Beers v. State of New Hampshire

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. 	Civil No. 15-cv-517-PB
Warden, New Hampshire State Prison
REPORT AND RECOMMENDATION ON THE STAY MOTIONS
Timothy Beers has petitioned this court for a writ of
habeas corpus under 28 U.S.C. § 2254, challenging his July 2013
conviction on four counts of pattern aggravated felonious sexual
assault, for which he is serving a ten- to thirty-year sentence.
Before this court are Beers’s motion to lift the stay (Doc. No.
19) in this action, and Beers’s later-filed motion to continue
the stay in this action (Doc. No. 22).
Background
Beers initiated this action by filing a place-holder
petition (Doc. No. 5), entitled, “Motion for Stopping My AEDPA
Clock,” to stop the statute of limitations from running. 	That
petition did not list any claims for relief.
This court directed Beers to file an amended petition
listing all of his claims, then granted Beers’s motion to stay
this action before Beers listed any of his claims, so that Beers
could litigate a pending state habeas petition. 	See Oct. 13,
2016 Order. 	The Superior Court denied the state habeas petition
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in September 2017, and in November 2017, the New Hampshire
Supreme Court declined to accept Beers’s appeal of that order.
See Beers v. Zenk, No. 2017-0587 (N.H. Nov. 27, 2017) (Doc. No.
20-4, at 2).
Beers next filed a motion to lift the stay (Doc. No. 19)
here, along with an amended § 2254 petition, Doc. No. 20,
listing, for the first time, all of the claims he is asserting
in this case. 	The court, in the August 14, 2018 Order (Doc. No.
21), took the motion to lift the stay under advisement, upon
finding that Beers’s amended petition was a “mixed petition,”
including both exhausted claims (numbered by the court as Claims
2, 4, 5, and 6) and unexhausted claims (numbered as Claims 1 and
3).1 	The court in that Order (Doc. No. 21) specifically directed
1In its August 14, 2018 Order (Doc. No. 21), the court
identified (unexhausted) Claims 1 and 3 as follows:
1. 	Beers’s conviction was obtained in violation of his
Fourteenth Amendment right to due process in that, with
regard to the alleged false trial testimony of a
prosecution witness in the second trial:
a. 	The prosecutor knowingly allowed the witness to
perjure himself; and
b. 	The trial judge did not sua sponte stop the
witness from perjuring himself.
2. 	. . . .
3. 	Beers’s conviction was obtained in violation of his
Sixth Amendment right to a fair trial and an impartial
jury, in that the court clerk added the phrase, “He did
commit,” when reading the charges against Beers to the
impaneled jury, which had the effect of biasing the jury
against Beers.
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Beers to choose whether to forego Claims 1 and 3; or to move to
continue the stay, giving Beers an opportunity to show that
there was good cause for his failure to exhaust state remedies
on Claims 1 and 3 previously. 	Beers filed a bare-bones motion
to continue the stay (Doc. No. 22) in response to the August 14,
2018 Order (Doc. No. 21) which does not attempt to explain why
he has failed, to date, to exhaust Claims 1 and 3.
Discussion
I. 	Stay Motions (Doc. Nos. 19, 22)
For reasons stated in the August 14, 2018 Order (Doc. No.
21), Beers’s Amended Petition (Doc. No. 20), which is the
operative petition in this case, is a “mixed” § 2254 petition,
as it includes both exhausted and unexhausted claims. 	See
Rhines v. Weber, 544 U.S. 269, 275 (2005). 	A federal district
court cannot grant relief on any claims in such a petition, and
such petitions may be dismissed without prejudice. 	See id. at
275. 	Alternatively, if “there was good cause for the
petitioner’s failure to exhaust his claims first in state
court,” the court has discretion to stay the petition, while the
petitioner returns to state court to exhaust his state remedies
on the unexhausted claims. 	Id. at 277. 	It would likely be an
abuse of discretion not to stay a “mixed” petition if: the
unexhausted claims are “potentially meritorious,” the petitioner
has not engaged in intentionally dilatory tactics, and there is
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good cause for the inmate’s failure to exhaust his claims before
he filed his § 2254 petition. 	Id. at 277-78. 	“In such a case,
the petitioner’s interest in obtaining federal review of his
claims outweighs the competing interests in finality and speedy
resolution of federal petitions.” 	Id. at 278.
This court’s August 14, 2018 Order (Doc. No. 21) directed
Beers, if he did not intend to forego Claims 1 and 3, to file a
motion to continue the stay, showing good cause for his prior
failure to exhaust state remedies on Claims 1 and 3. 	Beers’s
motion to continue the stay does not state any reasons why the
stay should continue. 	Beers’s motion (Doc. No. 22) offers no
justification at all for Beers’s failure to exhaust Claims 1 and
3 while this action was stayed initially in 2016 upon Beers’s
motion, see Doc. No. 10, while Beers, through post-conviction
counsel in the state courts, litigated a state habeas petition.
Beers has not argued that any of the exceptions to the
exhaustion requirement apply as to Claims 1 and 3, see 28 U.S.C.
§§ 2254(b), (c). 	Nothing before this court suggests any grounds
for finding good cause for Beers’s failure to exhaust Claims 1
and 3 previously. 	Accordingly, the district judge should deny
the motion to continue the stay (Doc. No. 22) and grant the
motion to lift the stay (Doc. No. 19), because Beers has not
demonstrated good cause to continue it.
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II. 	Beers’s Options
At this point, Beers has two choices. 	He can either: (1)
forego Claims 1 and 3 to allow the remaining claims in the
petition to proceed, or (2) suffer the dismissal of his entire
petition, including his exhausted claims, effectively losing the
chance for this court to consider the merits of any claims.
If Beers chooses the first alternative, he must file a
motion to amend the petition to drop Claims 1 and 3 by the
deadline set by the court. 	In choosing the option of foregoing
Claims 1 and 3, he will risk losing the opportunity to litigate
those claims both in this case and in any successive federal
habeas petition challenging the same conviction, due to the
restriction on successive petitions in 28 U.S.C. § 2244(b).
If Beers declines to move to drop Claims 1 and 3, this
court may dismiss the entire petition, without issuing any
ruling on the merits of any claim in the petition. 	Although
such a dismissal would be without prejudice, Beers would likely
confront a formidable statute of limitations problem under 28
U.S.C. § 2244(d)(1), if he were to file a new federal petition
challenging the same conviction.
Conclusion
For the foregoing reasons, the magistrate judge recommends
that the district judge approve this Report and Recommendation
and issue the following order:
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1. 	The stay in this action is lifted. 	The motion to
lift the stay (Doc. No. 19) is granted, and the motion to
continue the stay (Doc. No. 22) is denied.
2. 	On or before thirty days from the date of the
Order approving the “Report and Recommendation on the Stay
Motions,” Beers may file a motion to drop Claims 1 and 3
from this case, recognizing that in doing so, Beers will
likely lose an opportunity to seek relief on those claims
here and in any “successive” federal habeas petition, under
28 U.S.C. § 2244(b).
3. 	If Beers does not file a motion to forego Claims
1 and 3 as directed, the entire case may be dismissed
without prejudice.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
September 13, 2018
cc: 	Timothy Beers, pro se
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