Jacobs v. Hubbard

Filing 14

ORDER Granting Petitioner's Motion to Amend the Petition to Withdraw Unexhausted Claims 13 ; ORDER Granting Petitioner's Motion for Stay and Abeyance 13 and Staying the Proceedings Pending Exhaustion of State Court Remedies; ORDER Directing Petitioner to File Status Reports Every Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 12/9/11. (Gonzalez, R)

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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 GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION TO
WITHDRAW UNEXHAUSTED CLAIMS
(DOC. 13)
ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE
(DOC. 13) AND STAYING THE
PROCEEDINGS PENDING EXHAUSTION OF
STATE COURT REMEDIES

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ORDER DIRECTING PETITIONER TO
FILE STATUS REPORTS EVERY THIRTY
(30) DAYS

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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.

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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, filed on October

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3, 2011, to withdraw the unexhausted claims in the petition and

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for a stay and abeyance of the fully exhausted petition pending

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exhaustion of state court remedies as to the withdrawn claims.

Pursuant to 28 U.S.C. § 636(c)(1),

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I.

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Petitioner alleges four claims in the petition: 1) with

Motion to Withdraw Unexhausted Claims

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respect to Petitioner’s conviction in count two of battery by a

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prisoner on a non-confined person in violation of Cal. Pen. Code

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§ 4501.5, the evidence failed to establish that Petitioner

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wilfully touched the victim in a harmful offensive manner; 2) a

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concurrent prison term imposed on count four, possession of a

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deadly and dangerous weapon by an inmate in violation of Cal.

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Pen. Code § 4502(a), must be stayed because the evidence failed

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to demonstrate that Petitioner possessed a sharp instrument at

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any time other than when assaulted and battered correctional

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officers; 3) the trial court abused its discretion by imposing a

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consecutive sentence on count six, aggravated assault while

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serving a life sentence in violation of Cal. Pen. Code § 4500,

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instead of imposing a concurrent term; and 4) Petitioner’s

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sentence constituted cruel and unusual punishment under the state

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and federal constitutions.

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(Pet. 6-9.)

Petitioner conceded that he did not exhaust state court

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remedies as to his second claim concerning the absence of

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evidence to demonstrate Petitioner’s possession of a sharp

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instrument, and as to his third claim concerning the consecutive

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term.

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24, 2011, Petitioner has moved in accordance with the Court’s

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order to withdraw the unexhausted claims and to stay the

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proceedings on the fully exhausted claims pending exhaustion of

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state court remedies.

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(Doc. 9, 3.)

In response to the Court’s order of August

Accordingly, Petitioner’s motion to amend the petition to
withdraw the unexhausted claims will be granted.
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II.

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Petitioner moves to stay the petition pursuant to Kelly v.

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Motion for Stay of the Proceedings

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

In the three-step procedure under Kelly, 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.

In this case, Petitioner meets the qualifications for a

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Kelly stay.

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have been withdrawn.

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exhausted, and the first step of the Kelly procedure is complete.

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The petition contained two unexhausted claims which
Thus, the instant petition is already

Therefore, the Court will stay the proceedings according to

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the second step of the Kelly procedure.

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instructed to file status reports of his progress through the

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state courts.

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opinion, provided the opinion is a denial of relief, Petitioner

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must file an amended petition including all of his exhausted

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claims.

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untimely if they do not comport with the statute of limitations

Petitioner will be

Once the California Supreme Court renders its

Petitioner is forewarned that claims may be precluded as

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set forth in 28 U.S.C. § 2244(d).1

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III.

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Accordingly, it is ORDERED that:

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1)

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Disposition

Petitioner’s motion to amend the petition to withdraw

the unexhausted claims is GRANTED; and

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2) Petitioner’s motion for stay of the proceedings is

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GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003); and

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3) The proceedings are STAYED pending exhaustion of state
remedies; and

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4) Petitioner is DIRECTED to file a status report of his

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progress in the state courts within thirty (30) days, and then

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every thirty (30) days thereafter until exhaustion is complete;

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and

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5) Within thirty (30) days after the final order of the

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California Supreme Court, Petitioner MUST FILE an amended

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petition in this Court including all exhausted claims.

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Petitioner is forewarned that failure to comply with this
Order will result in the Court’s vacating the stay.

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IT IS SO ORDERED.

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Dated:
ie14hj

December 9, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Petitioner states in his motion that the statute of limitations should
not bar Petitioner’s return to this Court with the newly exhausted claims.
(Doc. 13, 2-3.) In this regard, the Court notes that 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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