Edward Y. Gardner v. FRANK LUNA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD Y. GARDNER,
Petitioner-Appellant,
v.
FRANK LUNA, Warden,
Defendant-Appellee.
No. 14-35644
D.C. No. 3:06-cv-00259-RRB
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Submitted August 4, 2016**
Anchorage, Alaska
Before: FISHER, PAEZ, and HURWITZ, Circuit Judges.
Edward Y. Gardner appeals the district court’s order lifting a previously
imposed stay of his unexhausted habeas claims—a Confrontation Clause claim and
a Due Process Clause claim—and dismissing his habeas petition. We affirm.
FILED
AUG 17 2016
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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The district court did not abuse its discretion in lifting the Rhines stay. See
Rhines v. Weber, 544 U.S. 269 (2005).1 As the Rhines Court cautioned, “[e]ven
where stay and abeyance is appropriate, the district court’s discretion in structuring
the stay is limited by the timeliness concerns reflected in AEDPA. A mixed
petition should not be stayed indefinitely.” Id. at 277. Here, the district court
lifted the stay on Gardner’s unexhausted claims because the stay was granted
“nearly six years ago and no supplemental pleadings appear to have been filed
regarding these claims.” Instead, in his second application for post-conviction
relief, Gardner claimed only that he had been “denied his constitutionally protected
right to effective assistance of counsel, secured to him by the Sixth Amendment to
the United State Constitution.” He never asserted a direct Confrontation Clause
claim or a Due Process Clause claim. Therefore, the district court acted within its
discretion in lifting the Rhines stay.
Nor did the district court err in subsequently dismissing these claims as
unexhausted. “Under 28 U.S.C. § 2254(b)(1)(A), the federal courts are not to grant
a writ of habeas corpus brought by a person in custody pursuant to a state court
judgment unless ‘the applicant has exhausted the remedies available in the courts
1 As an initial matter, it is clearly within the district court’s discretion to
issue or maintain a Rhines stay even “in cases of fully unexhausted petitions.” See
Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016).
2

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of the State.’” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (quoting
28 U.S.C. § 2254(b)(1)(A)). Because Gardner failed to exhaust his Confrontation
and Due Process Clause claims in state court, the district court properly dismissed
them once it lifted the Rhines stay.
AFFIRMED.
3

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