Jacobs v. Hubbard

Filing 10

ORDER DISCHARGING 6 Order to Show Cause; ORDER DENYING 9 Petitioner's Motion to Stay the Petition Pursuant to Rhines v. Weber; ORDER GRANTING Petitioner Thirty (30) Days to Withdraw Petitioner's Unexhausted Claims and Seek a Kelly Stay; and INFORMATIONAL ORDER to Petitioner Concerning Dismissal if Unexhausted Claims are Not Withdrawn, signed by Magistrate Judge Sheila K. Oberto on 8/23/2011. (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GEORGE JACOBS IV,

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Petitioner,
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v.
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SUSAN HUBBARD, Warden, et al.,)
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Respondents.
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1:11-cv—00934-SKO-HC
ORDER DISCHARGING ORDER TO SHOW
CAUSE (DOC. 6)
ORDER DENYING PETITIONER’S MOTION
TO STAY THE PETITION PURSUANT TO
RHINES v. WEBER (Doc. 9)
ORDER GRANTING PETITIONER THIRTY
(30) DAYS FROM THE DATE OF
SERVICE OF THIS ORDER TO WITHDRAW
PETITIONER’S UNEXHAUSTED CLAIMS
AND SEEK A KELLY STAY (Doc. 9)

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INFORMATIONAL ORDER TO PETITIONER
CONCERNING DISMISSAL IF
UNEXHAUSTED CLAIMS ARE NOT
WITHDRAWN

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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 636(c)(1),

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Petitioner has consented to the jurisdiction of the United States
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Magistrate Judge to conduct all further proceedings in the case,
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including the entry of final judgment, by manifesting consent in
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a signed writing filed by Petitioner on June 17, 2011 (doc. 5).
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Pending before the Court is Petitioner’s motion for a stay and
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abeyance of the action to permit exhaustion of claims in state

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court, or, in the alternative, for leave to amend the petition to

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withdraw unexhausted claims, which was filed on July 19, 2011.

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I.

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On July 19, 2011, Petitioner filed a timely response to the

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Discharge of the Order to Show Cause

Court’s order to show cause that issued on June 20, 2011.

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Accordingly, the order to show cause will be discharged.

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II.

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Preliminarily, the Court notes Petitioner’s references to

Motion for Stay and Abeyance

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the jurisdiction of this Court to proceed to consider his claims

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in the absence of objection by Respondent.

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However, Petitioner does not suggest that the Court proceed to

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consider the unexhausted claims.

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screening obligation, initially described in the order to show

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cause.

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(Mot., doc. 9, 3.)

The Court reiterates its

(Doc. 6, 1-2.)

Petitioner concedes that as to the following two claims,

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state court remedies are unexhausted:

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term imposed on count 4, possession of a deadly and dangerous

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weapon by an inmate in violation of Cal. Pen. Code § 4502(a),

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must be stayed because the evidence failed to demonstrate that

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Petitioner possessed a sharp instrument at any time other than

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when he assaulted and battered correctional officers; and 2) the

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trial court abused it discretion by imposing a consecutive

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sentence on count 6, aggravated assault while serving a life

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sentence in violation of Cal. Pen. Code § 4500, instead of

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imposing a concurrent term.

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1) a concurrent prison

(Mot., 3.)

Petitioner thus seeks a stay of the action in order to
exhaust state court remedies as to the two unexhausted claims,
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or, in the alternative, leave to file an amended petition from

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which the unexhausted claims have been deleted, pursue state

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court remedies, and amend the petition again once the claims have

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been exhausted.

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that the two unexhausted claims were not raised by his appellate

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counsel; Petitioner was unaware of counsel’s failure to present

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the claims or of the claims themselves because of ignorance of

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the rules of criminal practice, but he seeks to avoid forfeiture

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of the claims that might result from the operation of the statute

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of limitations.

Petitioner declares under penalty of perjury

(Mot. 3, 6.)

Because the petition was filed after April 24, 1996, the

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effective date of the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA), the AEDPA applies to the petition.

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Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d

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1484, 1499 (9th Cir. 1997).

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Lindh v.

A district court has discretion to stay a petition which it

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may validly consider on the merits.

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269, 276 (2005);

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2009).

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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F.3d 1133, 1138-41 (9th Cir. 2009).

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Rhines v. Weber, 544 U.S.

King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.

A petition may be stayed either under Rhines, or under
King v. Ryan, 564

Under Rhines, the Court has discretion to stay proceedings;

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however, this discretion is circumscribed by the Antiterrorism

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and Effective Death Penalty Act of 1996 (AEDPA).

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U.S. at 276-77.

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abeyance [is] available only in limited circumstances” and “is

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only appropriate when the district court determines there was

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good cause for the petitioner’s failure to exhaust his claims

Rhines, 544

In light of AEDPA’s objectives, “stay and

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first in state court.”

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petition pursuant to Rhines is required only if 1) the petitioner

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has good cause for his failure to exhaust his claims in state

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court; 2) the unexhausted claims are potentially meritorious; and

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3) there is no indication that the petitioner intentionally

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engaged in dilatory litigation tactics.

Id. at 277-78.

A stay of a mixed

Id.

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A petition may also be stayed pursuant to the procedure set

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forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003).

Under this three-step procedure: 1) the petitioner

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files an amended petition deleting the unexhausted claims; 2) the

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district court stays and holds in abeyance the fully exhausted

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petition; and 3) the petitioner later amends the petition to

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include the newly exhausted claims.

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1133, 1135 (9th Cir. 2009).

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allowed if the additional claims are timely.

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See, King v. Ryan, 564 F.3d

However, the amendment is only
Id. at 1140-41.

The Supreme Court has not articulated what constitutes good

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cause under Rhines, but has stated that “[a] petitioner's

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reasonable confusion about whether a state filing would be timely

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will ordinarily constitute ‘good cause’ for him to file” a

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“protective” petition in federal court.

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U.S. 408, 416 (2005).

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standard is less stringent than that for good cause to establish

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equitable tolling, which requires that extraordinary

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circumstances beyond a petitioner's control be the proximate

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cause of any delay.

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Cir. 2005).

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stay-and-abeyance should be available only in limited

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circumstances.”

Pace v. DiGuglielmo, 544

The Ninth Circuit has held that the

Jackson v. Roe, 425 F.3d 654, 661-62 (9th

The Ninth Circuit has recognized, however, that “a

Id. at 661 (internal quotation marks omitted);
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see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008),

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cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276

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(2009) (concluding that a petitioner’s impression that counsel

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had exhausted a claim did not demonstrate good cause).

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principles of Rhines must be applied with an eye toward the

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AEDPA’s dual purposes of reducing delays in executing state and

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federal criminal sentences and streamlining federal habeas

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proceedings by increasing a petitioner’s incentive to exhaust all

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claims in state court.

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The

Wooten v. Kirkland, 540 F.3d at 1024.

In Wooten, the petitioner’s reliance on appellate counsel to

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raise issues was held not to constitute good cause because if

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such a circumstance were sufficient to warrant relief, the

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purposes of the exhaustion requirement would be undermined by

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routine stays.

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of reliance on counsel as well as ignorance of the law.

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Petitioner’s showing constituted good cause, then relief under

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Rhines would conceivably be available in almost all cases.

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However, the Court has stated that such a stay should be granted

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in only limited circumstances.

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78.

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The present case presents similar justifications
If

Rhines v. Weber, 544 U.S. at 277-

Accordingly, although it appears that Petitioner’s claims

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are potentially meritorious, and there is no indication that the

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petitioner intentionally engaged in dilatory litigation tactics,

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it is concluded that Petitioner has failed to show good cause.

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Thus, Petitioner’s request for a stay pursuant to Rhines will be

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denied.

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The Court can stay the petition pursuant to the procedure

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set forth in Kelly v. Small.1

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opportunity to withdraw the two unexhausted claims in his

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petition and to have the fully exhausted petition stayed pending

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exhaustion of the other claims in state court.

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dismiss the petition without prejudice unless Petitioner

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withdraws the unexhausted claims and proceeds with the exhausted

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claims in lieu of suffering dismissal.

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III.

Petitioner will be given an

The Court must

Disposition

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Accordingly, it is hereby ORDERED that:

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1)

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DISCHARGED; and

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The order to show cause issued on June 20, 2011, is

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Petitioner motion for a stay of the instant petition

pursuant to Rhines v. Weber is DENIED; and

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Petitioner is GRANTED thirty (30) days from the date of

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service of this order to file a motion to withdraw the

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unexhausted claims and to seek a stay of the fully exhausted

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petition.

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the Court will assume Petitioner desires to return to state court

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to exhaust the unexhausted claims and will therefore dismiss the

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In the event Petitioner does not file such a motion,

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It is unclear whether Petitioner will have sufficient time to be able
to exhaust his unexhausted claims. However, no statute of limitations
protection is imparted in a King/Kelly stay, nor are the exhausted claims
adjudicated in this Court during the pendency of such a stay. Further, the
undersigned is not making any determination at this time that Petitioner can
timely exhaust any claims prior to the expiration of the statute of
limitations.

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entire petition without prejudice.2

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IT IS SO ORDERED.

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Dated:
ie14hj

August 23, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Petitioner is informed that a dismissal for failure to exhaust will
not itself bar him from returning to federal court after exhausting his
available state remedies. However, this does not mean that Petitioner will
not be subject to the one-year statute of limitations imposed by 28 U.S.C. §
2244(d). Although the limitations period is tolled while a properly filed
request for collateral review is pending in state court, 28 U.S.C. §
2244(d)(2), it is not tolled for the time an application is pending in federal
court. Duncan v. Walker, 533 U.S. 167, 172 (2001).
Petitioner is further informed that the Supreme Court has held in
pertinent part:
[I]n the habeas corpus context it would be appropriate
for an order dismissing a mixed petition to instruct an
applicant that upon his return to federal court he is to
bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a)
and (b). Once the petitioner is made aware of the exhaustion
requirement, no reason exists for him not to exhaust all potential
claims before returning to federal court. The failure to comply
with an order of the court is grounds for dismissal with prejudice.
Fed. Rules Civ. Proc. 41(b).
Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is
forewarned that in the event he returns to federal court and files a mixed
petition of exhausted and unexhausted claims, the petition may be dismissed
with prejudice.

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