Edward Gardner v. Frank Luna

MEMORANDUM

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 ha-beas petition. We affirm.

The district court did not abuse its discretion in lifting the Rhines stay. See Rhines v. Weber, 544 U.S. 269 , 125 S.Ct. 1528 , 161 L.Ed.2d 440 (2005). 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, 125 S.Ct. 1528 . 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…