United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE
inmate Gene Ellis petitions the Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Doc. 1). Ellis
challenges the constitutionality of his convictions following
a guilty plea for kidnapping, criminal sexual penetration,
criminal sexual contact of a minor, aggravated burglary,
aggravated assault, and bribery of a witness. (Id.,
at 16-19). Primarily, Ellis asserts his trial attorney was
ineffective because counsel allegedly advised and promised
Ellis his sentence would be capped at fifteen years if he
pleaded guilty. (Id., at 16-19). Ellis heeded his
lawyer's advice to plead guilty, but received a
forty-three-year term of incarceration and up to a lifetime
of parole. (Id.). Ellis also claims he was convicted
in violation of the Double Jeopardy Clause. (Id.).
The parties agree that Ellis's petition in this Court is
“mixed.” (Compare Doc. 11 with
Doc. 13). It raises one ineffective-assistance-of-counsel
claim that Ellis did not properly exhaust by presenting the
issue to and requesting relief from the New Mexico Supreme
Court: whether Ellis's lawyer was constitutionally
deficient for failing to inform Ellis prior to his plea that
the thirteen-year-old victim, M.W., was unwilling to
cooperate with the prosecution and had relocated. (Doc. 11).
confronted with a mixed petition, the Court may not simply
dismiss the unexhausted claims and reach the merits of those
that have been fully and fairly presented to the state court.
See Wood v. McCollum, 833 F.3d 1272, 1274 (10th Cir.
2016). Instead, the Court must (1) dismiss the mixed petition
in its entirety; (2) stay the petition and hold it in
abeyance while the petitioner returns to state court to raise
his unexhausted claims; (3) permit the petitioner to dismiss
the unexhausted claims and proceed with the exhausted claims;
or (4) ignore the exhaustion requirement altogether and deny
the petition on the merits if none of the petitioner's
claims has any merit. Fairchild v. Workman, 579 F.3d
1134, 1156 (10th Cir. 2009). Here, Ellis asks and has
separately moved for a stay and abeyance.
Court may grant a stay and hold a petition for a writ of
habeas corpus in abeyance only in instances where the inmate
shows “good cause” for failing to present the
claims before the state court in the first instance, and the
unexhausted claims are not “plainly meritless.”
Rhines v. Weber, 544 U.S. 269, 277 (2005).
“Good cause” for failure to exhaust includes
confusion about whether a state petition would be timely,
ineffective assistance of post-conviction counsel, or
“any external objective factor that cannot fairly be
attributable” to the state inmate. Doe v.
Jones, 762 F.3d 1174, 1182 (10th Cir. 2014) (quotation
omitted). To establish good cause, Ellis must do more than
“merely list the new claims he wants to bring, without
proffering a convincing reason for a stay or satisfying the
other Rhines requirements.” Kincaid v.
Bear, 687 Fed.Appx. 676, 679 (10th Cir. 2017).
does not argue he was confused about timeliness or that
post-conviction counsel was ineffective. Instead, he contends
that the victim's relocation and lack of cooperation
constitute newly discovered evidence that excuse exhaustion.
Although the Court has little trouble accepting newly
discovered evidence as good cause favoring a stay, the
information here was known to Ellis months before he filed
his petition in this Court on January 4, 2018. On October 10,
2017, Ellis, pro se, moved in the state district
court to set aside his guilty plea because “defense
counsel . . . has proven ineffective . . . by failing to
advise the defendant that the alleged victim in the above
entitled cause was refusing to cooperate with the prosecution
and had the defendant known he would not have pled guilty and
insisted on going to trial.” (Doc. 11-5, at 78). Thus,
any uncooperativeness is not newly discovered evidence that
amounts to good cause for a stay or something beyond
Ellis's control that prevented him from following the
Ellis repeatedly points out he has no training in the law and
will suffer prejudice because the statute of limitations
likely will expire if the matter is not stayed. But lack of
legal expertise does not explain how he was unable to exhaust
available remedies in the state court before filing
the instant petition or excuse the requirement that he do so.
See Francis v. Pryor, 2014 U.S. Dist. LEXIS 10057,
at *8 (D. Kan. Jan. 28, 2014) (explaining that “[a] pro
se litigant's allegation that he failed to exhaust state
court remedies due to his unfamiliarity with legal process or
lack of legal knowledge, is not sufficient to establish
“good cause”). As for prejudice, had Ellis
pursued a collateral challenge as allowed by New Mexico law,
the federal limitation period would have been tolled and
Ellis would have avoided the predicament he now faces.
See Rhines, 544 U.S. at 274-75 (explaining that a
“properly filed application for State post-conviction
or other collateral review” tolls the statute of
limitation, 28 U.S.C. § 2244(d)(2)). Notwithstanding
Ellis's professed lack of legal training, the Court
determines a stay and abeyance of the case and habeas
petition are not warranted.
of the remaining options for addressing mixed habeas
challenges, the Court recommends that Ellis's petition be
dismissed in its entirety unless Ellis voluntarily dismisses
the unexhausted claim. The Court does not believe it
advisable or beneficial to ignore the exhaustion requirements
and address the merits of the claim. An appropriate balance,
therefore, is to allow Ellis to determine whether he would
like to proceed only with the exhausted claims by filing a
written notice dismissing his remaining challenge. As Ellis
acknowledges, he likely will forfeit federal review of the
unexhausted claim altogether. See 28 U.S.C. §
2244(b)(1); Tapia v. Lemaster, 172 F.3d 1193, 1195
(10th Cir. 1999) (a petitioner who elects to proceed only on
exhausted claims must meet the requirements for filing a
successive petition to later raise the unexhausted
challenges). If Ellis chooses not to dismiss the unexhausted
claims, the Court's recommendation, if adopted, means
dismissal of the petition without prejudice. Although Ellis
could return to the New Mexico courts to present his claim,
Ellis faces statute of limitations problems for any future
habeas petition in this Court. See 28 U.S.C. §
2244(d)(1) (imposing a one-year limitation period from the
date the judgment becomes final).
Ellis has not exhausted available remedies in the New Mexico
courts for each claim he has presented in this Court.
Further, Ellis has not established good cause for a stay and
abeyance of this matter while he returns to the state court
to exhaust. Although his petition for a writ of habeas corpus
is defective, Ellis should be permitted to voluntarily
dismiss his unexhausted claim to permit the Court to reach
the merits of his other constitutional challenges.
IS, THEREFORE, RECOMMENDED that Ellis's motion
for a stay and abeyance (Doc. 13) be DENIED.
IS FURTHER RECOMMENDED that Ellis's mixed
petition for a writ of habeas corpus (Doc. 1) be
DISMISSED in its entirety subject to Ellis
first being permitted to voluntarily dismiss his unexhausted
claim (and thus allowing the Court to reach the merits of the
exhausted claims) by filing a document ...