Orozco v. Harrington
Filing
15
ORDER DENYING 12 Motion to Dismiss; ORDER REQUIRING Petitioner to File Amended Petition signed by Magistrate Judge Michael J. Seng on 5/23/2011. Amended Petition due by 6/15/2011. (Attachments: # 1 2254 Petition)(Sant Agata, S)
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
EASTERN DISTRICT OF CALIFORNIA
11
12
VALDO C. OROZCO,
Petitioner,
13
14
v.
15
16
KELLY HARRINGTON, Warden,
17
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
1:10-cv-01599 MJS HC
ORDER DENYING MOTION TO DISMISS
ORDER REQUIRING PETITIONER TO FILE
AMENDED PETITION
18
19
Petitioner is a state prisoner proceeding pro se and in forma pauperis with an
20
application for writ of habeas corpus under 28 U.S.C. § 2254. Respondent has filed a motion
21
to dismiss. Respondent argues that Petitioner failed to exhaust his claim that his trial counsel
22
was ineffective because she advised him to avoid a probation officer's report. Respondent
23
concedes that Petitioner's other claims were properly exhausted. Respondent thus argues that
24
the court should dismiss without prejudice this "mixed" petition of exhausted and unexhausted
25
claims.
26
I.
LEGAL STANDARD
27
The exhaustion of available state remedies is a prerequisite to a federal court's
28
consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455
-1-
1
U.S. 509, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982); 28 U.S.C. § 2254(b). A petitioner satisfies
2
the exhaustion requirement by providing the highest state court with a full and fair opportunity
3
to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S.
4
270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th
5
Cir. 1985).
6
II.
ANALYSIS
7
Petitioner, recognizing that one of his claims is not exhausted, has responded to the
8
motion to dismiss with a request to stay this case and hold it in abeyance while he attempts
9
to exhaust his claim in state court. He states that he is an unrepresented litigant who made
10
an omission in not exhausting the claim, and that he has filed a petition with the California
11
Supreme Court to attempt to do so. (Obj. at 2, ECF No. 14.) Petitioner requests his federal
12
petition be stayed. (Id.)
13
A.
Stay and Abayance
14
A court may stay a petition and hold it in abeyance pursuant to either Kelly v. Small, 315
15
F.3d 1063 (9th Cir. 2003), or Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d
16
440 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Kelly and Rhines set out
17
different procedures and requirements for imposing a stay. Under Kelly, the petitioner amends
18
his petition to delete any unexhausted claims. The court then stays and holds in abeyance the
19
amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state
20
court to exhaust the deleted claims. Id. (citing Kelly, 315 F.3d at 1070-71.) Later, the petitioner
21
amends his petition to add the newly-exhausted claims to the original petition. Id. Under
22
Rhines, a petitioner must meet three pre-conditions for a stay of a mixed petition: (1) a finding
23
of good cause for petitioner's failure to exhaust all his claims before filing his habeas action;
24
(2) a finding that the unexhausted claims are potentially meritorious; and (3) no indication that
25
the petitioner engaged in intentionally dilatory tactics. Rhines, 544 U.S. at 278. If all three
26
preconditions exist, the court should stay the habeas case and hold it in abeyance, leaving the
27
mixed petition intact while the petitioner returns to state court to present his unexhausted
28
claims.
-2-
1
Rhines does not go into detail as to what constitutes good cause for failure to exhaust,
2
and the Ninth Circuit has provided no clear guidance beyond holding that the test is less
3
stringent than an "extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d 654,
4
661-62 (9th Cir. 2005). Several district courts have concluded that the standard is more
5
generous than the showing needed for "cause" to excuse a procedural default. See, e.g.,
6
Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (applying the Supreme Court's
7
mandate on remand). This view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct.
8
1807, 161 L. Ed. 2d 669 (2005), where the Supreme Court acknowledged that a petitioner's
9
"reasonable confusion" about the timeliness of his federal petition would generally constitute
10
good cause for his failure to exhaust state remedies before filing his federal petition. 544 U.S.
11
at 416-17.
12
However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit ruled
13
that petitioner did not show good cause by arguing that he was "under the impression" that his
14
counsel had raised all claims before the state court of appeal. Wooten, 540 F.3d at 1024. The
15
Ninth Circuit explained that finding good cause in that argument "would render stay-and-abey
16
orders routine" and "would run afoul of Rhines and its instruction that district courts should only
17
stay mixed petitions in 'limited circumstances.'" Wooten, 540 F.3d at 1024.
18
Petitioner's excuse for his failure to exhaust is similar to the excuse the Ninth Circuit
19
rejected in Wooten. Thus, this Court is bound to find that he has not shown good cause for a
20
stay under Rhines. However, the Kelly procedure, which has remained available even after
21
the Supreme Court's ruling in Rhines, does not require a showing of good cause. King, 564
22
F.3d at 1140. The Court must still deny a request for a stay and abeyance under Kelly if the
23
new claims are facially without merit and therefore cannot be added to the existing habeas
24
petition after they are exhausted in state court. King, 564 F.3d at 1141.
25
The Court finds that this petitioner's sole unexhausted claim - that trial counsel was
26
ineffective because she advised Petitioner to avoid a probation officer's report - presents, at
27
this stage, a facially meritorious claim. Under the Kelly procedure, Petitioner should have the
28
-3-
1
opportunity to file an amended petition that does not include his unexhausted claim.1 If he
2
does so, the Court will impose a stay to allow him to exhaust the deleted claim in state court.
3
If he chooses not to amend his petition, the Court will deny his motion to stay and dismiss the
4
petition without prejudice for failure to exhaust all claims, with leave to file an amended
5
petition. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000). Petitioner is forewarned
6
that such a dismissal may adversely affect the timeliness of the petition in relation to the one
7
year statute of limitations under the Antiterrorism and Effective Death Penalty Act.
8
III.
IT IS THEREFORE ORDERED that Petitioner has twenty (20) days from the entry of
9
10
CONCLUSION AND ORDER
this order in which to file an amended, fully exhausted petition.
11
12
13
14
15
16
IT IS SO ORDERED.
17
Dated:
ci4d6
May 23, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28
1
The Court adm onishes Petitioner to fam iliarize him self with Local Rule 220, which governs the
am endm ent of pleadings. If he chooses to file an am ended com plaint, the Court will exam ine it according to the
sam e screening standards that applied to his original petition. In addition, Petitioner is inform ed that the Court
cannot refer to a prior pleading in order to m ake Petitioner's am ended petition com plete. Local Rule 220 requires
that an am ended pleading be com plete in itself, without reference to any prior pleading. See Loux v. Rhay, 375
F.2d 55, 57 (9th Cir. 1967) (As general rule, an am ended com plaint or petition supersedes the original.).
-4-
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?