IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JEFFREY ROBERT SCHALZ, 

Petitioner, 

v. 

JERI TAYLOR, Superintendent, 

Two Rivers Correctional Facility, 

Respondent. 

C. RENEE MANES 

Assistant Federal Public Defender 

101 S.W. Main Street 

Suite 1700 

Portland, OR 97204 

Attorney for Petitioner 

ELLEN F. ROSENBLUM 

Attorney General 

SAMUEL A. KUBERNICK 

Assistant Attorney General 

Department of Justice 

1162 Court Street N.E. 

Salem, OR 97301 

Attorneys for Respondent 

1 - FINDINGS AND RECOMMENDATION -

Civil No. 2:14-cv-00699-AC 

FINDINGS AND RECOMMENDATION 

Case 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 1 of 7
ACOSTA, Magistrate Judge. 

Petitioner, an inmate at the Two Rivers Correctional Institution, brings this habeas corpus 

action pursuant to 28 U.S.C. § 2254. Currently before the Court is Petitioner's "Motion for 

Protective Petition and Order of Stay and Abeyance" (#4). For the reasons that follow, Petitioner's 

motion should be DENIED and a judgment of dismissal without prejudice should be entered. 

BACKGROUND 

Petitioner pleaded guilty in Wasco County Circuit Court to charges of Manslaughter in the 

First Degree and Unlawful Use of a Weapon. The judgment of conviction was entered on October 

28, 2011. Petitioner did not file a direct appeal. 

On April2, 2014, Petitioner signed a petition for state post -conviction relief ("PCR"), which 

was filed in the Umatilla County Circuit Court on April7, 2014. On April15, 2014, the PCR trial 

court issued an "Order to Show Cause" directing Petitioner to respond and show cause why the 

PCR petition should not be dismissed on the basis that it was not timely filed. Petitioner responded, 

and on May 28, 2014, the PCR trial court issued an order dismissing the Order to Show cause and 

allowing the PCR petition to proceed. The PCR court also appointed counsel for Petitioner and set 

further deadlines for the PCR trial proceedings. 

On April2, 2014, the same day he signed his state PCR petition, Petitioned signed a prose 

Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, which was filed in this Court. 

Petitioner acknowledges that none of the grounds for relief alleged in his federal Petition have been 

presented to Oregon's highest state court. Petitioner now seeks an order staying this proceeding and 

holding his Petition in abeyance pending completion of the state PCR proceedings. Respondent 

2 - FINDINGS AND RECOMMENDATION -

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filed a response in objection to the motion, and appointed counsel filed a reply in support on 

Petitioner's behalf. 

DISCUSSION 

A federal court may not grant habeas relief to a person held in state custody unless the 

petitioner has exhausted his available state court remedies as to each of the issues presented. 28 

U.S.C. § 2254(b)(l)(A); Rose v. Lundy, 455 U.S. 509, 518 (1982). "[T]he exhaustion doctrine is 

designed to give the state courts a full and fair opportunity to resolve federal constitutional claims 

before those claims are presented to the federal courts." O'Sullivan v. Boerckel, 526 U.S. 838, 845 

(1999) (emphasis added); see also Baldwin v. Reese, 541 U.S. 27,29 (2004) (to give the state the 

chance to pass upon and resolve violations of his federal rights, a state prisoner must exhaust his 

available state remedies before seeking federal habeas relief). To satisfy the exhaustion 

requirement, a petitioner must "fairly present" his federal claims to the state courts, i.e., give them 

a fair opportunity to consider and correct violations of the prisoner's federal rights. See Duncan v. 

Henry, 513 U.S. 364,365 (1995); Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) 

(en bane). 

Petitioner admits he has not exhausted any of the claims alleged in his federal Petition, as 

his state PCR proceeding remains pending at the PCR trial court level. Nevertheless, Petitioner 

argues that he is entitled to pursue federal habeas relief because the Petition is a "protective 

petition" filed pursuant to Pace v. DiGuglielmo, 544 U.S. 408 (2005) and Rhines v. Weber, 544 

U.S. 269 (2005). 

3- FINDINGS AND RECOMMENDATIONCase 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 3 of 7
In Pace, the Supreme Court considered the question whether the 28 U.S.C. § 2244(d)(2) 

statutory tolling provision could apply to a state post-conviction petition that the state court found 

to be untimely under state procedural rules. Pace, 544 U.S. at 417. The Court held such a state 

post-conviction is not "properly filed" for the purposes of§ 2244( d)(2), and no statutory tolling may 

be afforded for the time while it is pending. Id. 

The Supreme Court acknowledged in Pace the petitioner's argument that the holding was 

unfair because a litigant might attempt, in good faith, to exhaust his state remedies only to find at 

the conclusion ofhis exhaustion process that. his state post-conviction petition would not afford him 

a basis for statutory tolling. In dicta, the Court observed that a "prisoner seeking state postconviction relief might avoid this predicament, however,. by filing a 'protective' petition in federal 

court and asking the federal court to stay and abey the federal habeas proceedings" pursuant to the 

stay procedure established in Rhines. Pace, 544 U.S. at 417 1

• 

In Rhines, the Supreme Court considered "the problem of a 'mixed' petition for habeas relief 

in which a state prisoner presents a federal court with a single petition containing some claims that 

have been exhausted in the state courts and some that have not." Rhines, 544 U.S. at 271. The 

Court held that a district court has the discretion to stay a "mixed" petition to allow a petitioner to 

exhaust his unexhausted claims in the state court and then return to federal court to have his now 

fully-exhausted habeas petition considered. See id. at 277- 78. The stay procedure established by 

1

The "protective petition" comment in Pace was dicta, as the Pace decision and holding 

revolve around the effect of a state court's untimeliness finding on the statutory tolling that 

may be available when a habeas petition is otherwise untimely; the decision did not purport 

to resolve any exhaustion issue or alter any well-established exhaustion doctrines. FloresGonzales v. Long, 2013 WL 1164400, * 4 n.5 (C.D. Cal., March 20, 2013). 

4 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 4 of 7
Rhines applies only to "mixed" habeas petitions, not those that are fully unexhausted. See Jackson 

v. Roe, 425 F .3d 654, 661 (9th Cir. 2005) (noting that, unlike the Ninth Circuit's three-step stay and 

abeyance procedure applicable to fully exhausted petitions, "Rhines applies to stays of mixed 

petitions"). 

Rhines provides no aid when a petition is fully unexhausted. Indeed, a fully unexhausted 

federal habeas petition may not be stayed and must be dismissed. See, e.g., Rasberry v. Garcia, 448 

F.3d 1150, 1154 (9th Cir. 2006) (holding that a fully unexhausted petition may not be stayed and 

observing that " [ o ]nee a district court determines that a habeas petition contains only unexhausted 

claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss 

the habeas petition for failure to exhaust"); Jones v. McDaniel, 320 Fed. Appx. 784, 786 (9th Cir.) 

(affirming the dismissal of a fully unexhausted petition and denial of a stay, because a "Rhines stay 

is only available for a mixed habeas petition where at least some of the claims have been exhausted, 

and none of [petitioner's] claims were exhausted"), cert. denied, 558 U.S. 886 (2009); Jiminez v. 

Rice, 276 F.3d 478,481 (9th Cir. 2001) (a district court is obliged to dismiss immediately a petition 

that contains no exhausted claims), cert. denied, 538 U.S. 949 (2003). 

Petitioner argues the instant Petition falls within the Pace dicta regarding protective 

petitions. However, even if the Supreme Court's dicta in Pace could serve as authority for filing 

a protective ·petition, any such authority would extend only to a mixed petition, not a fully 

unexhausted petition such as filed in this case. See Walker v. Uribe , 2011 WL 6181939, at *4 

(E.D.Cal. Dec, 13, 2011) (observing, in connection with finding that a fully exhausted petition 

could not be stayed and must be dismissed that although Pace dicta adverted to the possibility of 

5 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 5 of 7
filing a protective petition to permit exhaustion of claims stated therein, the suggestion was made 

in connection with a discussion of a Rhines stay, which is appropriate in cases involving not a fully 

unexhausted petition such as that in the present case, but rather a mixed petition containing both 

exhausted and unexhausted claims), vacated as moot by 2012 WL 592187 (E.D. Cal., Feb. 22, 

2012); Lopez v. Schwarzenneger, 2010 WL 2880145, at *4 (E.D.Cal. July 21, 2010) (finding that 

a fully unexhausted petition is not a 'protective' petition as discussed in Pace because the court's 

ruling in Pace was premised on the fact that the petition was mixed, not completely unexhausted); 

Brown v. Dexter, 2008 WL 4384181 , at *4 (C.D.Cal. Aug. 21 , 2008) (same). 

Petitioner's state judicial remedies are as yet unexhausted, as his state PCR proceeding 

remains nding. Because the federal Petition is fully unexhausted, Petitioner's request for a stay 

should be denied and the Petition should be dismissed without prejudice.2 Rose, 455 U.S. at 522. 

RECOMMENDATION 

For these reasons, Petitioner's "Motion for Protective Petition and Order of Stay and 

Abeyance" (#4) should be DENIED, and an Order and Judgment of dismissal without prejudice 

should be entered. A certificate of appealability should be denied as Petitioner has not made a 

substantial showing ofthe denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). 

2

Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts 

provides that a petition for writ of habeas corpus "must" be summarily dismissed "[i]f it 

plainly appears from the petition and any attached exhibits that the petitioner is not entitled 

to relief in the district court." Here, it plainly appears that the Petition is unexhausted. See 

Boyd v. Thompson, 147 F.3d 1124, 1127-28 (9th Cir. 1998) (the court may raise exhaustion 

problems sua sponte). 

6 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 6 of 7
SCHEDULING ORDER 

The above Findings and Recommendation are referred to a United States District Judge for 

review. Objections, if any, are due October 13, 2014 .. Ifno objections are filed, review ofthe 

· Findings and Recommendation will go under advisement that date. 

A party may respond to another party's objections within 14 days after the objections are 

filed. If objections are filed, review ofthe Findings and Recommendation will go under advisement 

upon receipt of the response, or on the latest date for filing a response. 

DATED thisd_¢-fSeptember, 201 . /l 

J. v1'----- .. Acosta 

d States Magistrate Judge 

7 - FINDINGS AND RECOMMENDATION -

Case 2:14-cv-00699-AC Document 19 Filed 09/25/14 Page 7 of 7