(HC)Watts v. Adams, No. 2:2010cv00277 - Document 14 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/6/10 ORDERING that the unexhausted claims contained in the original petition are stricken without prejudice; Petitioners 12 motion for extension of time is DENIED; RECOMMENDING that 10 MOTION to STAY based on King/Kelly be granted and this action be administratively stayed. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)
Download PDF
<![CDATA[
(HC)Watts v. Adams Doc. 14 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 CHICO ROMERO WATTS, 10 Petitioner, 11 vs. 12 No. CIV S-10-0277 WBS GGH P D. ADAMS, et al., 13 14 15 ORDER AND Respondents. FINDINGS AND RECOMMENDATIONS / Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 16 corpus pursuant to 28 U.S.C. § 2254 filed February 3, 2010. On March 2, 2010, the undersigned 17 issued an order finding that four of petitioner’s six claims were not exhausted. Petitioner was 18 granted twenty-eight days to file either a motion to stay or an amended petition containing his 19 exhausted claims only. If petitioner filed a motion to stay, he was ordered to address the factors 20 in Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005) or, in the alternative, the stay 21 procedures discussed in King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). 22 On March 11, 2010, petitioner filed a motion to stay. Petitioner alleges that he 23 believed his state appellate counsel raised all of the issues in the petition for review that he had 24 raised before the California Court of Appeal. Petitioner also alleges that he is a patient in the 25 mental health department. In this motion, petitioner references neither Rhines nor King. On 26 March 12, 2010, petitioner filed a motion for extension of time to exhaust his claims. In this 1 Dockets.Justia.com 1 motion, petitioner alleges that he is being treated at the California Medical Facility but his legal 2 property is stored at California State Prison-Corcoran. 3 The undersigned considers whether a stay is warranted under either Rhines or 4 King. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the United States Supreme 5 Court found that a stay and abeyance of a mixed federal petition should be available only in the 6 limited circumstance that good cause is shown for a failure to have first exhausted the claims in 7 state court, that the claim or claims at issue potentially have merit and that there has been no 8 indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra, 9 at 277-78, 125 S.Ct at 1535. 10 In Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), the Ninth Circuit 11 found that a petitioner’s mere “impression” that his attorney had included a claim in an appellate 12 brief did not constitute good cause for the petitioner’s failure to exhaust. Accordingly, 13 petitioner’s claim that he thought his appellate counsel raised all of his claims in the petition for 14 review is not good cause. 15 Petitioner also suggests that his mental illness prevented him from pursuing post- 16 collateral relief. This argument contradicts his claim that he did not file a state habeas petition 17 because he believed that his state appellate counsel raised all of his claims in the petition for 18 review. In any event, when petitioner filed this action he was housed at California State Prison- 19 Corcoran. On February 22, 2010, he filed a notice of change of address indicating that he had 20 been transferred to the California Medical Facility. Therefore, petitioner’s treatment for mental 21 illness is apparently quite recent. His claim that his mental illness prevented him from pursuing 22 state court remedies is not well supported. Petitioner’s claim that all of his legal materials are 23 still at Corcoran also does not constitute good cause for his failure to exhaust state court remedies 24 before filing this action. 25 26 For the reasons discussed above, the undersigned finds that petitioner has not shown good cause for his failure to exhaust all claims. Accordingly, the motion to stay pursuant 2 1 2 to Rhines should be denied. In King, supra, the Ninth Circuit recently held that in addition to the stay 3 procedure authorized in Rhines, district courts also have discretion to permit petitioners to follow 4 the three-step stay-and-abeyance procedure approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 5 F.3d 981, 986 (9th Cir. 1998) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Pursuant to the 6 Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the 7 court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner 8 the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later 9 amends his petition and re-attaches the newly-exhausted claims to the original petition. Kelly, 10 315 F.3d at 1070-71. The Kelly stay-and-abeyance procedure has no requirement of a good 11 cause showing or that the claims are potentially meritorious. 12 According to the exhibits attached to the complaint, the California Court of 13 Appeal affirmed his conviction on April 29, 2009. Petition, p. 378 of 441. The undersigned 14 cannot determine when the California Supreme Court denied the petition for review because 15 petitioner did not attach a copy of this order to the petition. However, it is clear that one year has 16 not yet passed since petitioner’s conviction became final. Because not one year has yet passed 17 since petitioner’s conviction became final, see 28 U.S.C. § 2244(d)(1)A), petitioner still has time 18 to exhaust his state court remedies and file a timely federal habeas corpus petition, assuming the 19 California Supreme Court finds his claims timely filed. For these reasons, a stay pursuant to 20 King v. Ryan is appropriate. Because only exhausted petitions may be stayed pursuant to the 21 procedures discussed in King, the undersigned will order the unexhausted claims contained in the 22 original petition stricken without prejudice. Once petitioner’s claims are exhausted, he must 23 immediately file an amended petition in this court containing all of his exhausted claims. 24 In the motion for extension of time, filed March 12, 2010, petitioner alleges that 25 his legal property is still at Corcoran. As discussed above, on February 22, 2010, petitioner filed 26 a notice of change of address indicating his transfer to the California Medical Facility from 3 1 Corcoran. It is the experience of the undersigned that it may take several weeks before a prisoner 2 receives his legal property following his transfer to a new prison. For that reason, it is likely that 3 petitioner has received his property. For that reason, petitioner’s motion for extension of time is 4 denied. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The unexhausted claims contained in the original petition are stricken without 7 prejudice; 8 2. Petitioner’s motion for extension of time (no. 12) is denied; 9 IT IS HEREBY RECOMMENDED that petitioner’s motion to stay (no. 10) based 10 on King/Kelly be granted and this action be administratively stayed. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen 13 days after being served with these findings and recommendations, plaintiff may file written 14 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 16 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 17 F.2d 1153 (9th Cir. 1991). 18 DATED: April 6, 2010 19 /s/ Gregory G. Hollows 20 UNITED STATES MAGISTRATE JUDGE 21 watt277.sta 22 23 24 25 26 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
