                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-2990
                                   ___________

Charles Russell Rhines,             *
                                    *
       Petitioner - Appellee,       *
                                    * Appeal from the United States
       v.                           * District Court for the
                                    * District of South Dakota.
Douglas Weber, Warden, South Dakota *
State Penitentiary,                 *    [TO BE PUBLISHED]
                                    *
       Respondent - Appellant.      *
                               ___________

                             Submitted: May 10, 2005
                                Filed: June 6, 2005
                                 ___________

Before LOKEN, Chief Judge, BRIGHT and MURPHY, Circuit Judges.
                              ___________


PER CURIAM.

       South Dakota inmate Charles Russell Rhines petitioned for a federal writ of
habeas corpus. The district court determined that the “mixed” petition included eight
unexhausted claims and that non-futile state court remedies may be available. To
avoid federal claims becoming time-barred while Rhines exhausted his state court
remedies, the court stayed all claims pending exhaustion provided Rhines commenced
state court exhaustion proceedings within sixty days and returned to federal court
within sixty days of completing exhaustion. Respondent appealed, and we reversed,
concluding that our decision in Akins v. Kenney, 341 F.3d 681 (8th Cir. 2003),
“precludes the district court from staying Rhines’s exhausted claims while he seeks
state post-conviction relief on other claims that may be unexhausted.” Rhines v.
Weber, 346 F.3d 799, 800 (8th Cir. 2003). The Supreme Court granted Rhines’s
petition for a writ of certiorari to resolve a conflict in the circuits. The Court has
vacated our judgment and remanded the case for further consideration in light of its
opinion in Rhines v. Weber, 125 S. Ct. 1528 (2005). For the following reasons, we
remand to the district court.

       In Rhines, the Court held that the stay and abeyance procedure adopted by the
district court was within the court’s authority but should be available “only in limited
circumstances.” 125 S. Ct. at 1535. The Court remanded, instructing us “to
determine, consistent with this opinion, whether the District Court’s grant of a stay
in this case constituted an abuse discretion.” Id. at 1535-36. The Court’s opinion
provided the following guidance:

      [S]tay 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. Moreover, even if a petitioner had good
      cause for that failure, the district court would abuse its discretion if it
      were to grant him a stay when his unexhausted claims are plainly
      meritless.

                                  *   *    *    *   *

             Even where stay and abeyance is appropriate . . . [a] mixed
      petition should not be stayed indefinitely. . . . Thus, district courts
      should place reasonable time limits on a petitioner’s trip to state court
      and back. . . . And if a petitioner engages in abusive litigation tactics or
      intentional delay, the district court should not grant him a stay at all.

Id. at 1535.




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       In this case, the district court granted a stay without the benefit of this
controlling Supreme Court guidance. Thus, the court did not (i) analyze each
unexhausted claim to determine whether Rhines had good cause for failing to exhaust
the claim and whether it is potentially meritorious, and (ii) consider whether Rhines
has engaged in “abusive litigation tactics or intentional delay.” In addition, the
district court gave Rhines sixty days to commence state court proceedings and sixty
days to return to federal court after completing exhaustion, whereas the Supreme
Court in discussing this issue quoted from a Second Circuit opinion noting that an
appropriate interval is “normally 30 days.” 125 S. Ct. at 1535, quoting Zarvela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001).

       In these circumstances, we conclude that we should not review the stay order
for abuse of discretion until the district court has considered these issues in the first
instance. Accordingly, the district court’s order of July 3, 2002, is vacated and the
case is remanded for further consideration in light of the Supreme Court’s decision
in Rhines v. Weber, 125 S. Ct. 1528 (2005).
                       ______________________________




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