Lara v. Biter

Filing 8

ORDER GRANTING Stay of Petition for Writ of Habeas Corpus 7 , signed by Magistrate Judge Michael J. Seng on 5/6/13. (Hellings, J)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
12

DANIEL F. LARA,
Petitioner,

13
14
v.
15
16
17

MARTIN D. BITER, Warden,
Respondent.

)
)
)
)
)
)
)
)
)
)
)
)

1:13-cv-00354 MJS HC
ORDER GRANTING STAY OF PETITION
FOR WRIT OF HABEAS CORPUS

(Doc. 7)

18
19

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

20

pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge jurisdiction under

21

28 U.S.C. § 636(c). (ECF No. 7.)

22

Petitioner was convicted of attempted murder and assault with a firearm and sentenced

23

to 35 years to life in state prison. (See Pet.) He appealed his conviction to the California Court

24

of Appeal, Fifth Appellate District and to the California Supreme Court which affirmed the

25

judgment to the above referenced counts. (Id. at 2-3.) Petitioner subsequent petitions for writ

26

of habeas corpus in the California Courts were denied. (Id.)

27

On March 12, 2013, Petitioner filed the instant petition. On March 27, 2013, Petitioner

28

filed a motion to stay the petition. (Mot. to Stay, ECF No. 7.) Petitioner requests the Court stay
-1-

1

his petition while he returns to state court to exhaust additional claims for insufficient evidence

2

and ineffective assistance of counsel. For the reasons explained below, Petitioner's motion to

3

stay must be granted.

4

I.

LEGAL STANDARD

5

The exhaustion of available state remedies is a prerequisite to a federal court's

6

consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy, 455

7

U.S. 509, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982); 28 U.S.C. § 2254(b). A petitioner satisfies

8

the exhaustion requirement by providing the highest state court with a full and fair opportunity

9

to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S.

10

270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th

11

Cir. 1985).

12

II.

ANALYSIS

13

Petitioner has requested to stay this case and hold it in abeyance to allow him to

14

attempt to exhaust additional claims in state court. Petitioner states in his motion to stay that

15

he plans to file a state petition to begin the process of exhausting his new state claims. (See

16

ECF No. 7.) However, Petitioner has not provided any information on when his state petition

17

shall be filed.

18

A.

Stay and Abayance

19

A court may stay a petition and hold it in abeyance pursuant to either Kelly v. Small, 315

20

F.3d 1063 (9th Cir. 2002), or Rhines v. Weber, 544 U.S. 269 (2005). See King v. Ryan, 564

21

F.3d 1133, 1135 (9th Cir. 2009). Kelly and Rhines set out different procedures and

22

requirements for imposing a stay. Under Kelly, the petitioner amends his petition to delete any

23

unexhausted claims. The court then stays and holds in abeyance the amended, fully

24

exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust

25

the deleted claims. Id. (citing Kelly, 315 F.3d at 1070-71.) Later, the petitioner amends his

26

petition to add the newly-exhausted claims to the original petition. Id. Under Rhines, a

27

petitioner must meet three pre-conditions for a stay of a mixed petition: (1) a finding of good

28

cause for petitioner's failure to exhaust all his claims before filing his habeas action; (2) a
-2-

1

finding that the unexhausted claims are potentially meritorious; and (3) no indication that the

2

petitioner engaged in intentionally dilatory tactics. Rhines, 544 U.S. at 278. If all three

3

preconditions exist, the court should stay the habeas case and hold it in abeyance, leaving the

4

mixed petition intact while the petitioner returns to state court to present his unexhausted

5

claims.

6

Rhines does not go into detail as to what constitutes good cause for failure to exhaust,

7

and the Ninth Circuit has provided no clear guidance beyond holding that the test is less

8

stringent than an "extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d 654,

9

661-62 (9th Cir. 2005). Several district courts have concluded that the standard is more

10

generous than the showing needed for "cause" to excuse a procedural default. See, e.g.,

11

Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (applying the Supreme Court's

12

mandate on remand). This view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct.

13

1807, 161 L. Ed. 2d 669 (2005), where the Supreme Court acknowledged that a petitioner's

14

"reasonable confusion" about the timeliness of his federal petition would generally constitute

15

good cause for his failure to exhaust state remedies before filing his federal petition. 544 U.S.

16

at 416-17.

17

However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the Ninth Circuit ruled

18

that petitioner did not show good cause by arguing that he was "under the impression" that his

19

counsel had raised all claims before the state court of appeal. Wooten, 540 F.3d at 1024. The

20

Ninth Circuit explained that finding good cause in that argument "would render stay-and-abey

21

orders routine" and "would run afoul of Rhines and its instruction that district courts should only

22

stay mixed petitions in 'limited circumstances.'" Wooten, 540 F.3d at 1024.

23

Petitioner provides no excuse or reasoning for not presenting the claim to the California

24

Supreme Court. This Court is bound to find that he has not shown good cause for a stay under

25

Rhines. However, the Kelly procedure, which has remained available even after the Supreme

26

Court's ruling in Rhines, does not require a showing of good cause. King, 564 F.3d at 1140.

27

The Court must still deny a request for a stay and abeyance under Kelly if the new claims are

28

facially without merit and therefore cannot be added to the existing habeas petition after they
-3-

1

are exhausted in state court. King, 564 F.3d at 1141.

2

The Court finds that this petitioner's unexhausted claims - insufficient evidence and

3

ineffective assistance of counsel - present, at this stage, a facially meritorious claims. Under

4

the Kelly procedure, Petitioner should have the opportunity to file an amended petition that

5

does not include unexhausted claims.1 If he does so, the Court will impose a stay to allow him

6

to exhaust the claims in state court. If he chooses not to amend his petition, the Court will deny

7

his motion to stay and dismiss the petition without prejudice for failure to exhaust all claims,

8

with leave to file an amended petition. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir.

9

2000). Petitioner is forewarned that such a dismissal may adversely affect the timeliness of

10

the petition in relation to the one year statute of limitations under the Antiterrorism and

11

Effective Death Penalty Act ("AEDPA").

12

As Petitioner may be able to exhaust his claim and subsequently add it to the petition

13

through amendment, the Court will stay the proceedings under Kelly. The Court declines at

14

this time to decide if the claim, once exhausted, can properly be added to the federal petition

15

within AEDPA's one year limitation period. However, after Petitioner amends his petition to add

16

any newly exhausted claims, Respondent will be given an opportunity to challenge the

17

timeliness of the claims asserted in the amended petition.

18

III.

CONCLUSION AND ORDER

19

Accordingly, it is ORDERED that:

20

1) Petitioner's motion for stay (Doc. 7) be granted pursuant to Kelly v. Small, 315 F.3d

21

1063 (9th Cir. 2002) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), and the instant action

22

be administratively stayed pursuant to Kelly and King;

23
24

2) Petitioner be directed to file a motion to lift the stay within 30 days of the California
Supreme Court issuing a final order resolving Petitioner's unexhausted claims; and

25
26
27
28

1
The Court admonishes Petitioner to familiarize himself with Local Rule 220, which governs the
amendment of pleadings. If he chooses to file an amended complaint, the Court will examine it according to the
same screening standards that applied to his original petition. In addition, Petitioner is informed that the Court
cannot refer to a prior pleading in order to make Petitioner's amended petition complete. Local Rule 220 requires
that an amended pleading be complete in itself, without reference to any prior pleading. See Loux v. Rhay, 375
F.2d 55, 57 (9th Cir. 1967) (As general rule, an amended complaint or petition supersedes the original.).

-4-

3) Petitioner be directed to file an amended habeas petition containing all exhausted

1
2

claims with his motion to lift the stay.
Petitioner is forewarned that failure to comply with this Order will result in the Court's

3
4

vacating the stay.

5
6
7

IT IS SO ORDERED.

8

Dated:
ci4d6

May 6, 2013

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-