Tran v. Macomber
Filing
13
ORDER GRANTING 12 MOTION TO STAY PETITION; DIRECTING CLERK OF THE COURT TO ADMINISTRATIVELY CLOSE CASE UNTIL STAY IS LIFTED. Signed by Judge Claudia Wilken on 8/10/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/10/2012)
<![CDATA[
1
IN THE UNITED STATES DISTRICT COURT
2
FOR THE NORTHERN DISTRICT OF CALIFORNIA
3
4
DUNG TRAN,
5
6
7
Petitioner,
ORDER GRANTING
MOTION TO STAY
PETITION;
DIRECTING CLERK OF
THE COURT TO
ADMINISTRATIVELY
CLOSE CASE UNTIL
STAY IS LIFTED
v.
TIM VIRGA, Warden,
8
9
No. C 11-0877 CW
Respondent.
________________________________/
(Docket no. 12)
United States District Court
For the Northern District of California
10
11
Petitioner, a state prisoner proceeding pro se, filed this
12
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
13
raising claims of ineffective assistance of counsel and
14
instructional error.
Following an initial review of the petition,
15
the Court found Petitioner’s claims cognizable and ordered
16
Respondent to show cause why the petition should not be granted.
17
Respondent filed an answer addressing the merits of the claims.
18
Petitioner, in lieu of filing a traverse, has filed a motion to
19
stay the proceedings so that he may exhaust new claims of
20
instructional error in state court.
Respondent has not opposed
21
the motion.
22
A district court may stay a mixed habeas petition, i.e., a
23
petition containing both exhausted and unexhausted claims, to
24
allow the petitioner to exhaust state court remedies as to those
25
claims that have not yet been presented to the state’s highest
26
court.
See Rhines v. Weber, 544 U.S. 269, 277-78 (2005).
27
Rhines, the Supreme Court discussed the stay-and-abeyance
28
In
1
procedure, explaining that a stay and abeyance “is only
2
appropriate when the district court determines there was good
3
cause for the petitioner’s failure to exhaust his claims first in
4
state court,” the claims are not meritless, and there are no
5
intentionally dilatory litigation tactics by the petitioner.
Id.
6
The instant case is distinguishable from Rhines, however,
7
because Petitioner did not file a mixed petition; rather, he filed
8
a fully exhausted petition and now asks for a stay while he
9
returns to state court to exhaust unexhausted claims.
In King v.
United States District Court
For the Northern District of California
10
Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit clarified
11
that the procedure for granting a stay under such circumstances is
12
different from the procedure employed where a petitioner seeks to
13
stay a mixed petition.
14
stay of a fully exhausted petition while he returns to state court
15
to exhaust unexhausted claims, no showing of good cause is
16
required to stay the petition.
17
the newly exhausted claims can be added to the original petition
18
by amendment only if the claims are timely under the one-year
19
statute of limitations set forth at 28 U.S.C. § 2244(d)(1).
20
at 1140-41.
21
accordance with said statute, they can be added to the original
22
petition by amendment only if they “relate back” to the claims in
23
the original petition that were fully exhausted at the time of
24
filing.
25
(2005)); Fed. R. Civ. P. 15(c).
26
Specifically, where a petitioner seeks a
Id. at 1140.
Thereafter, however,
Id.
If the newly exhausted claims are not timely filed in
Id. at 1142-43 (citing Mayle v. Felix, 545 U.S. 644, 659
Here, as noted, Petitioner moves to stay his fully exhausted
27
petition so that he may return to state court to exhaust new
28
claims of instructional error, which he will move to add to the
2
1
present petition.
2
stay without a showing of good cause.
3
Under such circumstances, the Court may grant a
See King, 564 F.3d at 1140.
Accordingly, Petitioner’s motion to stay the petition is
4
GRANTED and these proceedings are hereby STAYED pending the
5
exhaustion of his new claims in state court.1
6
Once the California Supreme Court has issued a decision on
7
Petitioner’s new claims, and if he does not obtain the relief he
8
seeks in state court, Petitioner shall, within thirty days of the
9
California Supreme Court’s decision, file in this court a “Motion
United States District Court
For the Northern District of California
10
to Lift Stay and Reopen Action,” along with an amended petition
11
that includes all of the claims that he wishes to present in his
12
federal habeas corpus petition.
13
deadlines may result in the dismissal of this action.
14
15
Failure to comply with these
The Clerk of the Court shall ADMINISTRATIVELY CLOSE the file
pending the stay of this action.
16
This Order terminates Docket no. 12.
17
IT IS SO ORDERED.
18
19
Dated:
20
8/10/2012
CLAUDIA WILKEN
United States District Judge
21
22
23
1
24
25
26
27
28
The Court does not determine at this time whether
Petitioner’s new claims will be found timely under the one-year
statute of limitations set forth at 28 U.S.C. § 2244(d)(1) or, if
they are not, whether they will be found to “relate back” to the
original petition. Instead, the most pragmatic approach is to
wait to address these issues until Petitioner exhausts his state
remedies and moves to amend his petition with the newly exhausted
claims.
3
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
