-EFB (HC) Nichols v. Harris, No. 2:2011cv00368 - Document 19 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 8/31/2011 RECOMMENDING that Ptnr's 3 Motion for Stay be denied. Motion referred to Judge Garland E. Burrell, Jr.. Objections to F&R due within 14 days. (Zignago, K.)
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-EFB (HC) Nichols v. Harris Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DAVID ALLEN NICHOLS, Petitioner, 11 vs. 12 13 No. CIV S-11-0368 GEB EFB P WILLIAM KNIPP, Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 16 17 corpus. See 28 U.S.C. § 2254. He has requested that the court stay this proceeding so that he 18 can exhaust one of his claims. Dckt. No. 3. For the following reasons, the undersigned 19 recommends that the motion for stay be denied. 20 I. 21 The Exhaustion Requirement A district court may not grant a petition for a writ of habeas corpus unless the petitioner 22 has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be 23 deemed to have waived the exhaustion requirement unless the state, through counsel, expressly 24 waives the requirement. 28 U.S.C. § 2254(b)(3). Exhaustion of state remedies requires that 25 petitioners fairly present federal claims to the highest state court, either on direct appeal or 26 through state collateral proceedings, in order to give the highest state court “the opportunity to 1 Dockets.Justia.com 1 pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 2 U.S. 364, 365 (1995) (some internal quotations omitted). 3 Where a petition contains both unexhausted and exhausted claims, the petition must be 4 dismissed with leave to amend to allow the petitioner to file an amended petition stating only 5 exhausted claims (either by exhausting the previously unexhausted claims prior to filing the 6 amended petition or by deleting the unexhausted claims from the petition). Rose v. Lundy, 455 7 U.S. 509, 522 (1982); Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981. 986 (9th Cir. 1998); 8 James v. Giles, 221 F.3d 1074, 1077 (9th Cir. 2000). Alternatively, the petitioner may seek a 9 stay of the federal proceedings while he attempts to exhaust the unexhausted claims. King v. 10 Ryan, 564 F.3d 1133 (9th Cir. 2009). 11 II. Propriety of Stay 12 A court may stay a petition and hold it in abeyance pursuant to either Kelly v. Small, 315 13 F.3d 1063 (9th Cir. 2003), or Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 14 (1995). King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Kelly and Rhines set out different 15 procedures and impose different requirements for obtaining a stay. Under Kelly, the court may 16 stay a petition containing only exhausted claims while allowing the petitioner to proceed to state 17 court to exhaust additional claims. Id. (citing Kelly, 315 F.3d at 1070-71). Once the additional 18 claims have been exhausted, the petitioner may amend his petition to add them to the original 19 petition, provided that the claims are not time-barred (as a stay pursuant to Kelly does not toll the 20 federal limitations period with respect to the unexhausted claims). Id. at 1135, 1140-41. The 21 court may deny a request for stay under Kelly if the new claims cannot be added to the existing 22 habeas petition after they are exhausted in state court due to the time-bar. See id. at 1141. 23 Under Rhines, a court may stay a “mixed” petition, i.e., one containing both exhausted 24 and unexhausted claims, to allow a petitioner to present unexhausted claims to the state courts. 25 Rhines, 544 U.S. at 277. Such a stay “eliminates entirely any limitations issue with regard to the 26 originally unexhausted claims, as the claims remain pending in federal court[.]” King, 564 F.3d 2 1 at 1140. To qualify for a stay under Rhines, however, a petitioner must: (1) show good cause for 2 his failure to exhaust all his claims before filing this action; (2) explain and demonstrate how his 3 unexhausted claim is potentially meritorious; (3) describe the status of any pending state court 4 proceedings on his unexhausted claim; and (4) explain how he has diligently pursued his 5 unexhausted claim. Rhines, 544 U.S. at 277-78. The Kelly procedure, which has remained 6 available after Rhines, does not require a showing of good cause. King, 564 F.3d at 1140. 7 Petitioner identifies a single, broadly-stated issue that he seeks to exhaust – “ineffective 8 assistance of council [sic] re both my trial and my appellate attorneys.” This issue is not 9 contained in the petition’s list of claims (although it is mentioned elsewhere in the petition as 10 unexhausted). Thus the petition may raise only exhausted claims (a point not conceded by 11 respondent) and be amenable to the less-burdensome Kelly procedure, provided petitioner’s 12 unexhausted claim is timely. 13 Petitioner’s judgment became final on direct review 90 days from the California Supreme 14 Court’s denial of review of his case, when the time for petitioning the U.S. Supreme Court for 15 certiorari expired, provided that petitioner did not seek U.S. Supreme Court certiorari. Bowen v. 16 Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). As the California Supreme Court denied review 17 on November 10, 2009 (Docket No. 17, Exhibit 1), petitioner had until February 8, 2010 to seek 18 review in the U.S. Supreme Court, which he apparently did not do. See Dckt. No. 1 at 2 (portion 19 of form habeas petition asking whether petition for certiorari was filed in the U.S. Supreme 20 Court left blank). He had one year from that date to timely file his federal habeas claims. 21 It is now mid-2011. Thus, even if the court were to grant a stay under Kelly and 22 petitioner were to amend his petition after exhaustion to state the additional claim, the additional 23 claim is time-barred unless it shares a “common core of operative facts with the claims in the 24 pending petition” or tolling of the limitations period is warranted for some reason. King, 564 25 F.3d at 1141 (internal quotation marks omitted). Because petitioner has not provided sufficient 26 information for the court to determine whether the claim he wishes to exhaust is timely, and thus 3 1 the court cannot determine whether a stay would be futile, the undersigned recommends that the 2 court decline to exercise its discretion to stay the petition under the Kelly procedure. 3 As for Rhines, petitioner has not made the showing required. Petitioner states simply that 4 the ineffective assistance claim was not raised earlier because it was “not properly raised as issue 5 nor federalized by appellant attorney.” Dckt. No. 1 at 5. However, a mere allegation of 6 ineffective assistance of counsel as excuse for failure to exhaust does not amount to good cause. 7 See, e.g., Meredith v. Lopez, No. 2:10-cv-1395 JFM (HC), 2011 U.S. Dist. LEXIS 70772, at *9- 8 10 (E.D. Cal. June 30, 2011) and cases cited therein. Petitioner has raised no argument 9 regarding the three additional Rhines factors listed above. 10 11 III. Recommendation Because petitioner has not shown that a stay would be appropriate in this case under 12 either the Kelly or Rhines procedures, the undersigned recommends that petitioner’s February 9, 13 2011 motion for stay (Docket No. 3) be denied without prejudice. Should the recommendation 14 be adopted by the District Court, petitioner may again seek a stay of these proceedings by filing 15 a renewed motion for stay that shows either that a stay is warranted under Kelly (because his 16 petition contains only exhausted claims and his unexhausted claims are not time-barred) or that a 17 stay is warranted under Rhines (because the unexhausted claims in the petition were not 18 exhausted prior to filing for good cause and are potentially meritorious, and describing the status 19 of any pending state court proceedings on his unexhausted claims and how petitioner has 20 diligently pursued those claims). 21 22 Accordingly, it is hereby RECOMMENDED that petitioner’s motion for stay, Dckt. No. 3, be denied. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 4 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Turner v. 3 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: August 31, 2011. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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