[typos in 'title' aren't mine]

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ADC #SK931

v. Case No. 5:04-CV-391-WRW

Arkansas Department of Correction


COMES NOW Respondent, Larry Norris, by and through counsel, Mike Beebe, Attorney General, Brent P. Gasper, and Joe Svoboda, Assistant Attorneys General, and for his reply to Echols' response to the motion to dismiss, states:

Petitioner Damien Wayne Echols is a state prisoner currently sentenced to death for three counts of capital murder committed in West Memphis, which is in Crittenden County, Arkansas. Venue was transferred to Craighead County, and, after a trial, a jury found him guilty of these crimes on March 19, 1994. Echols filed a petition for a writ of habeas corpus on October 28, 2004, and an amended petition on or about February 28, 2005. Respondent filed a motion to dismiss the petitions on March 2, 2005, arguing that under 28 U.S.C. 2254(b)(1)(A) and Victor v. Hopkins, 90 F.3d 276 (8th Cir. 1996), because Echols filed a "mixed" petition containing exhausted and unexhausted claims, this Court had no authority to hold the case open under the theory of stay-and-abeyance, as Echols requested, and that he must exhaust "the remedies available in the courts of the State," pursuant to Rose v. Lundy, 455 U.S. 509, 519 (1982).

Subsequently, the United States Supreme Court handed down its opinion in Rhines v. Weber, 125 S.Ct. 1528 (March 30, 2005). Echols now requests this Court employ the principles


of Rhines and stay-and-abey the instant case, allowing him to complete the state-habeas DNA proceedings currently pending in Craighead County Circuit Court. However, Respondent respectfully disagrees with this argument, and believes that Rhines is not applicable in the instant case, and, as such, again asks this Court to dismiss the instant action for Echols' failure to fully exhaust all available state remedies.

The language of Rhines is straightforward. Specifically:

[S]tay and abeyance should be available only in limited circumstances. Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court.

Rhines, 125 S.Ct. at 1535 (emphasis added). Essentially, the Rhines Court addresses those instances where a petitioner must return to state court in order to exhaust his state remedies, yet still has the federal limitations period to contend with. Indeed, the factual scenario of Rhines is drastically different than the one in the instant case. In Rhines, the petitioner filed a mixed habeas petition with eleven months still left in the one-year statute of limitations period, but with no pending state-court proceedings. Id. at 1532. After filing an amended petition some months later, the district court found that some of his claims were not exhausted, but by that time, his federal limitations period had run. Id. The petitioner requested that the district court stay-and-abey the proceedings, because if the court dismissed the mixed petition for failing to exhaust, he could not re-file due to the expiration of the federal limitations period. Id.

However, Echols' federal limitations period has at no time started running by virtue of his lengthy and overlapping state-court proceedings. If this Court dismissed the instant petition, Echols federal habeas' limitations period would still not begin to run until the conclusion of the


state-habeas DNA proceeding currently pending in Craighead County Circuit Court. 1 Given the lengthy procedural history of this case, that time period could be several years if the results of the DNA testing inure to Echols' benefit and one takes into account all circuit court hearings and appellate proceedings such a result would invariably lead toward.

Echols has not failed to present his claims in state court. In fact, up to this point, he seemingly has litigated every claim available, oftentimes overlapping in several different legal avenues. The one claim still viable in state court was commenced before the filing of his federal habeas petition and he readily admits that he filed his federal petition in order to "cover his bases" so-to-speak, just in case his state habeas DNA action didn't for some reason toll the limitations period, which it surely does. Simply, the Rhines stay-and-abey procedure is available to those petitioners who are required to return to state court in order to exhaust claims, not for petitioners who are already there. As such, Rhines is inapplicable to the case at bar and this Court should grant Respondent's motion to dismiss the mixed petition pursuant to Rose.

WHEREFORE, the Respondent prays that the Court dismiss Echols's petition for a writ of habeas corpus without prejudice and without a hearing pursuant to Rule 8(a) of the RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT COURTS as he is currently still pursuing his state-court remedies.

Respectfully submitted:


1 While Echols expresses concerns in his original federal habeas petition that his state-habeas DNA petition might not toll the statute of limitations because that issue has not squarely been addressed by a federal court, Respondent firmly believes that it would as a valid state-court post-conviciton proceeding and would have no issue with this Court's finding it as such.


323 Center Street, SUITE 200
Little Rock, AR 72201
(501) 682-8131

By: (signed)
Brent P. Gasper
Ark. Bar No. 98240
Joe V. Svoboda
Ark. Bar No. 744144
Attorneys for the Respondent


I hereby certify that a copy of the foregoing has been mailed via U.S. Mail, postage prepaid, to

Dennis P. Riordan
Donald M. Horgan
Theresa Gibbons
Attorneys for the Petitioner
523 Octavia Street
San Francisco, California 94120

Deborah R. Sallings
Attorney for the Petitioner
Cauley Bowman Carney & Williams
11001 Executive Center Drive, Ste. 200
Little Rock, Arkansas 72211

on this 13th day of May, 2005.

Brent P. Gasper
Attorney for the Respondent