United States District Court, W.D. Oklahoma
L. PALK UNITED STATES DISTRICT JUDGE
Philip Libby, appearing pro se, filed this action pursuant to
28 U.S.C. § 2254 for a writ of habeas corpus. He
challenges the constitutionality of his state court
conviction and sentence on nine counts of Child Sexual Abuse
in Case No. CF-2015-249, District Court of Oklahoma County,
State of Oklahoma.
to 28 U.S.C. § 636(b)(1)(B) and (C), this matter was
referred for initial proceedings to United States Magistrate
Judge Gary M. Purcell, who conducted an initial review of the
Petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts. Magistrate
Judge Purcell then issued a Report and Recommendation [Doc.
No. 5] recommending that the action be dismissed without
prejudice for failure to exhaust state court remedies
“unless Petitioner chooses to either dismiss the
unexhausted claim and proceed with the exhausted claims or
agrees to stay this Petition and hold the matter in abeyance
while returning to state court to raise his unexhausted
claim.” R&R at 9.
“objected” to the Report and Recommendation [Doc.
No. 6] and states that he “agree[s] to stay the
Petition and hold the matter in abeyance while he returns to
state court to exhaust his unexhausted claims.”
Id. at 1.
raises three grounds for habeas relief: (1) Ground One -
ineffective assistance of trial counsel; (2) Ground Two -
insufficiency of the evidence to support his convictions as
to Counts 1-3, 5, 15 and 16-19; and (3) Ground Three -
violation of his double jeopardy rights as to Counts 3, 5, 15
and 16. As found by Magistrate Judge Purcell, Petitioner
raised Grounds Two and Three on direct appeal to the Oklahoma
Court of Criminal Appeals (OCCA). See R&R at
2-3. But Petitioner did not raise the ineffective assistance
of trial counsel claim stated in Ground One on direct appeal
and he has not raised the claim in any state post-conviction
proceeding. See R&R at 3; see also Pet.
at 13, ¶ 13.
Magistrate Judge Purcell found, Petitioner has filed an
impermissible “mixed petition, ” i.e., a petition
that contains both exhausted and unexhausted claims.
See R&R at 8 (citing Rose v. Lundy, 455
U.S. 509 (1982)). When faced with a mixed petition, a
district court “may either (1) dismiss the entire
petition without prejudice in order to permit exhaustion of
state remedies, or (2) deny the entire petition on the
merits.” Wood v. McCollum, 833 F.3d 1272, 1273
(10th Cir. 2016) (internal quotation marks and citation
omitted). “The court may also permit the petitioner to
delete the unexhausted claim from his petition and proceed
only on the exhausted claims, or, if the equities favor
such an approach, it may stay the federal habeas
petition and hold it in abeyance while the petitioner returns
to state court to exhaust the previously unexhausted
claims.” Id. (internal quotation marks and
citation omitted, emphasis added). The latter approach - a
stay and abeyance - is available only in “limited
circumstances.” Rhines v. Weber, 544 U.S. 269,
276-78 (2005). The petitioner must first demonstrate
“good cause” for his failure to exhaust his claim
in state court and that his unexhausted claim is not
“plainly meritless.” Id. at 278. See
also Fairchild v. Workman, 579 F.3d 1134, 1153 (10th
Cir. 2009) (recognizing that in Rhines the Court
identified three prerequisites to granting a stay: (1) good
cause for failure to exhaust; (2) a potentially meritorious
claim; and (3) lack of dilatory tactics by the petitioner).
to grant a stay is a matter of the Court's discretion,
not a matter of right of the habeas petitioner. In the Report
and Recommendation, however, Petitioner was advised that he
could “agree” to stay the action. See
R&R at 9. Thus, the three prerequisites to granting a
stay were left unaddressed. Although Petitioner alleges he
did not raise the ineffective assistance of trial counsel
claim on direct appeal due to the ineffectiveness of his
appellate counsel, he offers no reason why he did not seek
state post-conviction relief as to this claim prior to filing
his federal habeas petition. Moreover, as Magistrate Judge
Purcell noted, the one-year limitations period governing
Petitioner's federal habeas petition has not expired.
See R&R at 9. n. 5 (citing 28 U.S.C. §
2244(d)(1)(A)). This fact weighs against granting a stay.
Order to Show Cause
the present record does not support granting a stay,
Petitioner has not been given the opportunity to address the
matter. Under these circumstances, Petitioner is directed to
show cause why the Petition should not be dismissed as a
mixed petition. If Petitioner seeks a stay, he must
demonstrate “good cause” exists to warrant a
stay, as explained above. Alternatively, Petitioner may still
choose to: (1) either dismiss the entire Petition - both
exhausted and unexhausted claims or (2) dismiss his
unexhausted claim and proceed only with the exhausted
THEREFORE ORDERED that the Court ADOPTS the Report and
Recommendation to the extent it finds the Petition is a mixed
petition containing both exhausted and unexhausted claims.
The Court, however, DECLINES to ADOPT the Report and
Recommendation to the extent it recommends granting
Petitioner the right to stay the action, absent Petitioner
making the requisite showing in support of such a stay.
FURTHER ORDERED that Petitioner must show cause within
twenty-one days of the date of this Order, or by March 19,
2019, why the action should be stayed and held in abeyance.
At this time, the Court reserves its discretionary ruling as
to whether a stay is ...