Summary
vacating and remanding to consider whether a stay was warranted because the district court offered petitioner the choice to delete his unexhausted claims before making this threshold finding
Summary of this case from King v. ChaseOpinion
No. 02-10642.
September 26, 2005.
Terri Lynn Backhus, Backhus Izakowitz, P.A., Tampa, FL, Rachel Lawrence Day (Court-Appointed), Fort Lauderdale, FL, for Thompson.
Sandra Sue Jaggard, Miami, FL, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Florida.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before EDMONDSON, Chief Judge, and TJOFLAT and DUBINA, Circuit Judges.
A Florida district court heard Thompson's mixed petition for habeas relief. In 2003, we decided that, if the district court had the discretion not to dismiss a mixed habeas petition, the court did not abuse its discretion by offering Thompson the choice of abandoning his unexhausted claims and proceeding on the exhausted claims or of having his entire petition dismissed. Thompson v. Crosby, 320 F.3d 1228, 1230 (11th Cir. 2003) vacated by ___ U.S. ___, 125 S.Ct. 1722, 161 L.Ed.2d 596 (2005).
Thompson appealed our decision to the United States Supreme Court. The Court remanded the matter to us for further consideration in the light of Rhines v. Weber, ___ U.S. ___, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005). After reviewing our previous decision and the Court's opinion in Rhines, we vacate the district court's order and remand for further consideration.
In Rhines, the Court said what we had assumed: district courts may order a stay and abeyance of mixed petitions "in limited circumstances." 125 S.Ct. at 1535.