United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 19, 2006
Charles R. Fulbruge III
Clerk
No. 04-11302
Summary Calendar
DANIEL YBARRA,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-2380
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
This court issued Daniel Chavez Ybarra (TDCJ # 1016250) a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 petition wherein he challenged
a 1994 deferred-adjudication conviction for aggravated kidnaping
and a 2000 state-court judgment revoking his probation and
sentencing him to 24 years of imprisonment. During the pendency
of the petition, Ybarra filed pleadings indicating that his
counsel during the revocation proceedings was not licensed to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-11302
-2-
practice law during the revocation proceedings. Finding that the
claim was not exhausted in the state courts, the district court
dismissed the “mixed” petition without prejudice.
In his motion for a COA in this court, Ybarra argued for the
first time that the district court should have sua sponte stayed
the proceedings rather than dismiss the petition for failure to
exhaust because any subsequent petition would be time-barred
pursuant to 28 U.S.C. § 2244(d)(1). During the pendency of
Ybarra’s motion, the Supreme Court decided Rhines v. Weber, 544
U.S. 269 (2005), which addressed, in part, the situation in which
a petitioner filed a timely but mixed petition in federal
district court and the court dismissed the petition for failure
to exhaust after the limitations period had expired. Id. at 275.
This court issued Ybarra a COA on the issue whether, in light of
Rhines, the district court reversibly erred in dismissing
Ybarra’s petition rather than sua sponte holding it in abeyance.
A district court has discretion to stay, rather than
dismiss, a “mixed” habeas petition “only in the limited
circumstances” where there is “good cause” for the petitioner’s
failure to exhaust his claim first in state court, the
petitioner’s unexhausted claim is potentially meritorious, and
the petitioner has not engaged in abusive litigation tactics or
intentional delay. Rhines, 544 U.S. at 277-78.
Ybarra’s only assertion on appeal is that his counsel’s
suspension from practice for non-payment of taxes rendered her
No. 04-11302
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per se ineffective. This court has declined to apply a per se
ineffectiveness rule in situations involving unlicensed
attorneys. See United States v. Maria-Martinez, 143 F.3d 914,
916-917 (5th Cir. 1998). Because his claim is not potentially
meritorious, Ybarra has not shown that the district court
reversibly erred by not sua sponte granting a stay in the
proceedings. See Rhines, 544 U.S. at 277.
AFFIRMED.