Salvador Carrillo Leon v. P Brazelton

Filing 19

ORDER Denying without Prejudice Petitioner's 16 Motion for Stay and Abeyance signed by Magistrate Judge Stanley A Boone on 08/06/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SALVADOR CARRILLO LEON,

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Petitioner,

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v.

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P. BRAZELTON,

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Respondent.

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Case No.: 1:13-cv-00768-AWI-SAB (HC)
ORDER DENYING WITHOUT PREJUDICE
PETITIONER’S MOTION FOR STAY AND
ABEYANCE
(ECF No. 16)

Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2254.
Petitioner filed the instant petition for writ of habeas corpus on May 1, 2013, in the United

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States District Court for the Central District of California. On May 22, 2013, the action was

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transferred to this Court.
On June 5, 2013, the undersigned directed Respondent to file a response to the petition within

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sixty days from the date of service of that order.
On July 8, 2013, Petitioner filed a motion to stay and hold the petition in abeyance while he

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returns to state court to exhaust certain undisclosed claims.
On August 2, 2013, Respondent filed a motion for an extension of time to file a response to the

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pending petition.

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I.

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DISCUSSION

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There are two different procedures to hold a petition in abeyance in federal court. In Rhines v.

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Weber, 544 U.S. 269 (2005), the Supreme Court held that a district court has discretion to stay a

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mixed petition to allow a petitioner to present his unexhausted claims to the state court in the first

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instance and then to return to federal court for review of his perfected petition. The Supreme Court

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noted that, while the procedure should be “available only in limited circumstances,” it “likely would

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be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the

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petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious,

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and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at

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278. The Ninth Circuit has held that the Rhines “good cause” standard does not require a petitioner to

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show that “extraordinary circumstances” prohibited him from exhausting his claims. See Jackson v.

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Roe, 425 F.3d 654, 661-662 (9th Cir. 2005).

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A petition may also be stayed pursuant to the procedure set forth by the Ninth Circuit in Kelly

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v. Small, 315 F.3d 1063 (9th Cir. 2003). Under this three-step procedure: 1) the petitioner files an

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amended petition deleting the unexhausted claims; 2) the district court stays and holds in abeyance the

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fully exhausted petition; and 3) the petitioner later amends the petition to include the newly exhausted

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claims. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). However, the amendment is only

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allowed if the additional claims are timely. Id. at 1140-41.

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In this instance, Petitioner’s motion does not address which procedure petitioner seeks to

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utilize, and Petitioner fails to recognize or address the Rhines conditions. The Court finds, at this

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juncture, Petitioner fails to meet the requirements for stay under either option. First, applying the

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Rhines standard, Petitioner fails to identify the ground(s) he intends to exhaust (or is exhausting) in the

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state court, nor has Petitioner explained the bases for those grounds in sufficient detail for the Court to

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determine whether those grounds are “plainly meritless” under Rhines. 544 U.S. at 277-278.

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Petitioner also fails to demonstrate “good cause” for his failure to exhaust the unidentified

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unexhausted claims prior to filing the instant petition. Petitioner merely asserts that due to his reliance

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on an inmate assistance and transfer between prison facilities he prematurely filed the instant petition
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in this Court. Such circumstances do not demonstrate good cause under Rhines as these circumstances

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are everyday realities in the lives of prisoners. If Petitioner’s assertions are considered to qualify as

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good cause, then a Rhines stay would be available in virtually every case involving a prisoner. See,

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e.g., Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (to endorse a broad interpretation of

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“good cause” that would allow routine stays of mixed petitions would undermine the goals of

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AEDPA.).

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Petitioner has also not met the standard for a stay under Kelly. Although a petitioner seeking

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a stay under the Kelly three-step procedure need not demonstrate good cause, the petitioner must show

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that the amendment of any newly exhausted claims shares a “common core of operative facts” to the

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original petition, and the claims must be brought within the one-year statute of limitations period set

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forth by AEDPA. Petitioner has not demonstrated that any claims he seeks to exhaust are timely or

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share a common core of operative facts as the claims set forth in the original petition. Accordingly,

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Petitioner’s motion for stay must be DENIED without prejudice.

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II.

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ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that Petitioner’s motion to stay the

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proceedings is DENIED without prejudice.

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IT IS SO ORDERED.

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Dated:

August 6, 2013

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UNITED STATES MAGISTRATE JUDGE
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