Frazier v. Montgomery

Filing 6

ORDER Granting Petitioner's 3 Motion to Stay Proceedings; ORDER for Petitioner to File Regular Status Reports signed by Magistrate Judge Jennifer L. Thurston on 08/01/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SEMAJ LEON FRAZIER,
Petitioner,
v.
W. L. MONTGOMERY,
Respondent.

Case No.: 1:14-cv-01146-JLT
ORDER GRANTING PETITIONER’S MOTION
TO STAY PROCEEDINGS (Doc. 3)
ORDER FOR PETITIONER TO FILE REGULAR
STATUS REPORTS

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.

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PROCEDURAL HISTORY

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The instant petition was filed on July 23, 2014. (Doc. 1). The petition, which challenges

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Petitioner’s August 29, 2011 conviction in the Kings County Superior Court for various sexual assault

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crimes, raises the following six claims: (1) insufficient evidence to convict Petitioner of rape and

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assault; (2) insufficient evidence to support “the convictions”; (3) use of an improper prior conviction

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to enhance the sentence; (4) instructional error; (5) ineffective assistance of trial counsel; and (6)

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ineffective assistance of appellate counsel. (Doc. 1, pp. 4-6).

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Contemporaneous with the filing of the petition, Petitioner filed the instant motion to stay

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proceedings in this case while he exhausts the two ineffective assistance claims in state court. (Doc. 3).

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Respondent has not entered an appearance or otherwise filed an opposition to the motion to stay
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proceedings.
DISCUSSION

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Traditionally, a district court has had the discretion to stay a petition which it may validly

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consider on the merits. Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-988 (9th Cir.

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1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 1002 (1997).

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However, the Ninth Circuit has held that Taylor in no way granted “district courts carte blanche to stay

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even fully exhausted habeas petitions.” Taylor, 134 F.3d at 988 n. 11. Granting a stay is appropriate

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where there is no intention on the part of the Petitioner to delay or harass and in order to avoid

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piecemeal litigation. Id. In addition, the Ninth Circuit has indicated that it is proper for a district court,

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in its discretion, to hold a petition containing only exhausted claims in abeyance in order to permit the

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petitioner to return to state court to exhaust his state remedies. Kelly v. Small, 315 F.3d 1063, 1070 (9th

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Cir. 2004); Ford v. Hubbard, 305 F.3d 875, 882-883 (9th Cir. 2002); James v. Pliler, 269 F.3d 1124,

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1126-1127 (9th Cir. 2002); Taylor, 134 F.3d 981.
Notwithstanding the foregoing, federal case law continued to require the Court to dismiss

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“mixed” petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509

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(1982). However, in 2005, the United States Supreme Court decided Rhines v. Weber, 544 U.S. 269,

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125 S.Ct. 1528 (2005). Recognizing that “[a]s a result of the interplay between AEDPA’s 1-year

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statute of limitations1 and Lundy’s dismissal requirement, petitioners who come to federal court with

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‘mixed’ petitions run the risk of forever losing their opportunity for any federal review of their

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unexhausted claims,” the Supreme Court held that federal courts may now issue “stay and abey” orders

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under appropriate circumstances to permit petitioners to exhaust unexhausted claims before proceeding

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with their federal petitions. Rhines, 544 U.S. at 275. In so holding, the Supreme Court noted that,

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while the procedure should be “available only in limited circumstances,” it “likely would be an abuse of

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discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good

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cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no

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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA), 28 U.S.C. § 1244(d).

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indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at

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278. When a petitioner has met these requirements, his interest in obtaining federal review of his

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claims outweighs the competing interests in finality and speedy resolution of federal petitions. Id.

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Here, Petitioner has timely filed a federal habeas petition containing four claims exhausted

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through state habeas corpus proceedings, and two claims of ineffective assistance that are

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unexhausted. Petitioner indicates that he has initiated state court habeas proceedings to exhaust those

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two claims. Thus, it appears to the Court that Petitioner is attempting to exhaust his claims in a timely

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and expeditious manner, and there is no indication that, in seeking this stay and abeyance, Petitioner

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intends to harass or delay the proceedings nor does it appear that Petitioner is engaging in dilatory

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conduct. Although the Court is not prepared at this time to make an assessment of the merits of the

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four exhausted claims in the instant petition, a preliminary review of those claims indicates that

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Petitioner has alleged colorable constitutional violations. Moreover, it appears that Petitioner is

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proceeding in good faith and that no prejudice would inure to the parties by granting the requested

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stay. Therefore, good cause having been presented and good cause appearing therefore, the Court will

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grant Petitioner’s motion for a stay of the proceedings and will hold the petition for writ of habeas

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corpus in abeyance pending exhaustion of Petitioner’s state remedies.
However, the Court will not indefinitely hold the petition in abeyance. See Taylor, 134 F.3d at

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988 n. 11. No later than 30 days after the date of service of this Order Petitioner must inform the

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Court of the status of the habeas proceedings in state court, including the dates his cases were filed, the

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case numbers, and any outcomes.2 Further, Petitioner must proceed diligently to pursue his state court

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remedies, and every 60 days after the filing of the initial status report Petitioner must file a new status

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report regarding the status of his state court habeas corpus proceedings. Following final action by the

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state courts, Petitioner will be allowed 30 days within which to file a motion for leave to amend the

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instant petition to include the newly exhausted claims. Failure to comply with these instructions and

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time allowances will result in this Court vacating the stay nunc pro tunc to the date of this order.

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Kelly, 315 F.3d at 1071.

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The filing should be entitled “Status Report.”

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ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to stay the instant proceedings on his habeas petition (Doc. 3), is

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GRANTED;

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2. Proceedings on the instant petition are STAYED pending exhaustion of Petitioner’s

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state remedies regarding grounds five and six;

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3. Petitioner is DIRECTED to file a status report within 30 days of the date of service

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of this order, advising the Court of the status of all pending habeas proceedings filed in

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state court, the dates when such cases were filed, and any outcomes;

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4. Petitioner is DIRECTED to file a new status report every 60 days after the filing of

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the initial status report; and

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5. Petitioner is GRANTED 30 days following the final order of the state courts within

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which to notify the Court that the two unexhausted claims have been exhausted and to

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request that the stay be lifted and the case proceed.

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IT IS SO ORDERED.
Dated:

August 1, 2014

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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