June 10, 2013
United States of America ex rel. Darrell Cosey, Petitioner,
Rick Harrington, Warden, Menard Correctional Center, Respondent.
MEMORANDUM OPINION AND ORDER
THOMAS M. DURKIN, District Judge.
Petitioner Darrell Cosey, a state prisoner serving a 40-year prison term for murder, seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254. R. 1. Respondent Warden Rick Harrington has moved to stay these proceedings pending Cosey's exhaustion of available state court remedies with respect to one of the claims in his § 2254 petition. R. 13. Cosey agrees that a stay should be granted. R. 18. The Court finds that a stay of these proceedings is appropriate and grants the Warden's motion. The case is stayed pending final disposition of Cosey's pending state court proceedings. The parties are directed to submit a report by December 8, -, notifying the Court as to the status of Cosey's postconviction litigation.
Following his 1996 conviction for first degree murder by a Cook County jury, Cosey was sentenced to 40 years of imprisonment. R. 13, Ex. A. After an unsuccessful direct appeal, Cosey then pursued two rounds of state postconviction relief, also unsuccessful. Id., Exhs. C, D, J, K, N, & O. On July 10, 2012, Cosey filed a motion for leave to file a successive postconviction petition and the proposed petition in the Circuit Court of Cook County,  alleging that Illinois' automatic transfer provision violates due process and the Eighth Amendment. Id., Exh. P. The motion and proposed successive petition remain pending in the state trial court. Id.; R. 20. Cosey then mailed his § 2254 petition on August 24, 2012, R. 4, and the Court received it on August 31, 2012, R. 1. The § 2254 petition raises, among other things, the same due process and Eighth Amendment challenges to Illinois' automatic transfer provision. R. 1 at 4, 66-72.
The Warden moves for a stay, arguing that Cosey's § 2254 petition is a mixed petition and that Cosey has exhausted his state court remedies for all the claims in his § 2254 petition except the claim currently raised in Cosey's pending state postconviction litigation. The Warden argues that a stay is particularly appropriate here because the timeliness of Cosey's § 2254 petition depends on the manner in which the state courts resolve Cosey's unexhausted claim.
"Where state remedies remain available to a habeas petitioner who has not fairly presented his constitutional claim to the state court, the exhaustion doctrine precludes a federal court from granting relief on that claim." Perruquet v. Briley, 390 F.3d 505, 514 (7th Cir. 2004). When such a situation arises, the court has the option of denying the claim on the merits, § 2254(b)(2), or dismissing the § 2254 petition without prejudice to allow the habeas petitioner to return to state court to litigate the unexhausted claim. Perruquet, 390 F.3d at 514 (citing cases). Where the § 2254 petition is a mixed petition-one containing exhausted and unexhausted claims- see Arrieta v. Battaglia, 461 F.3d 861, 865 (7th Cir. 2006)-a district court has the discretion to stay proceedings on that petition pending exhaustion of state court remedies of an unexhausted claim in that petition (1) if there is "good cause" for the habeas petitioner's failure to first exhaust his unexhausted claim in state court; and (2) the unexhausted claim is not "plainly meritless." See Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Also a consideration in deciding whether to dismiss the § 2254 petition without prejudice (allowing the habeas petitioner to return to state court to litigate the unexhausted claim) is whether such a dismissal would "effectively end any chance at federal habeas review, " namely whether dismissal would jeopardize the petitioner's ability to timely refile his § 2254 petition within the statutory time period. Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006).
Here, the Warden argues, and the Court agrees, that the timeliness of Cosey's habeas petition hangs on whether the state courts grant Cosey leave to file his successive postconviction petition. If the state courts deny Cosey leave to file his proposed successive petition, then it has no tolling effect under 28 U.S.C. § 2244(d)(2) for it would not have been properly filed. See Martinez v. Jones, 556 F.3d 637, 639 (7th Cir. 2009). Accordingly, under the Warden's calculations, the § 2254 petition would likely be untimely, absent any equitable tolling of the limitations period. But if the state courts grant Cosey leave to file his proposed petition, then that petition would be deemed properly filed for § 2244(d)(2) purposes. Enough time would then remain on Cosey's limitations clock that his § 2254 petition would likely be timely filed.
Cosey challenges the Warden's timeliness calculation, arguing that he is entitled to equitable tolling of the limitations period and that his § 2254 petition would be timely even if the state courts ultimately deny him leave to file his successive postconviction petition. Cosey nevertheless agrees that a stay is appropriate while he exhausts his available state court remedies as to his unexhausted claim.
Because the timeliness of Cosey's § 2254 petition will depend on how the Illinois courts adjudicate Cosey's pending motion for leave to file a successive postconviction petition and a dismissal without prejudice could potentially end any chance of later federal habeas review, the Court finds that a stay is appropriate while Cosey exhausts his state court remedies as to his unexhausted claim. See Dolis, 454 F.3d at 725. Accordingly, the Court grants the Warden's motion to stay.
For the foregoing reasons, the Court grants the Warden's motion to stay Cosey's § 2254 proceedings pending the outcome of Cosey's state court litigation. The parties are directed to file a status report by December 8, 2013, notifying the Court as to the status of Cosey's pending postconviction litigation.