Opinion
CIVIL ACTION NO. 01-11919-GAO
January 30, 2003.
ORDER
It is not uncommon in cases brought by prisoner litigants for there to be significant delays between the mailing and the receipt of documents, both those sent by the prisoner to the Court and those sent by the Court to the prisoner. These difficulties facing prisoners who try to make their filings in a timely fashion have led to the adoption of the prison mailbox rule. See Donovan v. Maine, 276 F.3d 87, 90 (1st Cir. 2002) (under prison mailbox rule, date of filing is the day on which the prisoner deposited his filing into the institution's internal mail system). In this case, this problem has resulted in several instances where papers crossed in the mail, with unfortunate consequences for the petitioner.
In August 2002, a magistrate judge recommended that the respondent's motion to dismiss be granted because the petitioner's habeas petition contained unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding that a federal court cannot adjudicate a habeas petition that contains both exhausted and unexhausted claims). As usual, the report and recommendation advised the petitioner of his right to object to the proposed disposition. On September 4, 2002, the Court received a request from Springer that his time to object be extended through September 2. The paper itself indicated that it had been executed on August 23, 2002. The magistrate judge promptly granted the requested extension. When no objections had been received by September 10, this Court reviewed the report, accepted the magistrate judge's recommendation, and ordered the case to be dismissed.
On the same day that the dismissal order was entered, the clerk's office received the petitioner's objections to the report and recommendation. Although the filing was received by the Court on September 10, the document itself indicated that it was mailed on August 31, within the permitted time (as extended) for objections.
Since the objections were timely, this Court reviewed the substance of the arguments advanced. In effect, the Court reconsidered its order dismissing the petition. However, Springer was not able to dissuade the Court from the view that the magistrate judge's recommendation was correct, and on September 27, the Court entered an order that the previously entered order of dismissal should stand.
In the meantime, the petitioner apparently received the Court's September 10 order dismissing his case. On September 20, he mailed a timely motion to reconsider to which he attached a photocopy of his objections to the magistrate judge's recommendation. See Fed.R.Civ.P. 59(e) (motions to amend judgment must be filed within 10 days after entry of judgment). The Court received the motion on September 27. Because the Court had already considered the merits of Springer's objections, the motion was deemed moot by a margin order entered October 1.
However, before the petitioner had received notice of the Court's rulings of September 27 (rejecting the petitioner's objections to the report and recommendation and permitting the previously ordered dismissal order to stand) and October 1 (deeming the separate motion for reconsideration moot, because reconsideration had already been given), he sent the Court a motion to stay his habeas petition pending the outcome of his efforts to exhaust his unexhausted claims in state court. The petitioner apparently mailed the motion to stay on October 1, but the motion was not received by the Court until October 24.
Several recent decisions by the First Circuit advise that the proper way to treat habeas petitions presenting both exhausted and unexhausted claims is to stay the matter while the petitioner presents the unexhausted claims to the state court. See Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 79 (1st Cir. 2002); Delaney v. Matesanz, 264 F.3d 7, 14 n. 5 (1st Cir. 2001); Neverson v. Bissonnette, 261 F.3d 120, 126 n. 3 (1st Cir. 2001). The First Circuit has explained that Congress's enactment of a one-year statute of limitations on habeas petitions "has rendered outright dismissal perilous to some litigants, because petitioners . . . may find themselves time-barred when they attempt to resubmit their exhausted claims to the district court." Nowaczyk, 299 F.3d at 79 (quoting Anthony v. Cambra, 236 F.3d 568, 573 (9th Cir. 2000)). "Indeed, there is a growing consensus that a stay is required when dismissal could jeopardize the petitioner's ability to obtain federal review." Nowaczyk, 299 F.3d at 79 (emphasis in original).
Accordingly, to ensure that the petitioner does not lose his ability to bring his claims here in the future, the Court hereby VACATES the judgment of dismissal previously ordered. The motion to stay is GRANTED and this case is now STAYED pending further order.
Not later than June 1, 2003, the petitioner shall file a written report on the status before the state courts of his heretofore unexhausted claims. If the claims are finally disposed of by the state courts before that date, the petitioner shall notify this Court of such disposition within twenty-eight days of the date such final disposition is entered.
It is SO ORDERED.