                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 03-1978EA
                                   _____________

Ledell Lee,                           *
                                      *
            Appellee,                 *
                                      * On Appeal from the United
      v.                              * States District Court
                                      * for the Eastern District
                                      * of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Correction,             *
                                      *
            Appellant.                *
                                 ___________

                              Submitted: November 17, 2003
                                 Filed: January 14, 2004 (Corrected 2/10/04)
                                  ___________

Before RILEY, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      In Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998), we held

              that a district court has no authority to hold a habeas
              petition containing unexhausted claims in abeyance absent
              truly exceptional circumstances, such as when state
              remedies are inadequate or fail to afford a full and fair
              adjudication of federal claims, or when exhaustion in state
              court would be futile.
See Victor v. Hopkins, 90 F.3d 276, 279-82 (8th Cir. 1996), cert. denied, 519
U.S. 1153 (1997). In the present case, the District Court1 instead of dismissing
outright a case in which one unexhausted claim was raised, held the petition in
abeyance pending renewed recourse to the state courts by petitioner. We must decide
whether the circumstances of this case are "truly exceptional," as that phrase is used
in Carmichael, so as to justify the District Court's action.

        Here, two important facts stand out. First, if the petition had been dismissed
outright, either with or without prejudice, and petitioner had filed a new habeas
petition in the federal district court after completing state-court proceedings, the new
petition would have been barred by the one-year statute of limitations contained in
28 U.S.C. § 2244(d)(1)(A). And second, the unexhausted claim involved in this case
was not raised by petitioner himself, either in his original pleading or later during the
course of the case in the District Court. Instead, it was raised by the District Court
on its own motion. We hold that the combination of these two circumstances is "truly
exceptional," and, therefore, that the District Court did not err in holding the petition
in abeyance.

                                           I.

       Ledell Lee was convicted and sentenced to death for the 1993 murder of Debra
Reese. His conviction and sentence were affirmed by the Arkansas Supreme Court
on direct review. Lee v. State, 327 Ark. 692, 942 S.W.2d 231(1997). Mr. Lee's
petition for state post-conviction relief ultimately was denied by the Arkansas
Supreme Court. Lee v. State, 343 Ark. 702, 38 S.W.3d 334 (2001). Mr. Lee then
filed a petition for writ of habeas corpus in the District Court alleging 19 claims for
relief. After reviewing the transcripts of the state post-conviction proceedings, the


      1
      The Hon. George Howard, Jr., United States District Judge for the Eastern and
Western Districts of Arkansas.

                                          -2-
District Court, on its own motion, raised the question whether Mr. Lee had been
deprived of his due-process rights (as well as his state-law right to qualified post-
conviction counsel) by the conduct of his appointed counsel2 during the post-
conviction proceedings in the state courts. The District Court, believing that relief
on this claim might still be available in the state courts, entered an order staying
Mr. Lee's petition for writ of habeas corpus and holding it in abeyance pending the
outcome of further proceedings in the state courts. (No one complains about the
District Court's raising this new claim on its own motion.)

        Under 28 U.S.C. § 2254(i), "ineffectiveness or incompetence of counsel during
Federal or State collateral post-conviction proceedings shall not be a ground for
relief" in federal habeas proceedings. We note, in addition, that a mere violation of
state law, including Ark. R. Crim. P. 37.5, which sets forth the qualifications of post-
conviction counsel in death cases, is not cognizable in federal habeas. On the other
hand, petitioner argues that he does have a federal claim in this situation. Citing
Hicks v. Oklahoma, 447 U.S. 343 (1980), petitioner argues that he has a liberty
interest, protected against deprivation without due process, in the specific provisions
of Ark. R. Crim. P. 37.5. We express no view at the present time on the merits of this
argument. The only issue before us now is the propriety of the District Court's choice
to stay the petition, rather than dismiss it.

      The District Court noted that Mr. Lee's "counsel may have been impaired to the
point of unavailability on one or more days of the Rule 37 hearing." The District
Court was also troubled by counsel's repeated requests for appointment of co-counsel
and the trial court's refusal to address counsel's argument that he was not qualified to
handle the case because of other obligations. In part, because of these "exceptional
or unusual circumstances," the District Court granted a stay of Mr. Lee's petition.



      2
          Petitioner is now represented by new counsel.

                                          -3-
      The transcripts of state post-conviction proceedings provide several examples
of behavior by Mr. Lee's counsel that are cause for concern. For example, in a
hearing on March 30, 1999, the following exchange took place between Mr. Lee's
counsel and the state trial judge who had certified that counsel was qualified under
Rule 37.

            Q (Mr. Lee's Counsel): And do you recall making certain
            statements to me regarding my qualifications?

            A (The Judge): Absolutely.

            Q: And what were those statements?

            A: Well, you've got it misconstrued, [counsel]. Your
            memory is faulty, probably because of the beer you were
            drinking that night or whatever substance you might take.

            ...

            A: But—Because in the car when I went to the car with
            you, you had an open beer in the car. You were driving
            around serving subpoenas that night. Now, what I said to
            you was—

            Q: Now—

            A: . . . You have no idea what, how to try a case, and
            you're not competent to try a case, and I still believe that.
            Now, you may waddle around in these post-conviction
            reliefs, but I don't think that you're competent to try a jury
            trial. I hold that belief.

             ...

            Q: You stated that I'm not qualified to handle a criminal
            case. Is that not true?

                                         -4-
             A: No. I said a jury trial. . . . And I really don't think,
             given your mental state and the way you move around, and
             the things you say and how disconnected you are that you
             could handle a criminal jury trial in front of a jury. Now,
             you may be able to handle post-conviction relief when
             you're not under that kind of pressure, and I believe that.

             Q: In light of that testimony, would you care to renege on
             the doc—, on your recommendations that you made?

             A: Well, in fact, I'm glad you asked that because I'm going
             to call [name omitted]. She recommended you, and I didn't
             know you'd just gotten out of rehab. If I had known that,
             I would not have put you on this case. I would not have
             done it.

             Q: Your Honor, this—

             A: It's true, and you know it.


(App. of Appellee at 114-15, 117-18). Later in the same hearing counsel for the State
of Arkansas made the following request:

             Your Honor, I don't do this lightly, but with regard to [Mr.
             Lee's counsel's] performance in Court today, I'm going to
             ask that the Court require him to submit to a drug test. I
             don't think that he's, he's not, he's just not with us. He's re-
             introduced the same items of evidence over and over again.
             He's asking incoherent questions. His speech is slurred.
             He stumbled in the Court Room. As a friend of the Court,
             and I think it's our obligation to this Court and to this
             Defendant that he have competent counsel here today, and
             I don't—That's just my request of the Court, Your Honor.




                                           -5-
Id. at 124. The record is also replete with requests by Mr. Lee's counsel for assistance
with the case given his other obligations.

                                           II.

       We turn now to the key legal issue in the case. Did "truly exceptional
circumstances" exist to support the District Court's choice of holding this petition on
its docket?

        Two aspects of this case persuade us that truly exceptional circumstances did
exist. First, the District Court raised the issue which it thought the state courts could
still consider on its own motion.3 This is now a "mixed" case, that is, one containing
both exhausted and unexhausted claims. But Mr. Lee did not file a mixed petition.
All of the claims alleged in his petition had been exhausted. The behavior of his post-
conviction counsel was raised by the District Court on its own motion, after
reviewing the transcript of the state post-conviction proceedings. In other words, the
fact that the case is a "mixed" case, normally subject to outright dismissal under
Carmichael and similar cases, is not Mr. Lee's fault, so to speak. He did not come
into court with an unexhausted claim. Second, if we were to reverse the grant of the


      3
        The District Court stated it would "retain jurisdiction of [Mr. Lee's] petition,
but [would] withhold resolution of the issues raised pending resolution of the state
court claims . . .." This Court has held that, where a mixed petition contains fully
exhausted federal claims and unexhausted state claims, which are not reviewable on
a petition for writ of habeas corpus, the district court should exercise jurisdiction over
the petition and hear the exhausted federal claims. See Hall v. State of Iowa, 705
F.2d 283, 287 (8th Cir. 1983). Although we do not decide if Mr. Lee's claim about
the conduct of post-conviction counsel is a state or federal claim, we note that if it
were characterized as solely a state-law claim there would be no unexhausted federal
claims in Mr. Lee's petition. It is arguable, therefore, that under Hall the District
Court could properly have exercised jurisdiction over the petition and, in its
discretion, stayed proceedings during the pendency of a new state case.

                                           -6-
stay, Mr. Lee would be barred from returning to federal court to refile his petition
because of the one-year statute of limitations imposed on habeas petitioners. See 28
U.S.C. § 2244.

       Generally, a state prisoner has one year 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" to file an application for a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1)(A). Although the statute provides for tolling of the statute of limitations
during the pendency of state post-conviction proceedings or other state-court
collateral review, the Supreme Court has held that there is no statutory basis for
tolling the statute of limitations during the pendency of a federal petition for writ of
habeas corpus. See Duncan v. Walker, 533 U.S. 167, 181 (2001). We think the
circumstance that a new petition would be barred by limitations is important. The
existing petition was filed within the one-year statutory period. We do not see why
petitioner should forfeit his federal habeas corpus remedy in the circumstances of this
case, which is exactly what would occur if this petition were dismissed outright.

       Our holding does not rest solely upon the ground that the statute of limitations
would prevent Mr. Lee from refiling his petition if the District Court had dismissed
it. In Akins v. Kenney, 341 F.3d 681 (8th Cir. 2003), the habeas petition contained
both exhausted and unexhausted claims. The District Court dismissed the petition.
Petitioner had not asked for any other form of disposition. Specifically, he had not
asked the District Court to stay the petition and hold it on its docket pending his
exhaustion of available state-court remedies. On appeal, petitioner argued that the
District Court had abused its discretion in not deciding, of its own accord, to stay the
petition and hold it in abeyance. We affirmed, holding that no abuse of discretion had
occurred. Id. at 686. In the present case, as we have said, a consideration going
beyond the running of the statute of limitations is present: that the unexhausted claim
came into the case as a result of the District Court's own action.



                                          -7-
                                            III.

       The dispositive portion of the District Court's order reads as follows:

              The case shall be returned to the [state] trial court for
              reconsideration of the claims raised at Petitioner's Rule 37
              hearing, in light of the issues raised concerning his
              counsel's qualifications and impairment . . ..

In our opinion, this provision is somewhat more specific than it needs to be. We do
not presume to say which court in the state system would be the appropriate forum,
still less to hold that, if there is such a court, an evidentiary hearing should be held.
We leave to petitioner's present appointed counsel, in the first instance, to determine
what form of action would be appropriate,4 and what relief should be requested.
Compare Franklin v. State, 251 Ark. 223, 471 S.W.2d 760 (1971) (discussing the
possible legal effects of counsel's incapacity or illness). It will be for the state courts,
of course, to decide the appropriate mode of proceedings, as well as what relief to
grant, if any. In the meantime, the petition will be stayed and will remain pending on
the docket of the District Court.5




       4
        In its supplemental reply brief, the state asserts that the state trial court, to
which the District Court's opinion refers, would have no jurisdiction. According to
this view, Mr. Lee would have to ask the Supreme Court of Arkansas to reinvest the
trial court with jurisdiction by way of a writ of error coram nobis. Supplemental
Reply Brief of Appellant 2. We express no view on this question of state procedural
law. It is not for us to decide.
       5
        We express our appreciation to petitioner's present appointed counsel, who is
fully competent in these matters, to say the least. We hope that she will continue to
represent petitioner in the state courts and in further federal habeas proceedings, if
there are any.

                                            -8-
The order of the District Court is affirmed, as modified.
                ______________________________




                                  -9-
