ORDER GRANTING MOTION TO STAY AND ABEY FEDERAL HABEAS PETITION Docket No. 19
JOHN D. ROBERTS, Magistrate Judge.
On June 25, 2013, Petitioner Jimmy Lampley (Lampley) filed a motion to stay and abey his mixed federal habeas petition. Docket 19. Respondent Joseph Schmidt (Schmidt) filed a response in opposition to the motion to stay and abey at Docket 22. Lampley filed his reply at Docket 26. The Motion to Stay and Abey at Docket 19 is HEREBY GRANTED.
II. Relevant Procedural History
Lampley was convicted after a jury trial of two counts of contempt of court and two counts of harassment. Docket 20-1. Lampley was represented at trial by OPA attorney Krista Maciolek. Id. The judge ordered the sentence in this case to run concurrently with Mr. Lampley's other cases pending sentencing. Lampley is currently on parole. Docket 20 at 2.
Lampley, represented by OPA attorney Michael Smith, appealed his conviction to the Alaska Superior Court. Lampley argued: (1) he and Maciolek had a conflict amounting to ineffective assistance of counsel; (2) the trial judge should have held a hearing on the matter and his rulings were inconsistent with the prior judge assigned to the case; and (3) the district court failed to follow the law of the case by allowing Maciolek to represent Lampley. Docket 22-3. The Alaska Superior Court affirmed Lampley's conviction on December 14, 2007. Docket 22-4.
On May 19, 2008, Lampley filed a petition with the Alaska Court of Appeals. Docket 22-5. The petition for hearing was denied. Id. At that time, Lampley was represented by Michael Smith. Mr. Smith did not file a petition for hearing in front of the Alaska Supreme Court.
While Lampley's appeal was pending, he filed a motion for post-conviction relief in Alaska District Court. Docket 22-6. Lampley argued that his right to counsel was violated when his attorney caused a breakdown in the attorney-client relationship, and that he was denied counsel because of ineffective representation and because his attorney prejudiced the jury during trial. Docket 22-6. Smith subsequently filed an amended application for post-conviction relief Docket 22-7. The amended PCR alleged: (1) trial counsel failed to investigate allegations of conflict between OPA and Lampley; (2) trial counsel failed to investigate potential witnesses who would cause a conflict between OPA and Lampley; (3) trial counsel caused a conflict by attempting to withdraw from Lampley's case without first consulting or informing Lampley; (4) trail counsel caused irreparable dissolution of the attorney-client conflict by failing to inform Lampley of her intention to withdraw from his case; (5) trial counsel caused irreparable dissolution of the attorney-client conflict by failing to inform and/or explain to Lampley counsel's reason(s) to withdraw from his case; and (6) trial counsel's opening statement wavered in counsel's belief in Lampley's innocense. Docket 22-7. The Alaska District Court denied Lampley's PCR and the Alaska Superior Court later affirmed. Id.
On November 29, 2012, Lampley filed his pro se petition for writ of habeas corpus. Docket 1. Lampley alleged denial of effective assistance of counsel and denial of right of appeal. Even though it appears based upon State court records that the one-year statute of limitations period has run, the U.S. District Court referred the matter to the magistrate judge. Docket 9. Counsel was subsequently appointed and the case was set to proceed to determine whether equitable tolling applies. Id.
On June 24, 2013, Lampley filed a second application for post-conviction relief. Docket 20-1. In Alaska, a second application for post-conviction relief is commonly referred to as Grinols claim. In his Grinols claim, Lampley again alleged ineffective assistance of counsel. When asked to list his personal knowledge of facts concerning his ineffective assistance claim, Lampley stated, "although requested verbally-Counsel failed to exhaust state levels (sic) of remedy among other things." Docket 20-1 at 5.
Since Lampley's Grinols claim is still pending in State court, his petition for federal habeas relief is mixed. Lampley has exhausted his Sixth and Fourteenth Amendment claim as its relates to his trial attorney, Krista Maciolek. However, Lampley did not exhaust his merit appeal claims because his appellate attorney, Mr. Smith, failed to file a petition to the Alaska Supreme Court. Lampley has a claim that he was wrongfully deprived of effective appellate counsel on his merits appeal since Mr. Smith failed to preserve his own ineffective assistance of counsel claim at the appellate level. Lampley's federal habeas petition is therefore mixed.
At issue is whether this court should stay and abey Lampley's mixed federal habeas petition so that he may exhaust his ineffective assistance of counsel claim as it relates to Mr. Smith.
28 U.S.C. § 2254(b) states, "An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state..." However, the Section 2254(i) clearly states that "[t]he ineffectiveness or incompetence of counsel during Federal or State collateral ...