Bernice Davis v. The People

Filing 7

MINUTES (IN CHAMBERS) ORDER by Magistrate Judge Rozella A. Oliver. In light of the foregoing, the Court hereby WITHDRAWS its April 18, 2016 Order. Petitioner shall have an opportunity to address the exhaustion issue by electing one of the three a vailable options: *See Order* The Court ORDERS Petitioner to file a response on or before June 19, 2016, specifically stating which of the three options she wishes to pursue. If Petitioner selects Option Two, Petitioner may use the attached No tice of Dismissal form and fill it out accordingly. If Petitioner selects Option Three, Petitioner must file a declaration, signed under penalty of perjury, selecting a stay pursuant to Rhines. In her declaration, Petitioner must set forth good cause for her failure to exhaust her claims, explain that the claims are not plainly meritless, and explain that she has not engaged in intentional delay tactics. (Attachments: # 1 Notice of Dismissal (CV-09)) (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.:
Title:

CV 16-2347 PA (RAO)
Bernice Davis v. People

Present:

Date:

May 19, 2016

The Honorable ROZELLA A. OLIVER, U.S. MAGISTRATE JUDGE
Gay Roberson
Deputy Clerk

N/A
Court Reporter / Recorder

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

N/A

N/A

Proceedings:

(In Chambers)

On April 1, 2016, Petitioner Bernice Davis’ (“Petitioner”) Petition for Writ of Habeas
Corpus by a Person in State Custody (the “Petition”) was filed with the Court. On April 18,
2016, the Court issued an Order, inter alia, notifying Petitioner that all of her claims in the
Petition appeared to be unexhausted and directed Petitioner to show cause in writing by May 6,
2016, why this action should not be dismissed for failure to exhaust the claims alleged in the
Petition. (Dkt. No. 6.)
However, it has come to the Court’s attention that prior to the Court’s April 2016 Order,
the Court of Appeals for the Ninth Circuit issued a decision in Mena v. Long, 813 F.3d 907 (9th
Cir. 2016), clarifying that a district court may stay habeas petitions that are wholly unexhausted
pursuant to Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).
In light of the foregoing, the Court hereby WITHDRAWS its April 18, 2016 Order.
Petitioner shall have an opportunity to address the exhaustion issue by electing one of the three
available options:
Option 1: If Petitioner contends that she has in fact exhausted her state court remedies
on any or all of the claims in her Petition, she should clearly explain this in a response to this
Order. Petitioner should attach to her response, copies of any documents establishing that her
claims in the Petition are indeed exhausted.
Option 2: Petitioner may request a voluntary dismissal of this action without prejudice
pursuant to Federal Rule of Civil Procedure 41(a). However, Petitioner is advised that any
dismissed claims may be later subject to the statute of limitations under 28 U.S.C. § 2244(d)(1).
As amended by the AEDPA, “[a] 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State court.”

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CIVIL MINUTES - GENERAL

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.:
Title:

CV 16-2347 PA (RAO)
Bernice Davis v. People

Date:

May 19, 2016

Option 3: Petitioner may request a stay of her Petition pursuant to Rhines. To obtain a
Rhines stay, Petitioner is required to make a showing of good cause for her failure to exhaust her
claims in state court, that the claims are not “plainly meritless,” and that Petitioner has not
engaged in intentional delay tactics. See Rhines, 544 U.S. at 277-78. Petitioner should promptly
initiate exhaustion proceedings in the state court without waiting for a ruling from this Court on
her motion for a Rhines stay. Petitioner may file a state habeas petition before the California
Supreme Court that contains the unexhausted claims and explain why Petitioner failed to present
her claims previously.
The Court ORDERS Petitioner to file a response on or before June 19, 2016,
specifically stating which of the three options she wishes to pursue.
If Petitioner selects Option Two, Petitioner may use the attached Notice of Dismissal
form and fill it out accordingly.
If Petitioner selects Option Three, Petitioner must file a declaration, signed under
penalty of perjury, selecting a stay pursuant to Rhines. In her declaration, Petitioner must
set forth good cause for her failure to exhaust her claims, explain that the claims are not
plainly meritless, and explain that she has not engaged in intentional delay tactics.
IT IS SO ORDERED.
Attachment

Initials of Preparer

CV-90 (05/15)

CIVIL MINUTES - GENERAL

:
gr

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