 U.S. 909, 104 S.Ct.
1690, 80 L.Ed.2d 163 (1984) (declining to require further
exhaustion where the prisoner was entitled to relief and the
state courts had already granted new trials to co-defendants
— and because of the passage of time since the original
trial and the need to get on with a new trial as soon as
possible); see also Liebman, § 9.3b at 122-23
(cases collected); Larry W. Yackle, Postconviction Remedies
§ 55 at 238-42 (1981) & at 76-81 (1993 Cumulative
Supplement) (same). "Accordingly, nothing in the [total
exhaustion] rule prevents a district from holding the
entire petition in abeyance under a stay pending
exhaustion, then adjudicating the entire petition
once all claims are exhausted." Liebman, § 13.3c at 188
(emphasis in original). In fact, this stay/abeyance procedure
facilitates the policy behind the rule by permitting the
petitioner to exhaust all of his claims before proceeding in
federal court without forcing him to surrender any claims.
There are many examples of cases where courts have granted
or endorsed stays in similar situations. See e.g., Simpson
v. Camper, 927 F.2d 392, 393-94 (8th Cir. 1991) (appeal
of district court's grant of the writ held in abeyance pending
exhaustion); Byrd v. Delo 917 F.2d 1037, 1048 (8th
Cir. 1990) ("a stay of execution is generally appropriate
where a petitioner has failed to exhaust state remedies");
Scott v. Dugger, 891 F.2d 800, 802 (11th Cir. 1989)
(per curiam) (circuit court implicit approval of district
court's stay of execution and stay of federal habeas
proceedings pending exhaustion), cert. denied,
498 U.S. 881, 111 S.Ct. 224, 112 L.Ed.2d 179 (1990);
Neuschafer v. Whitley, 860 F.2d 1470, 1476- n. 11
(9th Cir. 1988), cert. denied, 493 U.S. 906, 110
S.Ct. 264, 107 L.Ed.2d 214 (1989) (petitioner could have
submitted mixed petition and then asked the district court to
hold it in abeyance and issue a stay of execution pending
exhaustion); Prejean v. Blackburn, 743 F.2d 1091,
1094 (5th Cir. 1984) (circuit court implicit approval of
district court's temporary stay of execution pending
exhaustion); Tinder v. Paula, 725 F.2d 801, 805 (1st
Cir. 1984) ("Whether jurisdiction over a claim for habeas
relief should be retained pending exhaustion of state court
remedies is generally a matter within the discretion of the
dismissing court"); Collins v. Lockhart,
707 F.2d 341, 344 (8th Cir. 1983) ("The total exhaustion rule of
Rose v. Lundy, supra, requires that we defer
consideration of Collins' petition until the Arkansas courts
have had an opportunity to pass upon these matters . . .
[a]ccordingly, we reverse and remand to the district court
with instructions to retain jurisdiction and hold the case in
abeyance under the existing stay of execution").
The Seventh Circuit has implicitly approved of a stay
recently granted by Chief Judge Sharp of the Northern District
of Indiana in Schiro v. Clark, 963 F.2d 962, 967 (7th
Cir. 1992) ("Chief Judge Allen Sharp remanded the case to the
Indiana courts for Schiro to exhaust all available state
remedies"), petition for cert. granted, ___ U.S. ___,
113 S.Ct. 2330, 124 L.Ed.2d 243 (1993); see also United
States v. Ogilvie, 337 F.2d 427, 428 (7th Cir.) (stay of
proceedings pending exhaustion in a pre-Rose case),
cert. denied, 379 U.S. 950, 85 S.Ct. 452, 13 L.Ed.2d
547 (1964). While Schiro exhausted his claims the federal
petition was held in abeyance and, after exhaustion, he filed
an amended petition that the court fully reviewed. See
Schiro v. Clark, 754 F. Supp. 646, 649 (N.D.Ind.
The respondents primary position at oral argument was that
entering a dismissal at this time would be most efficient
because the parties would be immediately before the Illinois
Supreme Court as the petitioner would seek to extend the stay.
If the court granted the stay that would mean the claims were
not procedurally defaulted and the petitioner could freely
pursue his post-conviction remedies. If the Illinois court
denied the stay, however, respondents' counsel stated that
this would necessarily signal that the claims were
procedurally defaulted meaning the petitioner would have to
return to this court, get a federal stay, and then proceed on
a new federal habeas petition. The three claims would then be
dismissed unless the petitioner could show cause for and
prejudice from their default. See Wainwright v.
Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).
This court fails to see how a denial of a motion to extend the
stay, without more, would necessarily mean that the Illinois
court was relying on procedural default. Just as courts are
instructed not to read meaning into United States Supreme
Court denials of certiorari, this court would not assume a
procedural default.*fn3 The better result is to grant the
stay and allow the parties to proceed through all three levels
of the Illinois courts and establish a clear record of
procedural default or merits analysis for this court to
IT IS THEREFORE ORDERED that the petitioner's motion to stay
the proceedings on the petition for the writ of habeas corpus
and hold in abeyance said proceedings until state court
proceedings have been fully resolved (docket # 12) is granted.
IT IS FURTHER ORDERED that the respondents' motion to
dismiss the petition for a writ of habeas ...