United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
Frank Joseph Schwindler seeks to have his state-court
conviction for, among other crimes, child molestation,
vacated. See doc. 1. Respondent Warden Holt argues
Schwindler's petition should be dismissed because he has
failed to exhaust his available state remedies. Doc. 20. The
petition was transferred, upon the parties' consent, from
this Court to the United States District Court for the
Northern District of Georgia so that it could be considered
alongside petitioner's 42 U.S.C. § 1983 action
concerning documents purportedly relevant to the petition.
Doc. 14. That case has since been resolved, and petitioner
voluntarily dismissed it with prejudice. See doc. 42
at 3 n. 2 (“A review of the docket in Schwindler v.
Dozier, No. 1:11-cv-1276-TCB (N.D.Ga. May 18, 2017),
[petitioner's § 1983 action] shows that the action
has been voluntarily dismissed with prejudice.”). In
the interest of judicial economy and pursuant to the
long-standing practice of the United States District Courts
in Georgia, the Northern District transferred the petition
back to this Court, over petitioner's objection.
See doc. 45 (Order adopting Magistrate Judge's
transfer recommendation after de novo review). Since
petitioner responded in opposition to respondent's
dismissal motion while the case was pending before the
Northern District, that motion is now ripe for adjudication.
See doc. 37.
before bringing a § 2254 habeas action in federal court,
the petitioner must exhaust all state court remedies that are
available for challenging his conviction, either on direct
appeal or in a state post-conviction motion. 28 U.S.C. §
2254(b)(1)(A), (c). However, the exhaustion requirement is
not jurisdictional and may be excused ‘if the state has
unreasonably or without explanation failed to address
petitions for relief.'” Keinz v. Crosby,
2006 WL 408686 at * 2 (11th Cir. Feb. 23, 2006) (quoting
Hollis v. Davis, 941 F.2d 1471, 1475 (11th Cir.
1991)). Petitioner contends that he should be excused from
the exhaustion requirement because of the extraordinary delay
(14 years) in the state courts' resolution of his state
habeas petition. See doc. 37 at 98 (arguing
“[i]nexcusable or inordinate delay by the state in
processing claims for relief may render [a] state remedy
effectively unavailable . . . .” (citing Lee v.
Strickman, 357 F.3d 338 (3d Cir. 2004)). Since
petitioner responded the state habeas court has denied his
petition, and he is currently pursuing an appeal of that
denial before the Georgia Supreme Court. See doc. 40
at 6-58 (state habeas court Order denying petition); doc. 45
at 2 n. 1 (noting that petitioner's application for
appellate review was pending before the Georgia Supreme
Court); see also Schwindler v. Holt, No. S18H0077,
record.php?caseNumber=S18H0077 (last visited March 27, 2018).
does not dispute that his state habeas petition was decided,
nor that his appeal is being considered by the Georgia
Supreme Court. See doc. 44 at 7. He nevertheless
contends that “the process by which [state habeas]
relief was denied is still . . . inadequate . . . .”
Id. The rationale for requiring state prisoners to
exhaust their state remedies before pursuing federal habeas
relief is that it “reduces friction between the state
and federal court systems by avoiding the unseemliness of a
federal district court's overruling a state-court
conviction without the state courts having had an opportunity
to correct the constitutional violation in the first
instance.” Woodford v. Ngo, 548 U.S. 81, 92
(2006) (quotes, alterations, and cite omitted). That
rationale requires that a state prisoner
“properly” present his claims “through one
complete round of the State's established appellate
review process.” Id. (quotes and cite
concedes that he has not presented his objections
“through one complete round” of Georgia's
available appellate review process. He also identifies no
fact suggesting that any of the procedural defects he
contends interfered with his presentation to the lower court
will interfere with the Georgia Supreme Court's review.
See generally doc. 44. The Court, therefore, sees no
reason to derail the established process for appellate review
by the Georgia Supreme Court.
when a petitioner has failed to exhaust state remedies, the
district court should dismiss the petition without prejudice
to allow exhaustion.” Reedman v. Thomas, 305
Fed.Appx. 544, 546 (11th Cir. 2008). However, the Court has
discretion to stay and hold the case in abeyance pending the
exhaustion of state remedies where the petition presents a
“mix” of exhausted and unexhausted claims.
See Rhines v. Weber, 544 U.S. 269, 277 (2005)
(“[I]t likely would be an abuse of discretion for a
district court to deny a stay and to dismiss a mixed petition
if the petitioner had good cause for his failure to exhaust,
his unexhausted claims are potentially meritorious, and there
is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.”). Respondent concedes
that the petition presents both exhausted and unexhausted
claims and does not contend that petitioner has been
dilatory. See, e.g., doc. 20 at 7 (noting
“[i]n his state habeas corpus petition, Petitioner is
currently pursuing many of the same claims he has
raised in this Court.” (emphasis added)); id.
at 8 (noting that the “vast majority” of issues
presented in state petition overlap with grounds presented in
applying Rhines, neither the Supreme Court nor the
Eleventh Circuit have specifically defined “good
cause.” See Dean v. Williams, 2016 WL 6871257
at * 7 (S.D. Ga. Nov. 21, 2016). Other courts within the
Eleventh Circuit have taken a liberal view of “good
cause, ” finding the requirement met where the failure
to exhaust was not attributable to the petitioner.
Id. Here, petitioner's state habeas claim
remained pending for more than a decade. Doc. 37 at 3.
Petitioner (not unreasonably) attests that the glacial pace
“render[ed] such process ineffective to protect [his]
rights.” 28 U.S.C. § 2254(b)(1)(B)(ii); doc. 37 at
6-8. His state habeas petition was only decided after he
filed this petition in federal court. See
doc. 39 at 2. Although that decision eliminated the practical
impediments to the protection of his rights through the state
system, the Court finds that the delay constituted good cause
for his seeking federal review of his unexhausted claims.
constituting good cause for his failure to exhaust his state
remedies, however, there appears to be no further obstacle to
his exhausting the state process. Whether to dismiss this
case or stay it, therefore, turns on whether his unexhausted
claims are meritless. See Rhines, 544 U.S. at
277-78; see also Thompson v. Sec'y for Dep't of
Corr., 425 F.3d 1364, 1365-66 (11th Cir. 2005). To
determine whether the unexhausted claims have potential
merit, the Court accepts the allegations of the petition as
true and considers whether they state a colorable claim for
relief. Dean, 2016 WL 6871257 at * 7 (citing
Cueto v. McNeil, 2010 WL 1258065 at * 16-17 (S.D.
Fla. Mar. 12, 2010) (to determine “whether
Petitioner's unexhausted claims are ‘potentially
meritorious, ' a court does not weigh or even consider
the evidence in the case, ” but “simply accepts
the Petitioner's allegations as true, ” and
evaluates whether the facts would warrant that the petition
be granted, and collecting cases)). Here, respondent does not
challenge that petitioner's allegations, if true, would
entitle him to habeas relief. See doc. 39 at 4,
¶ 6 (requesting, in the alternative, that petition be
held in abeyance).
the Court should DENY respondent's
motion to dismiss, and GRANT his request, in
the alternative, that this action be STAYED
and HELD IN ABEYANCE while petitioner
exhausts his state remedies. Within thirty days of the
conclusion of the state court proceedings, petitioner must
file an Amended Petition asserting those grounds for relief
he wishes to pursue, if any. Failure to submit an Amended
Petition within that period may result in a recommendation of
Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3.
Within 14 days of service, any party may file written
objections to this R&R with the Court and serve a copy on
all parties. The document should be captioned
“Objections to Magistrate Judge's Report and
Recommendations.” Any request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).