Jeffrey Hout v. EARL HOUSER, State of Alaska Department of Corrections Superintendent III

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY HOUT,
Petitioner-Appellant,
v.
EARL HOUSER, State of Alaska
Department of Corrections Superintendent
III,
Respondent-Appellee.
No. 21-35381
D.C. No. 4:21-cv-00004-JKS
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Jr., District Judge, Presiding
Argued and Submitted November 7, 2022
Seattle, Washington
Before: IKUTA and COLLINS, Circuit Judges, and FITZWATER,** District
Judge.
Jeffrey Hout appeals the district court’s dismissal of his petition for a writ of
habeas corpus without expressly considering his request to stay and hold his
FILED
DEC 1 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.

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petition in abeyance. We have jurisdiction under 28 U.S.C. § 2253(c), see
Washington v. Cambra, 208 F.3d 832, 833 (9th Cir. 2000), and we review for
abuse of discretion, see Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017). We
affirm the district court.
Hout filed a timely petition for state post-conviction relief before his
conviction became final on direct review, and it is undisputed that his state
application for post-conviction relief remains pending in Alaska state court. See
Valdez v. Montgomery, 918 F.3d 687, 690 (9th Cir. 2019). The Antiterrorism and
Effective Death Penalty Act’s one-year statute of limitations for filing a federal
habeas petition, see 28 U.S.C § 2244(d)(1), is tolled during the pendency of
properly filed state post-conviction proceedings, see 28 U.S.C § 2244(d)(2); see
also Tillema v. Long, 253 F.3d 494, 502 (9th Cir. 2001), as amended on denial of
reh’g and reh’g en banc (Aug. 3, 2001); Campbell v. Henry, 614 F.3d 1056,
1061–62 (9th Cir. 2010). Thus, the statute of limitations is tolled as to all of
Hout’s claims in his federal habeas petition, whether his claims are exhausted or
unexhausted. See Gaston v. Palmer, 417 F.3d 1030, 1040 (9th Cir. 2005)
(explaining that while “[e]xhaustion is determined on a claim-by-claim basis,” the
“relevant question for § 2244(d)(2) tolling purposes is whether a properly filed
application is pending in state court, and not whether any particular claim was
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contained in that application”), reh'g granted, opinion modified, 447 F.3d 1165
(9th Cir. 2006) (internal citations omitted).
When his state proceedings conclude, Hout will have the full one-year
limitations period to refile his federal habeas petition containing only exhausted
claims. Therefore, the district court did not abuse its discretion in dismissing
Hout’s mixed habeas petition without considering his request to stay the petition
and hold it in abeyance while he exhausted his unexhausted claims. Further, any
error would be harmless because Hout will have the full one-year limitations
period to bring his federal habeas petition regardless whether a stay is granted.
AFFIRMED.
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