                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                August 12, 2014
                                   PUBLISH                    Elisabeth A. Shumaker
                                                                  Clerk of Court
              UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 JOHN DOE,

       Petitioner-Appellant,

 v.
                                                        No. 12-6311
 JUSTIN JONES, Director;
 OKLAHOMA DEPARTMENT OF
 CORRECTIONS; E. SCOTT PRUITT,
 Attorney General, State of Oklahoma,

       Respondents-Appellees.


                 Appeal from the United States District Court
                    for the Western District of Oklahoma
                         (D.C. No. 5:12-CV-00182-F)


Claudia Van Wyk, Federal Community Defender, Eastern District of
Pennsylvania, Philadelphia, Pennsylvania (Robert R. Nigh, Jr., Brewster &
De Angelis, P.L.L.C., Tulsa, Oklahoma, with her on the briefs), for Petitioner-
Appellant.

Seth S. Branham, Assistant Attorney General (E. Scott Pruitt, Attorney General),
State of Oklahoma, Oklahoma City, Oklahoma, for Respondents-Appellees.


Before HARTZ, SEYMOUR, and TYMKOVICH, Circuit Judges.


SEYMOUR, Circuit Judge.
      Petitioner John Doe, 1 a federal prisoner, filed this first habeas petition

pursuant to 28 U.S.C. § 2254 and an almost identical post-conviction relief

application in state court, challenging the constitutionality of a prior Oklahoma

state court conviction based on evidence of actual innocence. He also filed a

motion to abate this § 2254 action pending state court exhaustion of his claims.

The district court dismissed his habeas petition without prejudice, adopting the

magistrate judge’s Report and Recommendation and holding that a stay under

Rhines v. Weber, 544 U.S. 269 (2005), was not available because the petition was

not “mixed” 2 as in Rhines and, in any event, because petitioner lacked good cause

for the stay. Although we disagree with the district court’s reasoning regarding

the potential application of Rhines, we affirm its denial of a stay.



                                            I

      Petitioner was convicted of first-degree murder by a jury in Oklahoma and

sentenced to life without parole. His direct appeal was unsuccessful and he did

not file for a writ of certiorari, an application for state post-conviction relief, or a

federal habeas petition. He was separately convicted in federal court for robbery

of a federally insured bank, which took place in connection with the Oklahoma

      1
       In light of the sealed nature of portions of the record, we have omitted the
name of petitioner and all nonessential facts.
      2
        A “mixed” habeas petition contains claims that have been exhausted in
state court and ones that have not. Rhines, 544 U.S. at 271.

                                           -2-
murder, and was sentenced to life imprisonment for that crime. While serving the

federal life sentence in Texas, petitioner was convicted of murdering a fellow

inmate. The government introduced evidence of petitioner’s Oklahoma murder

conviction during the sentencing phase of his federal capital case, and he was

subsequently sentenced to death.

      Petitioner contends that following the imposition of his death sentence,

newly discovered evidence came to light of his factual innocence of the

Oklahoma murder and related federal robbery. In response to this new

evidence—and within one year of the factual predicate that he asserts made its

discovery possible (two days short of exactly one year)—petitioner filed a

petition for post-conviction relief in Oklahoma state court and this § 2254 petition

in federal court, 3 along with a motion to stay and abate the § 2254 proceeding

pursuant to Rhines until he could exhaust his state court remedies. 4 Petitioner




      3
       None of the claims in the federal petition were exhausted in state court
and, with the exception of the actual innocence claim, they are concededly
untimely under 28 U.S.C. § 2244(d)(1).
      4
        Petitioner had already filed a 28 U.S.C. § 2255 action in Texas, in which
he is challenging his federal death sentence. The federal district court in Texas
granted his motion to stay and abate that proceeding pending resolution of post-
conviction proceedings challenging his Oklahoma conviction, which the court
required him to pursue within thirty days of the order to stay. Four days later,
petitioner filed the state and federal requests for post-conviction relief from his
Oklahoma conviction.

                                         -3-
raises an actual innocence claim both as a freestanding constitutional claim5 and

as a “gateway” to raising his otherwise time-barred constitutional claims,

including ineffective assistance of trial and appellate counsel and suppression of

exculpatory evidence. See Schlup v. Delo, 513 U.S. 298, 315 (1995) (“[A] claim

of innocence is . . . a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on the merits.”

(quoting Herrera, 506 U.S. at 404) (internal quotation marks omitted)).

      The magistrate judge recommended the motion to stay be denied and the

§ 2254 petition be dismissed without prejudice because the petition was not mixed

as in Rhines and because a stay was not warranted. The district court adopted the

Report and Recommendation and dismissed the petition. It then denied

petitioner’s Motion to Alter and Amend Judgment, as well as his request for a

certificate of appealability.

      Petitioner filed a timely notice of appeal and sought a certificate of

appealability from this court, which was granted.



                                         II

      We review de novo the district court’s refusal to grant a stay on the basis


      5
        The Supreme Court has “not resolved whether a prisoner may be entitled
to habeas relief based on a freestanding claim of actual innocence.” McQuiggin
v. Perkins, 133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390,
404-05 (1993)).

                                        -4-
that the petition was not mixed. Cummings v. Sirmons, 506 F.3d 1211, 1222

(10th Cir. 2007). We review for abuse of discretion the court’s alternative denial

of petitioner’s particular request for a stay due to his failure to show good cause.

See Rhines, 544 U.S. at 278-79.

      A prisoner challenging a state conviction normally has one year to file a

federal habeas petition, starting from “the date on which the judgment became

final by the conclusion of direct review or the expiration of the time for seeking

such review.” § 2244(d)(1)(A). But if the petitioner alleges newly discovered

evidence, the filing deadline is one year from “the date on which the factual

predicate of the claim . . . could have been discovered through the exercise of due

diligence.” § 2244(d)(1)(D). Based on petitioner’s habeas petition, we assume

without deciding that the factual predicate of his actual innocence claim could not

have been discovered with due diligence before the alleged triggering event,

making the claim timely under § 2244(d)(1)(D). In addition, a habeas petition’s

claims generally must be exhausted in state court before a federal court may

review them. § 2254(b)(1)(A).

      Petitioners were not always required to exhaust all of their claims in state

court prior to filing a federal habeas petition in order to preserve each claim for

federal review. Prior to Rose v. Lundy, 455 U.S. 509 (1982), they were able to

proceed piecemeal as long as their failure to assert the later grounds in a prior

petition was not found to be “an abuse of the writ.” See Sanders v. United States,

                                          -5-
373 U.S. 1, 17 (1963); see also Lundy, 455 U.S. at 514 n.6 (“[A] second or

successive petition may be dismissed . . . [where] new and different grounds are

alleged, [if] the judge finds that the failure of the petitioner to assert those

grounds in a prior petition constituted an abuse of the writ.” (quoting 28 U.S.C.

§ 2254 Rule 9(b) (1976) (amended 2004))). The majority of Courts of Appeals

“permitted the District Courts to review the exhausted claims in a mixed petition

containing both exhausted and unexhausted claims.” Lundy, 455 U.S. at 513 n.5.

      Then, in Lundy, the Court held that before a federal district court may

review a habeas petition, all of its claims must be exhausted in state court. Id. at

522. This “total exhaustion rule” requires a district court to dismiss habeas

petitions containing both exhausted and unexhausted claims. Id. In deciding to

require total exhaustion, the Court wanted to thwart prisoners intentionally

withholding grounds for habeas relief “in the hope of being granted two hearings

rather than one.” Id. at 521 (quoting Sanders, 373 U.S. at 18) (internal quotation

marks omitted). The Court in Sanders was concerned about “abuse of the writ,”

noting that “[n]othing in the traditions of habeas corpus requires the federal

courts to tolerate needless piecemeal litigation, to entertain collateral proceedings

whose only purpose is to vex, harass, or delay.” 373 U.S. at 17-18 (discussing

successive petitions). Lundy was decided in light of the doctrine that “one court

should defer action on causes properly within its jurisdiction until the courts of

another sovereignty with concurrent powers, and already cognizant of the

                                           -6-
litigation, have had an opportunity to pass upon the matter.” 455 U.S. at 521

(quoting Darr v. Burford, 339 U.S. 200, 204 (1950)) (internal quotation marks

omitted). The Court determined that total exhaustion “promotes comity and does

not unreasonably impair the prisoner’s right to relief.” Id. at 522.

      Significantly, Lundy was decided at a time when petitioners could return to

federal court after exhausting their unexhausted claims to “present their perfected

petitions with relative ease,” as there was no statute of limitations on filing

federal habeas petitions. Rhines, 544 U.S. at 274. Only later did Congress enact

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which

introduced a one-year statute of limitations for filing federal habeas petitions.

§ 2244(d)(1) 6; see also Rhines, 544 U.S. at 274. Congress enacted AEDPA to

“reduce delays in the execution of state and federal criminal sentences,

particularly in capital cases” and to streamline the process by requiring a

petitioner to exhaust all his claims in state court before filing his federal petition.

Rhines, 544 U.S. at 276-77 (quoting Woodford v. Garceau, 538 U.S. 202, 206

(2003)) (internal quotation marks omitted). At the same time, AEDPA “preserved

Lundy’s total exhaustion requirement.” See id. at 274 (citing § 2254(b)(1)(A)).

      Almost a decade after Congress enacted AEDPA, the Supreme Court

unanimously acknowledged in Rhines that the interaction between Lundy’s total


      6
       The one-year clock is stopped while a petitioner’s “properly filed” state
post-conviction petition is pending. § 2244(d)(2).

                                          -7-
exhaustion requirement and AEDPA’s statute of limitations created at least two

risks: (1) “‘mixed’ petitions run the risk of forever losing their opportunity for

any federal review of their unexhausted claims”; and (2) “if a district court

dismisses a mixed petition close to the end of the 1-year period, the petitioner’s

chances of exhausting his claims in state court and refiling his petition in federal

court before the limitations period runs are slim.” Id. at 275, 279.

      In “recogniz[ing] the gravity of th[e] problem,” the Court sanctioned the

stay-and-abeyance procedure. Id. at 275-78. District courts have the prerogative

to decide whether a stay is warranted given the specific circumstances of a case.

Id. at 276 (citing Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). “[T]he power

to stay proceedings is incidental to the power inherent in every court to control

the disposition of the causes on its docket with economy of time and effort for

itself, for counsel, and for litigants.” Landis, 299 U.S. at 254 (discussing general

power to stay irrespective of whether petition is mixed). A district court has

broad discretion to stay a petition, but the Court made clear that this discretion is

not unlimited in the habeas context. See Rhines, 544 U.S. at 276-77 (pointing to

AEDPA’s “timeliness concerns” as limiting such discretion). “[G]ranting a stay

effectively excuses a petitioner’s failure to present his claims first to the state

courts,” which is “only appropriate when the district court determines there was

good cause for the petitioner’s failure to exhaust his claims first in state court.”

Id. at 277. But where a petitioner has good cause for filing his federal habeas

                                           -8-
petition before first exhausting the claims, and where his unexhausted claims are

“potentially meritorious” and his request for a stay is not made solely to delay

litigation, a district court’s denial of a stay would likely be an abuse of its

discretion. Id. at 278.

      The magistrate judge denied petitioner’s request for a stay because his

petition was not mixed and because the judge determined he failed to demonstrate

a need for a stay. We address these reasons in turn.

                                           A

      While the Court in Rhines explicitly discussed stays in the mixed-petition

context, id. at 278, its rationale is potentially applicable to a petition with wholly

unexhausted claims that is protectively filed during the pendency of state post-

conviction proceedings. Petitioners with unmixed petitions may run a similar risk

of “forever losing their opportunity” for federal review, id. at 275, depending on

the circumstances. Their chances of both returning to state court to exhaust their

claims and then refiling their federal petition before the limitations period runs

may be “slim,” especially where the unmixed petition is dismissed near the end of

the one-year statute of limitations period. See id. In such cases, “the petitioner’s

interest in obtaining federal review of his claims outweighs the competing

interests in finality and speedy resolution of federal petitions.” See id. at 278.

Three Circuit Courts of Appeal have addressed the issue of Rhines stays as they

apply to unmixed petitions: two have applied Rhines, see Heleva v. Brooks, 581

                                           -9-
F.3d 187, 191-92 (3d Cir. 2009), Dolis v. Chambers, 454 F.3d 721, 724-25 (7th

Cir. 2006), and one has declined to do so, see Rasberry v. Garcia, 448 F.3d 1150,

1154 (9th Cir. 2006).

      In Heleva v. Brooks, the Third Circuit relied on Pace v. DiGuglielmo, 544

U.S. 408 (2005), to conclude the Supreme Court “sanctioned” the application of a

Rhines stay to “context[s] outside that of mixed petitions.” 581 F.3d at 191. The

petitioner in Pace sought and was denied state post-conviction relief twice before

filing a federal habeas petition containing only the claims exhausted in his second

state post-conviction relief application. See 544 U.S. at 410-11, 418-19. In

finding that the second state post-conviction relief application was not “properly

filed” due to its untimeliness and that it therefore could not statutorily toll the

limitations period under § 2244(d)(2), the Court suggested petitioners could avoid

this problem “by filing a ‘protective petition’ in federal court and asking the

federal court to stay and abey the federal habeas proceedings until state remedies

are exhausted.” Id. at 416.

      As the court in Heleva noted, the petition in Pace was not mixed. 581 F.3d

at 191. It observed that “a distinction between mixed and non-mixed petitions

would make no sense in the context of granting a stay to avoid penalizing a

prisoner for reasonable confusion about state court filing requirements.” Id.

      The petitioner in Heleva filed a wholly unexhausted habeas petition and a

motion to stay and abate almost eight months after he filed a state petition for

                                          -10-
post-conviction relief. Id. at 189. He did so because he believed he would have

only one day left on his federal habeas statute of limitations clock once the state

addressed his post-conviction claims. Id. at 191. The court likened this “tight

timeline” to “the kind of reasonable confusion about state filing requirements that

Pace categorized as ‘good cause’ for a stay.” Id. at 191-92. It remanded the case

to the district court to determine whether the petitioner satisfied the requirements

for a Rhines stay, instructing the district court to consider, among other things,

the amount of time available to a petitioner to file a § 2254 petition after

exhausting state court remedies when evaluating whether a petitioner has met the

good cause standard. 7 Id. at 192-93.

      In Dolis v. Chambers, the Seventh Circuit granted a certificate of

appealability, vacated the district court’s dismissal without prejudice of the

petitioner’s wholly unexhausted habeas petition, and “remanded with instructions

to consider a stay of the federal court proceedings following Newell v. Hanks, 283

F.3d 827 (7th Cir. 2002),” the circuit’s pre-Rhines authority recognizing a court’s

authority to stay a mixed habeas petition. 8 Dolis, 454 F.3d at 722, 724-25.

      7
        The court determined the petitioner would actually have had at least 30
days to refile a habeas petition. Heleva, 581 F.3d at 193.
      8
         In Dolis, the court was addressing the state’s request for reconsideration
of its ruling, which it construed as a petition for rehearing. 454 F.3d at 722. The
state contended the court had no jurisdiction over the district court’s dismissal
without prejudice. Id. at 724. The court denied the petition and applied Rhines in
analyzing why the district court should consider a stay and abeyance rather than
                                                                           (continued...)

                                         -11-
Because the petitioner had not yet filed a state post-conviction application and his

federal habeas petition did not stop the AEDPA statute of limitations clock, a

dismissal without prejudice “would effectively end any chance at federal habeas

review.” Id. at 723-25. While the court did not specify exactly how much time

Dolis had remaining on the clock, it noted that “very shortly after the district

court dismissed his case, it became impossible for him to refile it, because it

would be barred by the statute of limitations.” Id. at 724. Accordingly, it

suggested:

       it would be wise for a petitioner to file in both state and federal court
       simultaneously, particularly where there is some procedural
       uncertainty about the state court post-conviction proceeding, and
       then ask the district court to stay the federal case until the state case
       concludes to ensure that she does not miss the one-year deadline.

Id. at 725 (emphasis added). The court added that “[i]n keeping with Rhines, the

district court would naturally have discretion to decide whether a stay was

warranted in the particular circumstances of each case.” Id.

       In Rasberry v. Garcia, the Ninth Circuit declined to extend the stay and

abeyance procedure to “the situation where the original habeas petition contained

only unexhausted claims . . . .” 448 F.3d at 1154. Rasberry filed a petition for

review in state court, which was denied, but then he filed a federal habeas

application which included only unexhausted claims. Id. at 1152. He filed a



(...continued)
dismissal. Id.

                                          -12-
second state post-conviction application to exhaust the claims in his federal

habeas petition only after his federal petition was dismissed for lack of exhaustion

and the federal statute of limitations had run. Id. On appeal from the district

court’s dismissal of his federal petition, he contended the district court was

obliged to inform “a pro se petitioner of the right to amend a habeas petition to

include exhausted claims that the petitioner omitted from the habeas petition-if it

is apparent from the record that the petitioner meant to include the claims.” Id. at

1153. In light of Rasberry’s request for a notice requirement, the Ninth Circuit

declined to apply Rhines to the petition before it because of a concern that “[s]uch

an extension would result in a heavy burden on the district court to determine

whether a petitioner who file[d] a petition that on its face is unexhausted may

have other exhausted claims that could have been raised.” Id. at 1154.

      While none of these cases map perfectly onto the facts of the present case,

petitioner’s situation is most like those of the petitioners in Dolis and Heleva. In

each of those cases, the petitioner had a brief amount of time remaining on his

federal statute of limitations clock. Whether this is deemed a “tight timeline,”

Heleva, 581 F.3d at 191, or cause for “procedural uncertainty about the state court

post-conviction proceeding,” Dolis, 454 F.3d at 725, it nevertheless is a

significant factor in determining whether a Rhines stay is appropriate. Petitioner

here has only two days remaining on his AEDPA statute of limitations and finds




                                         -13-
himself in a similar predicament as the petitioners in Heleva and Dolis except that

he followed the Seventh Circuit’s guidance and filed a protective petition.

       The court’s rationale in Rasberry must be read in light of the case’s factual

context. It is neither surprising nor unprecedented that a court would refuse to

recognize an obligation to provide the notice Rasberry requested be provided to

all habeas petitioners. Cf. Pliler v. Ford, 542 U.S. 225, 231-32 (2004) (declining

to require district judges to warn pro se petitioners that their federal claims would

be time-barred upon return to federal court). Furthermore, unlike Rasberry,

petitioner in the present case raised the exact same claims in both his state post-

conviction application and federal habeas petition, 9 which were filed

simultaneously just before the AEDPA statute of limitations had run: the

quintessential “protective petition.” Petitioner in the instant case does not seek

any type of notice from the district court, only the opportunity to receive a stay

and abeyance for the same reasons the Court in Rhines adopted the procedure in

the first place.

       Where a petitioner files a protective federal habeas petition during the

pendency of state court proceedings because of the short time period remaining on

the federal statute of limitations and can meet the Rhines three-part test, the total


       9
         Notably, this is petitioner’s first federal habeas petition, and “[d]ismissal
of a first federal habeas petition is a particularly serious matter.” Case v. Hatch,
731 F.3d 1015, 1036 (10th Cir. 2013) (alteration in original) (quoting House v.
Bell, 547 U.S. 518, 539 (2006)) (internal quotation marks omitted).

                                         -14-
exhaustion rule’s protection against “needless piecemeal litigation” and

“proceedings whose only purpose is to vex, harass, or delay” is not

compromised. 10 This is particularly so because

      [f]actors (2) and (3) of the Rhines test itself—that the “unexhausted
      claims are potentially meritorious,” and that “there is no indication
      that the petitioner engaged in intentionally dilatory litigation tactics,”
      [Rhines, 544 U.S.] at 278, 125 S.Ct. 1528—are designed, together
      with the first factor, to ensure that the Rhines stay and abeyance is
      not, contrary to the district court’s concern, available “in virtually
      every case.”

Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). Thus, the Rhines three-part

test strictly limits the availability of a stay where a petitioner has not yet

exhausted his state remedies. Accordingly, granting a stay where appropriate

under Rhines furthers the exhaustion doctrine’s principal design “to protect the

state courts’ role in the enforcement of federal law and prevent disruption of state

judicial proceedings.” Lundy, 455 U.S. at 518.

      Whether they have mixed or unmixed petitions, petitioners with little

chance of exhausting their claims in state court and returning to federal court

before the limitations period runs should not be foreclosed from the very

mechanism designed to protect against such risk if they can satisfy the Rhines

standards. In such cases, a categorical bar on stays for unmixed petitions would


      10
        Moreover, the enactment of AEDPA’s statute of limitations reduced the
time period in which piecemeal litigation could occur. See Lundy, 455 U.S. at
521 (noting concern that petitioners would splice petitions “in the hope of being
granted two hearings rather than one”).

                                          -15-
“unreasonably impair the prisoner’s right to relief,” id. at 522, and could

“effectively end any chance at federal habeas review,” Dolis, 454 F.3d at 725.

Accordingly, we conclude that the district court had discretion to consider a

Rhines stay even though petitioner filed an unmixed petition.

                                           B

      We now turn to the district court’s second reason for denying the stay, that

it was unwarranted in this case. The Court in Rhines made clear that a district

court would likely abuse its discretion if it denied a stay and dismissed a habeas

petition where “the petitioner had good cause for his failure to exhaust [before

filing his federal petition], his unexhausted claims are potentially meritorious, and

there is no indication that the petitioner engaged in intentionally dilatory

litigation tactics.” 544 U.S. at 278. Following its decision in Rhines, the Court

provided one example of good cause: “reasonable confusion about whether a state

filing would be timely.” Pace, 544 U.S. at 416. In doing so, the Court

specifically suggested the filing of a “protective petition” in federal court in order

to avoid the possibility that “a petitioner trying in good faith to exhaust state

remedies . . . litigate[s] in state court for years only to find out at the end that he

never properly filed [as required by § 2244(d)(2)], and thus that his federal

habeas petition is time barred.” Id. (internal quotation marks omitted). As we

have noted, both Helvea, 581 F.3d at 191-92, and Dolis, 454 F.3d at 724-25,

equated the short time remaining on a petitioner’s AEDPA limitations period to

                                          -16-
the type of good cause recognized in Pace. Other courts have determined in the

mixed-petition context that the Rhines good cause requirement is satisfied where a

petitioner’s failure to exhaust in state court before filing in federal court was

caused by ineffective assistance of post-conviction counsel, Blake, 745 F.3d at

983, by the “prosecution’s wrongful withholding of information,” Jalowiec v.

Bradshaw, 657 F.3d 293, 304-05 (6th Cir. 2011), or by “any external objective

factor that cannot fairly be attributable to [petitioner],” Hernandez v. Sullivan,

397 F. Supp. 2d 1205, 1206-07 (C.D. Cal. 2005) (analogizing “good cause”

requirement of Rhines to “cause” requirement in the procedural default context).

      Petitioner here relies on the short time remaining on the AEDPA statute of

limitations for his actual innocence claim to establish good cause within the

meaning of Rhines. Pursuant to our decision in Lopez v. Trani, 628 F.3d 1228,

1230-31 (10th Cir. 2010), however, the magistrate judge determined that because

petitioner’s actual innocence claim would be grounds for equitable tolling of the

federal limitations period if that limitations period has run before petitioner is

able to refile his federal habeas application after exhausting state court remedies,

a stay was unwarranted. While this case was pending appeal, the Supreme Court

decided McQuiggin v. Perkins, holding that a “credible showing of actual

innocence” provides an outright equitable exception to AEDPA’s statute of

limitations. 133 S. Ct. at 1928, 1931-33. The Court departed slightly from our

precedent in finding that a petitioner’s diligence is a factor in determining the

                                         -17-
plausibility of the actual innocence claim. Compare id. at 1928, 1935-36

(including unexplained delay as a factor in determining the credibility of actual

innocence claim), with Lopez, 628 F.3d at 1231 (noting that “the lack of a

showing of due diligence in pursuing claims should not prevent the equitable

tolling of the statute of limitations for a petitioner who has presented a substantial

claim of actual innocence”).

      In light of McQuiggin, petitioner here does not face a similar dilemma to

the “predicament” of the petitioner in Pace or to the petitioners in the other courts

finding that the Rhines good cause standard was met. If petitioner does have a

substantial actual innocence claim, as he contends, 11 under McQuiggin the

existence of such a claim will serve as an exception to the AEDPA statute of

limitations and he therefore does not have a legitimate concern that the claim will

be time barred in federal court. See Aplt. Reply Br. at 6 (conceding McQuiggin

“definitively established the availability of an innocence exception to the statute

of limitations”); McQuiggin, 133 S. Ct. at 1928. 12 McQuiggin thus eliminated

petitioner’s tight-timeline predicament, and he no longer has good cause within




      11
        We do not decide whether petitioner has a substantial innocence claim.
That determination is for the Oklahoma state court to decide in the first instance .
      12
        We focus solely on petitioner’s actual innocence claim with regard to the
need for a stay because the remaining claims are already untimely under AEDPA
and do not implicate the court’s concern in Pace and Rhines.

                                         -18-
the meaning of Rhines for his failure to first exhaust his claims in state court

before seeking federal court action.

      McQuiggin’s factoring of diligence into the credibility of a petitioner’s

actual innocence claim—whether “it is more likely than not that no reasonable

juror would have convicted him in the light of the new evidence,” 133 S. Ct. at

1935 (quoting Schlup, 513 U.S. at 327)—creates no higher burden at the equitable

exception stage than the petitioner would face in proving actual innocence as

either a gateway, House v. Bell, 547 U.S. 518, 538 (2006) (“A petitioner’s burden

at the gateway stage is to demonstrate that more likely than not, in light of the

new evidence, no reasonable juror would find him guilty beyond a reasonable

doubt . . . .”), or a freestanding claim, id. at 555 (noting a hypothetical

freestanding innocence claim requires “more convincing proof of innocence than

[a gateway claim]”). A stay cannot shield petitioner from the consideration of

diligence with respect to the reliability of his actual innocence claim, whether a

gateway or freestanding claim. See Schlup, 513 U.S. at 332 (“[C]ourt[s] may

consider how the timing of the submission and the likely credibility of the affiants

bear on the probable reliability of . . . evidence [of actual innocence].”); Herrera,

506 U.S. at 421-23 (considering “11th hour” affidavits produced ten years after

conviction in deciding merits of actual innocence claim).

      Petitioner also contends the potential application of the doctrine of laches

in state court and the ineffective assistance of post-trial counsel are other sources

                                          -19-
for good cause. However, if a state court determines petitioner is barred by the

doctrine of laches, the McQuiggin exception will still serve to alleviate concern

regarding timeliness of the federal petition. With respect to the possibility that a

laches determination could be a procedural bar as an adequate and independent

state ground for dismissal of the post-conviction application, this is a hurdle

petitioner would have to overcome whether or not a stay is granted. A Rhines

stay is only concerned with ensuring a federal petition remains timely filed while

a petitioner’s claims are exhausted in state court; it does not protect a federal

petition from the state’s possible “defense” of an adequate and independent state

ground. Likewise, petitioner’s concern that a laches determination may generate

factual findings regarding petitioner’s diligence to which the district court may

owe deference is irrelevant to the need for a stay. With or without a stay,

petitioner will still face the same burden to show a substantial actual innocence

claim, as discussed above. Assuming arguendo there are factual findings from the

state court regarding petitioner’s diligence, these will have the same effect in

federal court whether or not a stay is granted. Finally, even assuming ineffective

assistance of post-trial counsel could provide good cause in isolation, because

petitioner’s actual innocence claim is the gateway for consideration of these

otherwise untimely claims, the available McQuiggin exception to AEDPA’s

statute of limitations removes any need for a stay in this case.




                                         -20-
      Given that grounds exist for an equitable exception to the AEDPA statute

of limitations, petitioner cannot demonstrate the good cause necessary to support

a Rhines stay and abeyance of this action, and the district court did not abuse its

discretion in so holding. We therefore need not reach the issue of whether

petitioner’s actual innocence claim is itself a freestanding constitutional claim or

merely a gateway for otherwise time-barred constitutional claims. See

McQuiggin, 133 S. Ct. at 1931 (“We have not resolved whether a prisoner may be

entitled to habeas relief based on a freestanding claim of actual innocence.”);

Case, 731 F.3d at 1036 (same).

                                         III

      We AFFIRM the district court’s denial of the stay and its dismissal without

prejudice of petitioner’s habeas petition.




                                         -21-
Doe v. Jones, 12-6311

TYMKOVICH, J., dissenting in part and concurring in the judgment.

      I concur with the ultimate disposition but write separately for three reasons.

First, I would decline to extend Rhines v. Weber to petitions that make only

unexhausted claims, which is the case here. Second, I read the first factor of the

Rhines test to require a showing of good cause for failure to exhaust one’s claims

in state court rather than a showing of good cause for a stay. Third, even if

Rhines does apply to entirely unexhausted petitions, Doe is not entitled to a stay

because we do not recognize actual innocence as an independent ground for

habeas review.

      A. Rhines’ Applicability

      The Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), held that, in

limited circumstances, a federal court may stay and hold in abeyance a habeas

petition when the petitioner has exhausted some but not all of his potential

claims (i.e. has filed a “mixed petition”). Rhines thus abrogated the “total

exhaustion” rule the Court had adopted in Rose v. Lundy, 455 U.S. 509 (1982), a

case predating the habeas reform Congress effected in the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). In Rhines, the Supreme Court

expressed concern that, because of the interplay between AEDPA’s one-year

statute of limitations and the potential delays in both state and federal courts’

evaluations of pending petitions, a petitioner through no fault of his own could

find potentially meritorious claims time-barred. The Supreme Court solved this
problem by allowing district courts to accept the habeas petition and stay federal

court proceedings until after the petitioner has exhausted state court remedies.

      The majority extends Rhines to apply also to petitions that make only

unexhausted claims. I disagree with that conclusion because (1) I read Rhines to

restrict itself to mixed petitions, and (2) applying Rhines to entirely unexhausted

petitions is contrary to principles of comity, federalism, and finality.

      These conclusions flow from Rhines. There, the Supreme Court limited its

decision to the mixed nature of the petition at issue in that case. The Court did

not suggest in any way it was discarding its adherence to Rose v. Lundy for

entirely unexhausted petitions. In Lundy, the Court persuasively articulated its

rationale for enforcing a total exhaustion rule: to vindicate the state court’s

concurrent role in initially enforcing not only state but federal law as it applies to

prisoner petitions. Lundy, 455 U.S. at 518.

      Congress, through AEDPA, further protected those interests by codifying

Lundy’s total exhaustion rule. 28 U.S.C. § 2254(b)(1)(a) (“An application for a

writ of habeas corpus on behalf of a person in custody pursuant to the judgment

of a State court shall not be granted unless it appears that . . . the applicant has




                                          -2-
exhausted the remedies available in the courts of the state.”). 1 As the Rhines

Court explained,

             Congress enacted AEDPA against the backdrop of
             Lundy’s total exhaustion requirement. The tolling
             provision in § 2244(d)(2) balances the interests served
             by the exhaustion requirement and the limitation period
             by protecting a state prisoner’s ability later to apply for
             federal habeas relief while state remedies are being
             pursued. AEDPA thus encourages petitioners to seek
             relief from state courts in the first instance by tolling the
             1-year limitations period while a properly filed
             application for State post-conviction or other collateral
             review is pending. This scheme reinforces the
             importance of Lundy’s simple and clear instruction to
             potential litigants: before you bring any claims to
             federal court, be sure that you first have taken each one
             to state court.

544 U.S. at 276–77 (citations and internal quotation marks omitted).

      The Court also cautioned that federal court interference, even if the federal

court is merely staying the federal claim, can frustrate Congress’s attempt to

promote both comity and finality.

             Stay and abeyance, if employed too frequently, has the
             potential to undermine these twin purposes. Staying a
             federal habeas petition frustrates AEDPA’s objective of
             encouraging finality by allowing a petitioner to delay the
             resolution of the federal proceedings. It also
             undermines AEDPA’s goal of streamlining federal
             habeas proceedings by decreasing a petitioner’s


      1
        The statute does provide two exceptions to this rule: 1) if “there is an
absence of available State corrective process” or 2) if “circumstances exist that
render such process ineffective to protect the rights of the applicant.” 28 U.S.C.
§ 2254(b)(1)(b). Neither of those exceptions applies here.

                                          -3-
              incentive to exhaust all his claims in state court prior to
              filing his federal petition.

Id. at 277.

       These principles are still persuasive. Lundy encourages filing in state

court, and Rhines reaffirms that position, making clear that mixed petitions were

eligible for stays, but “only in limited circumstances.” Id. at 277. Extending

Rhines to unexhausted petitions undermines AEDPA’s goal of incentivizing

petitioners to press for relief in state court.

       Thus, where a petitioner presents an unexhausted petition in federal court,

I would hold that federal courts should abide by the direction given to us in

Lundy: we should “defer action” until the state court has had the opportunity to

perform its review function. Lundy, 455 U.S. at 518.

       The power of precedent is not the only reason for which we should decline

to extend Rhines. The Rhines Court articulated a clear policy rationale based on

the nature of mixed petitions—a petitioner was trapped between the “rock” of

choosing to present only exhausted claims in federal court and the “hard place” of

surrendering all exhausted and unexhausted claims to the risk that they would not

be adjudicated in federal court before the AEDPA statute of limitations ran. 2

       2
         In Rhines, the Court also expressed concern for the petitioner who relied
on the federal district court to determine if his claims had indeed been exhausted.
544 U.S. at 275. If the district court’s review took longer than a year, it would
have run out the clock, and the petitioner would not have the opportunity to return
to federal court after exhausting in state court. Id. That is not the case here. Doe
                                                                            (continued...)

                                            -4-
      A petitioner with only unexhausted claims does not have to make that

choice. In fact, only one option has been available: petitioners must proceed to

state court to exhaust their claims, and AEDPA does not authorize the federal

courts to take any action until then.

      The majority bases its conclusions on Pace v. DiGuglielmo, 544 U.S. 408

(2005). But that case does not state or imply that the Lundy rule should be

discarded. In fact, the logic of Lundy and Rhines teaches that the better analysis

is to dismiss unexhausted petitions without prejudice and wait for the state courts

to finish their work.

      The majority worries that, if a petitioner goes directly to state court and the

state court determines the state action is improperly filed for some reason, the

petitioner will forever lose an opportunity for federal review. I think that an

illusory risk. In the rare circumstances such a scenario might occur, a petitioner

can, for example, still rely on equitable tolling or the miscarriage of justice

exception. Pace, 544 U.S. at 418; see also McQuiggin v. Perkins, 133 S. Ct.

1924, 1931 (2013) (distinguishing the miscarriage of justice exception and

equitable tolling). At least in Doe’s case, the majority agrees, finding that Doe

does not need a stay because, if his claims are meritorious, McQuiggin’s

miscarriage of justice exception will open the door to federal court.


      2
          (...continued)
recognizes that all of his claims are unexhausted.

                                          -5-
      Alternatively, petitioners can challenge a procedural bar. The Supreme

Court has held that, if “the State’s procedural requirements for presenting [a

petitioner’s] federal claims [have] deprived the state courts of an opportunity to

address those claims in the first instance,” the federal courts should not allow that

state law procedural bar to prohibit federal review when the petitioner can show

both cause for the default as well as prejudice attributable to the alleged violation

of federal law. Coleman v. Thompson, 501 U.S. 722, 732 (1991); see also

Trevino v. Thaler, 133 S. Ct. 1911, 1917 (2013) (applying the same cause and

prejudice exception after the enactment of AEDPA). Given that the law provides

a petitioner in these circumstances an opportunity for federal review, no reason

exists to believe that the Court has abrogated the Lundy rule for entirely

unexhausted petitions.

      While the circuits are split, I believe Lundy is good law and applies here.

Compare Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“Once a

district court determines that a habeas petition contains only unexhausted claims,

it need not inquire further as to the petitioner’s intentions. Instead, it may simply

dismiss the habeas petition for failure to exhaust.”), with Heleva v. Brooks, 581

F.3d 187, 191 (3d Cir. 2009) (“[T]he Supreme Court has indicated that a

petitioner may file a ‘protective’ petition meriting a stay under Pace even where

only unexhausted claims are at issue.”).




                                           -6-
      In sum, I would affirm dismissal of Doe’s petition because I would decline

to extend Rhines to petitions making only unexhausted claims.

      B. Rhines Analysis

      Even if Rhines applied to unmixed petitions, I would decline to issue a stay

here, but I would do so for different reasons than the majority.

      I read the first factor of the Rhines test to require a different inquiry than

the majority conducts here. The majority has determined that Doe cannot show

good cause for a stay because a stay is not necessary to preserve Doe’s

opportunity to be heard in federal court. But I read Rhines to inquire whether

Doe has shown good cause for failure to exhaust his state court remedies, not

good cause for a stay.

      In Rhines, the Supreme Court expressly defined the first factor of its test as

“good cause for his failure to exhaust.” 544 U.S. at 277 (emphasis added); see

also id. (“Because granting a stay effectively excuses a petitioner’s failure to

present his claims first to the state courts, stay and abeyance is only appropriate

when the district court determines there was good cause for the petitioner’s

failure to exhaust his claims first in state court.”). The Court indicated that it so

limited the circumstances in which we should grant a stay to avoid frustrating

AEDPA’s purposes of promoting finality and encouraging petitioners to seek

relief from state courts. Id. at 276–77.




                                           -7-
       In Pace, the Court used slightly different language, writing, “[a]

petitioner’s reasonable confusion about whether a state filing would be timely

will ordinarily constitute ‘good cause’ for him to file in federal court. Rhines,

544 U.S. at 278 (‘[I]f the petitioner had good cause for his failure to exhaust

. . .’).” Pace, 544 U.S. at 416.

       But I do not read Pace to abrogate the Rhines test. Although Pace

discussed good cause for filing in federal court, the Pace Court’s inclusion of the

relevant quotation from Rhines clarifies any ambiguity. Further, because Pace

was published less than a month after Rhines, I see no reason to believe that, in

that short time, the Court changed its mind about the nature of this test.

Determining whether the petitioner has shown good cause for failing to exhaust

state court remedies before filing a habeas petition in federal court is still the first

step of a Rhines analysis. See Fairchild v. Workman, 579 F.3d 1134, 1153 (10th

Cir. 2009) (citing Rhines and Pace for the proposition that a petitioner “should be

permitted to demonstrate that he had good cause for failing to exhaust the

claim.”). 3

       3
        Although the majority is not alone in having interpreted the first factor of
the Rhines test to require good cause for a stay, the majority of circuits that have
taken up this issue, even post-Pace, have limited their inquiry to whether there
was good cause for failure to exhaust. Compare Heleva, 581 F.3d at 192 (reading
Pace to consider “‘good cause’ for a stay”) with Blake v. Baker, 745 F.3d 977,
981 (9th Cir. 2014) (interpreting both Rhines and Pace to require showings of
good cause for failure to exhaust); Elmore v. Ozmint, 661 F.3d 783, 847 (4th Cir.
2011) (applying “Rhines’s requirement of good cause for the failure to exhaust”);
                                                                            (continued...)

                                           -8-
      I therefore disagree with the majority’s assertion that, because Doe may use

McQuiggin’s actual innocence exception to return to federal court, he cannot

show good cause; the necessity of a stay has no bearing on whether Doe had good

cause for his failure to exhaust. Instead, I conclude that we cannot assess whether

Doe can satisfy Rhines’s good cause requirement without a remand.

      Such a remand is unnecessary here, however. Even if Rhines applies, I find

determinative the question that the majority has reserved: whether an actual

innocence claim is a freestanding basis for habeas relief.

      Doe has brought before us a total of five habeas claims. He all but

concedes that four of his five claims should have been filed within one year of the

discovery of their factual predicates in 2008—considerably more than a year

before he filed this action. See 28 § U.S.C. 2254(e)(2). Thus, he has requested a

stay to stop the clock on his one arguably timely claim: his actual innocence

claim, which was ostensibly filed within one year of the discovery of new

evidence in 2011. An actual innocence claim, however, is not a freestanding

basis for habeas relief.

      3
          (...continued)
Jalowiec v. Bradshaw, 657 F.3d 293, 305 (6th Cir. 2011) (holding that belatedly
disclosed Brady materials may constitute good cause for failure to exhaust);
Josselyn v. Dennehy, 475 F.3d 1, 5 (1st Cir. 2007) (holding that petitioner failed
to show good cause for failure to exhaust); Neville v. Dretke, 423 F.3d 474, 480
(5th Cir. 2005) (holding that the petitioner points to no good cause for failure to
exhaust); Rhines v. Weber, 409 F.3d 982, 983 (8th Cir. 2005) (remanding for
findings as to whether the petitioner “had good cause for failing to exhaust the
claim”).

                                         -9-
      Although the Supreme Court has “not resolved whether a prisoner may be

entitled to habeas relief based on a freestanding claim of actual innocence,”

McQuiggin, 133 S. Ct. at 1931, we have. Our cases definitively foreclose

independent actual innocence claims in this circuit. For example, in Stafford v.

Saffle, we identified that the Supreme Court has “strongly suggest[ed]” that an

actual innocence claim is not “by itself, an adequate basis for habeas relief.” 34

F.3d 1557, 1561 (10th Cir. 1994) (citing Herrera v. Collins, 506 U.S. 390, 400

(1993)). Then, to remove any doubt, we held in LaFevers v. Gibson that “an

assertion of actual innocence, although operating as a potential pathway for

reaching otherwise defaulted constitutional claims, does not, standing alone,

support the granting of the writ of habeas corpus.” 238 F.3d 1263, 1265 n.4 (10th

Cir. 2001); see also Sellers v. Ward, 135 F.3d 1333, 1339 (10th Cir. 1998)

(“[T]he claim of innocence is merely the means by which an otherwise barred

constitutional error affecting the fairness of the petitioner’s trial can be heard.”);

Clayton v. Gibson, 199 F.3d 1162, 1180 (10th Cir. 1999); Castro v. Oklahoma, 71

F.3d 1502, 1511 (10th Cir. 1995); Brecheen v. Reynolds, 41 F.3d 1343, 1357

(10th Cir. 1994).

      In addition to fidelity to our precedent, I would reaffirm the rule set forth

in LaFevers because, as the Supreme Court and this court have repeatedly

articulated, acknowledging a freestanding actual innocence claim clashes with the

purpose of the habeas doctrine. See Herrera, 506 U.S. at 400 (“[F]ederal habeas

                                          -10-
courts sit to ensure that individuals are not imprisoned in violation of the

Constitution―not to correct errors of fact.”).

      For these reasons, rather than the reasons the majority has articulated, I

would affirm the district court’s decision to dismiss Doe’s petition without

prejudice.




                                         -11-
