Krueger v. Cate
Filing
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ORDER GRANTING 13 Petitioner's Motion for Stay and Abeyance; ORDER DENYING 9 Respondent's Motion to Dismiss, signed by Magistrate Judge Sandra M. Snyder on 6/2/2011. CASE STAYED. Petitioner is directed to file a status report within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN W. KRUEGER,
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1:11-CV-00097 SMS HC
Petitioner,
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ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE
[Doc. #13]
v.
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ORDER DENYING RESPONDENT’S
MOTION TO DISMISS
[Doc. #9]
MATTHEW CATE,
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Respondent.
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/
THIRTY DAY DEADLINE
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Petitioner is a state prisoner proceeding with a petition for writ of habeas corpus pursuant to
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28 U.S.C. § 2254.
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On January 20, 2011, Petitioner filed the instant petition regarding his 2007 conviction in
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Kern County Superior Court for lewd and lascivious conduct with a child under the age of fourteen.
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Respondent filed a motion to dismiss the petition because the majority of the claims raised were
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unexhausted in that Petitioner had not presented them first to the California Supreme Court.
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Petitioner filed an opposition to the motion along with a motion for stay and abeyance. Respondent
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filed a statement of non-opposition to Petitioner’s motion for stay.
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DISCUSSION
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A district court has discretion to stay a petition which it may validly consider on the merits.
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Rhines v. Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d
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981, 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519
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U.S. 1102 (1997). However, the Supreme Court has held that this discretion is circumscribed by the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light
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of AEDPA’s objectives, “stay and abeyance [is] available only in limited circumstances” and “is
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only appropriate when the district court determines there was good cause for the petitioner’s failure
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to exhaust his claims first in state court.” Id. at 277. Even if Petitioner were to demonstrate good
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cause for that failure, “the district court would abuse its discretion if it were to grant him a stay when
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his unexhausted claims are plainly meritless.” Id.
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In this case, the Court finds good cause to excuse Petitioner’s failure to exhaust. Petitioner
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states he misunderstood his appellate counsel and believed the additional claims had been exhausted
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on appeal. He further states he has not delayed in seeking federal habeas relief. Good cause having
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been shown, the Court will grant a stay of the proceedings so Petitioner can complete exhaustion of
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the additional claims.
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However, the Court will not indefinitely hold the petition in abeyance. Rhines, 544 U.S. at
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277. Petitioner must proceed diligently to pursue his state court remedies. He is directed to file his
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petition in the California Supreme Court within thirty (30) days of the date of service of this Order
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and file a status report within thirty (30) days of the date of service of this Order, and he must file a
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status report every ninety (90) days thereafter advising the Court of the status of the state court
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proceedings. Following final action by the state courts, Petitioner will be allowed thirty (30) days to
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file a motion to lift the stay. Failure to comply with these instructions and time allowances will
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result in this Court vacating the stay nunc pro tunc to the date of this order. Rhines, 544 U.S. at 278.
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion to stay the petition and hold the exhausted claims in abeyance is
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GRANTED;
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2. Respondent’s motion to dismiss is DENIED;
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3. The instant petition is STAYED pending exhaustion of Petitioner’s state remedies;
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4. Petitioner is DIRECTED to file a status report within thirty (30) days of the date of service
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of this Order advising the Court of the filing of his state court petition and the date the petition was
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filed;
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5. Petitioner is DIRECTED to file a new status report every ninety (90) days thereafter; and
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6. Should Petitioner be denied relief by the California Supreme Court, he will be
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ALLOWED thirty (30) days time following the final order of the California Supreme Court in which
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to file a motion to lift the stay and proceed on the initial petition.
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IT IS SO ORDERED.
Dated:
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June 2, 2011
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
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