The opinion of the court was delivered by: Leon Jordan United States District Judge
Ronald L. Allen brings this pro se petition and supplemental petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his confinement under a 2003 state court judgment of conviction for rape of a child. [Docs. 1, 5]. Four motions are pending, including the respondent's combined motion to dismiss and motion for summary judgment. [Docs. 10, 17, 18]. For the reasons below, the Court will address only the motion to dismiss in this order. [Doc. 10].
The petitioner alleges three claims for relief: 1) that he received ineffective assistance of counsel; 2) that one Brian Rice "lied about everything;" and 3) that the prosecution represented that the petitioner gave the victim a sexually transmitted disease. The respondent's motion to dismiss involves only the ineffective-assistance claim, which he maintains should be dismissed on one of two somewhat contradictory procedural grounds-either procedural default or lack of exhaustion.*fn1 The lack-of-exhaustion issue alone will be discussed.
II. Respondent's Supporting Arguments
The respondent points out, correctly, that the petitioner has alleged a claim of ineffective assistance of counsel in his habeas corpus petition; that he presented such a claim in his pro se post-conviction petition; that the petition was dismissed as untimely; and that the petitioner did not appeal from this adverse ruling. The respondent maintains that, arguably, there is a state court remedy yet available the petitioner to challenge what would appear to be an improper dismissal of his pro se post-conviction filing.*fn2 The respondent indicates that, under Rule 4(a) of Tennessee Rules of Appellate Procedure, the state appellate court has the discretion to grant a waiver of the 30-day time-limit for filing a notice of appeal, as illustrated in Anderson v. State, 2003 WL 2002092 (Tenn. Crim. App. April 30, 2003) (unpublished).*fn3 He proposes that the circumstances in this case might persuade the state appellate court to exercise its discretion on behalf of the petitioner. One circumstance that might sway the appellate court to grant a waiver is the trial court's supposed error in calculating the filing deadline for the petitioner's post-conviction petition. A waiver might also be found justified because, under state law, a post-conviction petition filed during the pendency of a direct appeal, as was the petitioner's, is considered to be premature-not untimely.
As a precondition to habeas corpus relief, a petitioner must demonstrate that he has exhausted all available state court remedies, or that there is an absence of state corrective process, or that resort to those remedies would be futile. 28 U.S.C. § 2254(b)(1). If there is any opportunity to raise a claim by any available state process, a petitioner must do so to satisfy the exhaustion requirement. Preiser v. Rodriguez, 411 U.S. 475 (1973). A federal district court must dismiss a mixed habeas petition--one which contains both exhausted and unexhausted claims.*fn4 Pliler v. Ford, 542 U. S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). However, dismissing a mixed petition filed close to the expiration of the one-year statute of limitations in § 2244(d)(1) might cause a petitioner to lose his opportunity for habeas corpus relief forever because the limitations statute could prevent him from refiling his federal petition once the claims have been exhausted.*fn5 This situation also arises when a court determines, only after the lapse of the limitations statute, that a § 2254 petition contains unexhausted claims along with exhausted ones.
The Sixth Circuit, recognizing this dilemma, has instructed district courts to use a "stay and abate" procedure, whereby the exhausted claims are stayed; the unexhausted ones are dismissed without prejudice; the petitioner is given a brief interval (typically, 30 days) from the dismissal to return to state court with those claims; and he is also afforded a similarly brief interval (again, normally 30 days) to refile his habeas corpus petition after the state court decides those claims. Griffin v. Rogers, 399 F.3d 626, 628 (6th Cir. 2005) (citing Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002)).
The Supreme Court also has endorsed a limited stay-and-abate procedure in such a situation. Under Rhines v. Weber, 544 U.S. 269 (2005), a post-Palmer case, a federal court is authorized to stay and abate a mixed habeas corpus petition, but only if the petitioner shows good cause for failing to exhaust his claim in the state courts. Id., at 277 ("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.") However, even if good cause is shown, a stay should not issue where a petitioner's claims are meritless and he has intentionally engaged in dilatory tactics. Ibid.
There are two problems in applying to the petitioner's case the stay-and-abate procedure described in Palmer with the Rhines overlay. First of all, though the petitioner's failure to appeal the dismissal of his post-conviction petition appears to be nothing more than a garden-variety type of procedural default,*fn6 there is also the matter of whether an available state court remedy truly exists. The habeas corpus statute provides that a petitioner "shall not be deemed to have exhausted the remedies available in the court of the State ... if he has the right under the law of the State to raise, by any available procedure, the question presented."
28 U.S.C. § 2254(b)(3). This petitioner has no right to raise [or, in this case, to appeal] his claim of ineffective assistance of counsel. Instead, under Tenn. R. App. P. 4(a), the higher state court has the discretion to waive timely notice of appeal and to allow the claim to proceed.
Also, while the state appellate rule of procedure provides a possible remedy for a petitioner whose notice of appeal has been filed late, the petitioner here, unlike the petitioner in Anderson whose notice of appeal was some twelve days late, has not submitted any notice of appeal from the post-conviction court's dismissal order, much less a belated one. Moreover, in his post-conviction pleading, the petitioner attributed any failure to appeal [during direct review] to his own misgiving about the fairness of the judicial system. [Doc. 1, Attachment, Petition for Relief from Sentence or Conviction at p. 4, ¶ 13(d) ( "because i know it's a waste of time to get courts to investagate [sic] they own courts"). It is unlikely that this response bodes well for obtaining a discretionary waiver of a yet-to-be-filed notice of appeal.
The second problem is that the petitioner himself has not invoked the stay-and-abate procedure. Instead, it is the respondent who has interposed the issue of a stay. And, it is noteworthy that, even after the respondent advanced the ...