Conriquez v. Adams
Filing
16
ORDER DENYING 10 Petitioner's Motion to Stay Petition; ORDER GRANTING Petitioner Leave to File an Amended Petition for Writ of Habeas Corpus, signed by Magistrate Judge Dennis L. Beck on 3/4/2010. Amended Petition due by 3/29/2010. (Jessen, A)
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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 On May 19, 2009, Petitioner filed a petition for writ of habeas corpus in the Central District 18 of California. (Doc. #1.) The petition was transferred to the Eastern District of California on June 9, 19 2009. (Doc. #8.) 20 Petitioner asserted the following claims in his petition: Ground One, Trial counsel was 21 ineffective in failing to object in a timely manner or to move in limine to exclude Petitioner's out-of22 court statement, thereby violating his Fifth Amendment right to remain silent; Ground Two, 23 Petitioner's right to due process was violated when the prosecutor misstated the reasonable doubt 24 standard and vouched for the sole prosecution witness and Petitioner's right to affective assistance of 25 counsel was denied when his attorney failed to object;" Ground Three, "cumulative prejudice 26 amounted to a violation of [Petitioner]'s right to due process; Ground Four, "improper use of prison 27 prior;" and Ground Five, "ineffective assistance of appellate counsel." (Mem. P. & A., 2-3; Doc. 28
U . S . D is t r ic t C o u r t E. D . C a lifo r n ia
UNITED STATES DISTRICT COURT
JAMES CONRIZUEZ, Jr., Petitioner, v. DERRAL G. ADAMS, Warden Respondent.
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1:09-cv-01003 YNP DLB (HC) ORDER DENYING PETITIONER'S MOTION TO STAY PETITION [Doc. #10] ORDER GRANTING PETITIONER LEAVE TO FILE AND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
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#2.) Grounds Four and Five were, admittedly, unexhausted in State court. (Pet., 7.) On July 17, 2009, Petitioner field a motion to stay his petition while he exhausted Grounds four and five in State court; Petitioner also requested the appointment of counsel. (Doc. #10.) Respondent opposed the motion on August 6, 2009. (Doc. #13.) Both parties have consented to the jurisdiction of the Federal Magistrate Judge for all matters in this cause, including final disposition, pursuant to 28 U.S.C. § 636(c). DISCUSSION The 9th Circuit has clearly specified two possible bases to stay a habeas petition. King v. Ryan, 564 F.3d 1133. One basis is Rhines, under which, in limited circumstances and in the court's discretion, a petition stayed and placed in abeyance while petitioner exhausts the unexhausted claims in state court. King,564 F.3d at 1135-36 (citing Rhines v. Webber, 544 U.S. 269 (2005)). The second basis for stay pursuant to the Kelly three-step procedure. Under Kelly, a petitioner must first amend his mixed petition to delete any unexhausted claims. The court will stay and hold in abeyance the amended, and now fully exhausted, petition while the petitioner exhausts the deleted claims in state court. The petitioner may then later amend his stayed petition to re-attach the now fully exhausted claims. King, 564 F.3d at 1135 (citing Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002)). There are two important distinctions between Rhines and Kelly. First, Rhines stays and holds in abeyance both the exhausted and unexhausted claims where as Kelly requires the petitioner to delete the unexhausted claims and only stays and holds in abeyance the fully exhausted petition. Thus under Kelly a petitioner must still re-attach his deleted claims within the original one year statue of limitation. King, 564 F.3d at 1138-39; 28 U.S.C. § 2244(d)(1). A Rhines petitioner's unexhausted claims are not subject to further running of the statute of limitation because his unexhausted claims remain in federal court. King, 564 F.3d at 1139, 1140 (citing Rhines, 544 U.S. at 277). The second difference is that Rhines requires a showing of good cause, while Kelly does not. King, 564 F.3d at 1140. Even though Kelly does not require a showing of good cause, the Court was clear that the "district courts retain the same degree of discretion they had before Rhines to 2
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implement the Kelly procedure..." King, 564 F.3d at 1141. In this case, Petitioner readily admits that Grounds Four and Five are unexhausted and he asks that his petition be stayed while he exhausts them. Petitioner cites to Rhines and argues judicial economy as good cause for the stay. Respondent argues that Petitioner has not shown good cause as to why he did not exhaust Grounds Four and Five with the other grounds alleged in the petition. The Court agrees with Respondent and finds that Petitioner has failed to make a showing of good cause thereby precluding a stay under Rhines. In light of the fact that Respondent has not filed and answer to the petition and that Petitioner has filed a mixed petition, a stay under the Kelly procedure is appropriate. Because the Kelly procedure only stays fully exhausted petitions, Petitioner must first delete his unexhausted claims by filing a First Amended Petition listing only those claims which are fully exhausted. Petitioner can then move to stay the petition while he exhausts his two unexhausted claims in State court. The Court notes that in proceeding with the Kelly procedure, Petitioner's unexhausted claims are still subject to the one year AEDPA statute of limitations and statutory tolling cannot possibly take effect until a petition has been properly filed in the State court.1 ORDER Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's motion to stay DENIED; 2. Petitioner is granted leave to amend his petition for writ of habeas corpus and motion to stay the amended petition within twenty (20) days of this order. IT IS SO ORDERED. Dated: 3b142a
March 4, 2010
/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE
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This remark shall have no bearing on any future court ruling concerning the timeliness of a State or federal petition fo r writ of habeas corpus filed by Petitioner.
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