(HC) Prince v. Ramsey, No. 2:2020cv01962 - Document 21 (E.D. Cal. 2021)

Court Description: ORDER signed by Magistrate Judge Kendall J. Newman on 4/19/2021 VACATING the 16 Findings and Recommendations filed on 1/27/2021. Within 30 days, petitioner shall inform the court whether he intends to raise the claims raised in his state app eal in the instant action; if petitioner intends to raise the claims raised in his state appeal in the instant action, within 30 days, petitioner shall file a motion to stay this action; if the motion to stay is made pursuant to Rhines v. Weber, petitioner shall also file an amended petition raising his exhausted and unexhausted claims. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SWANK PRINCE, 12 Petitioner, 13 14 v. No. 2: 20-cv-1962 TLN KJN P ORDER MICHAEL RAMSEY, 15 Respondent. 16 17 Petitioner is proceeding, without counsel, with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The petition raises two claims: 1) ineffective assistance of 19 counsel; and 2) violation of Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 1.) 20 On January 27, 2021, the undersigned recommended that this action be dismissed for lack 21 of jurisdiction. (ECF No. 16.) The undersigned found that petitioner was not “in custody” under 22 the at-issue conviction because he was not sentenced. See Maleng v. Cook, 490 U.S. 488, 490-91 23 (1989). In his objections, filed February 16, 2021, petitioner alleges that he has now been 24 sentenced. (ECF No. 19.) Good cause appearing, the January 27, 2021 findings and 25 recommendations are vacated because petitioner appears to meet the “in custody” requirement for 26 habeas jurisdiction. 27 28 The petition indicates that petitioner’s claims were raised in habeas corpus petitions filed in the Butte County Superior Court and the California Court of Appeal. (ECF No. 1 at 3, 4.) 1 1 Petitioner later informed the court that he filed a habeas corpus petition raising his claims in the 2 California Supreme Court. (ECF No. 11.) Records from the California Supreme Court reflect 3 that on February 10, 2021, the California Supreme Court denied petitioner’s habeas corpus 4 petition. Therefore, the claims raised in the petition appear to be exhausted. 5 Records from the Butte County Superior Court and California Court of Appeal reflect that 6 petitioner filed a notice of appeal regarding the at-issue criminal conviction, i.e., California Court 7 of Appeal case no. C093531. This appeal is now pending. 8 9 Within thirty days of the date of this order, petitioner shall inform the court whether he intends to raise the claims raised in his state appeal in the instant action. If petitioner intends to 10 raise these unexhausted claims in the instant action, petitioner shall file a motion to stay this 11 action pending the exhaustion of these unexhausted claims. 1 12 Two procedures may be used in staying a petition — one provided for by Kelly v. Small, 13 315 F.3d 1063 (9th Cir. 2002), and the other by Rhines v. Weber, 544 U.S. 269 (2005). King v. 14 Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009). Under the Kelly procedure, the district court may 15 stay a petition containing only exhausted claims and hold it in abeyance pending exhaustion of 16 additional claims which may then be added to the petition through amendment. Kelly, 315 F.3d 17 at 1070-71; King, 564 F.3d at 1135. If the federal petition contains both exhausted and 18 unexhausted claims (a so-called “mixed” petition), a petitioner seeking a stay under Kelly must 19 first dismiss the unexhausted claims from the petition and seek to add them back in through 20 amendment after exhausting them in state court. King, 564 F.3d at 1138-39. The previously 21 unexhausted claims, once exhausted, must be added back into the federal petition within the 22 statute of limitations provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140- 23 41. Under that statute, a one-year limitation period for seeking federal habeas relief begins to run 24 from the latest of the date the judgment became final on direct review, the date on which a state- 25 created impediment to filing is removed, the date the United States Supreme Court makes a new 26 27 28 1 Petitioner is informed that if he later files a separate federal habeas petition raising additional claims, it may be denied as an improper second or successive habeas petition. See 28 U.S.C. § 2244(b). 2 1 rule retroactively applicable to cases on collateral review or the date on which the factual 2 predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. 3 § 2241(d)(1). A federal habeas petition does not toll the limitations period under 28 U.S.C. 4 § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001). 5 Under Rhines, a district court may stay a mixed petition in its entirety, without requiring 6 dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court. 7 King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the 8 petitioner show good cause for failing to exhaust the claims in state court prior to filing the 9 federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant 10 to Rhines is inappropriate where the unexhausted claims are “plainly meritless” or where the 11 petitioner has engaged in “abusive litigation tactics or intentional delay.” Id. 12 13 If petitioner seeks a stay of this action pursuant to Rhines, he shall file a petition raising all of his claims, unexhausted and exhausted. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. The January 27, 2021 findings and recommendations are vacated; 16 2. Within thirty days of the date of this order, petitioner shall inform the court whether he 17 intends to raise the claims raised in his state appeal in the instant action; if petitioner 18 intends to raise the claims raised in his state appeal in the instant action, within thirty 19 days of the date of this order, petitioner shall file a motion to stay this action; if the 20 motion to stay is made pursuant to Rhines v. Weber, petitioner shall also file an 21 amended petition raising his exhausted and unexhausted claims. 22 Dated: April 19, 2021 23 24 25 Pr1962.ord(2) 26 27 28 3

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