United States District Court, D. Nebraska
GAMAR G. CHUOL, Petitioner,
STATE OF NEBRASKA, Respondent.
MEMORANDUM AND ORDER
JOSEPH F. BATAILLON JUDGE
This matter is before the court on preliminary review of Petitioner Gamar Chuol’s (“Chuol” or “Petitioner”) Amended Petition for Writ of Habeas Corpus (Filing No. 6-1). Also pending in this case are Chuol’s Motions to Stay (Filing No. 7) and to Amend (Filing No. 8). For the reasons that follow, the court will find Chuol’s claims are potentially cognizable in federal court. In addition, the court will find Chuol is not entitled to a stay and abeyance of this case at this time.
I. PRELIMINARY REVIEW
The purpose of this review is to determine whether Chuol’s claims, when liberally construed, are potentially cognizable in federal court. Condensed and summarized for clarity, Chuol’s claims are:
Claim One: The trial judge failed to properly advise Chuol of his right against compelled self-incrimination.
Claim Two: Chuol received the ineffective assistance of counsel because his lawyer failed to object when the trial judge did not properly advise him of his right against compelled self-incrimination.
Claim Three: Chuol received the ineffective assistance of counsel because his appeal lawyer “[f]ailed to bring up the issues that stop[ped] the defendant from going to trial and only brought up excessive sentence as a[n] issue on direct appeal.”
The court determines that these claims, when liberally construed, are potentially cognizable in federal court. However, the court cautions Chuol that no determination has been made regarding the merits of these claims or any defenses to them or whether there are procedural bars that will prevent him from obtaining the relief sought.
II. MOTION TO STAY
Chuol filed a motion seeking to stay this case so that he may return to state court in order to exhaust his claims. Chuol set forth in his motion that he did not petition the Nebraska Supreme Court for further review of his post-conviction claims because he was unaware of the habeas exhaustion requirements. (Filing No. 7 at CM/ECF p. 1.)
A stay and abeyance of a federal habeas corpus petition is only appropriate in “limited circumstances.” Rhines v. Weber, 544 U.S. 269, 277 (2005). A court may order a stay and abeyance only when there is good cause for the petitioner’s failure to exhaust his claims in state court, the claims are not “plainly meritless, ” and the petitioner has not “engaged in intentionally dilatory litigation tactics.” Id. at 277-278.
Here, Chuol argues there are claims he failed to present in a petition for further review to the Nebraska Supreme Court following his post-conviction action. However, under Nebraska law, Chuol may not now return to state court in order to present these claims. See State v. Ortiz, 670 N.W.2d 788, 792 (2003) (“An appellate court will not entertain a successive motion for postconviction relief unless the motion affirmatively shows on its face that the basis relied upon for relief was not available at the time the movant filed the prior motion. The need for finality in the criminal process requires that a defendant bring all claims for relief at the first opportunity. Additionally, the Nebraska Postconviction Act states in part: “The court need not entertain a second motion or successive motions for similar relief on behalf of the same prisoner.”) (internal citations omitted). Therefore, his claims are likely procedurally defaulted, not merely unexhausted.
In any event, Petitioner did not specify which claims are “unexhausted.” The court will not grant a stay of this matter based solely on Chuol’s statement that he hopes to file a subsequent postconviction action in order to exhaust unidentified claims, particularly where it appears from his allegations that a return to state court would be futile. Therefore, Chuol’s motion for a stay will be denied without ...