JEFFREY HOUT V. EARL HOUSER, No. 21-35381 (9th Cir. 2022)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 1 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. JEFFREY HOUT, Petitioner-Appellant, 21-35381 D.C. No. 4:21-cv-00004-JKS v. EARL HOUSER, State of Alaska Department of Corrections Superintendent III, MEMORANDUM* Respondent-Appellee. 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 * 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. 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 2 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. 3
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