Regalado vs Tampkins

Filing 20

ORDER GRANTING Petitioner's Request for Stay and Abeyance, signed by Magistrate Judge Sandra M. Snyder on 4/8/2015. First status report due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER REGALADO,

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Plaintiff,

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CASE NO. 1:14-CV-1612 SMS
ORDER RE PETITIONER‟S REQUEST
FOR STAY AND ABEYANCE

v.
CYNTHIA Y. TAMPKINS, Warden of
California Rehabilitation Center, Norco,
Defendant.

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Petitioner Christopher Regalado is a state prisoner with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He filed his petition with this Court on October 15, 2014, and in it

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requests a stay and abeyance pending resolution of unexhausted claims.

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I.

PROCEDURAL BACKGROUND
On February 22, 2012, the Kern County Superior Court sentenced Petitioner to the

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California State Department of Corrections and Rehabilitation for a prison term of six years and

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four months, following a jury verdict of two counts of robbery, one count of burglary, and a

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finding that Petitioner had personally used a knife during the commission of those crimes.

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In the California courts, Petitioner pursued both a direct appeal and petition for a writ of

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habeas corpus. Petitioner filed an appeal of his conviction in the California State Court of Appeal,

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Fifth Appellate District, which affirmed his convictions on July 30, 2013. The California Supreme

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Court denied his petition for review on October 16, 2013. Petitioner‟s appeal was based on the

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Sixth Amendment right to confront witnesses.

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Petitioner filed a petition for writ of habeas corpus in the Kern County Superior Court on

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August 1, 2014. Petitioner asserted that this petition was to have been decided on November 1,

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2014. Petitioner‟s petition for writ of habeas corpus in the state court was based on the Sixth

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Amendment right to assistance of counsel. The Court is not informed of the current disposition of

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the state habeas proceedings.

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The instant petition raises the issue of the right to confront witnesses, which has been

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exhausted in the state court. However, Petitioner requests an order of stay and abeyance to permit

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him to exhaust the unexhausted ineffective assistance of counsel claim. Plaintiff does not give any

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other reason to support his request nor does he explain his delay in exhausting his unexhausted

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claim. Defendant argues that his request must be denied for lack of good cause and improper

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procedure.

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II.

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DISCUSSION
A federal district court may not address a petition for writ of habeas corpus unless the

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petitioner has exhausted state remedies with respect to each claim raised. Rose v. Lundy, 455 U.S.

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509, 515 (1982). To satisfy the exhaustion requirement, a habeas petitioner must fairly present his

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or her federal claims in the state courts in order to give the state the opportunity to pass upon and

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correct alleged violations of the prisoner‟s federal rights. Duncan v. Henry, 513 U.S. 364, 365

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(1995). “[P]etitioners who come to federal courts with „mixed‟ petitions run the risk of forever

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losing their opportunity for federal review of the unexhausted claims.” Rhines v. Weber, 544 U.S.

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269, 275 (2005).

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Federal district courts should stay mixed petitions only in limited circumstances. Id. at 277.

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A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for failing

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to have first exhausted all claims in state court; (2) the claims potentially have merit; and (3)

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petitioner has not been dilatory in pursuing the litigation. Id. at 277-78.

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In the alternative, a court may stay a mixed petition if (1) the petitioner amends his

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petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended,

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fully exhausted petition, allowing the petitioner to proceed to exhaust the deleted claims in state

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court; and (3) petitioner later amends his petition and reattaches the newly exhausted claims to the

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original petition. Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003). The Kelly procedure is
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riskier than the Rhines procedure since it does not protect the petitioner‟s unexhausted claims from

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expiring during the stay. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Despite the risk of

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the unexhausted claims becoming time-barred in the course of the Kelly procedure, a petitioner

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may elect to use that alternative since it does not require him to demonstrate good cause as Rhines

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does. King, 564 F.3d at 1140.

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The instant petition is not technically a mixed petition. It only raises one issue, the right to

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confront witnesses, which has been exhausted, and requests a stay in order to exhaust Petitioner‟s

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second issue, the right to effective assistance of counsel. The second, unexhausted issue is not

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discussed in this petition. Petitioner has not demonstrated good cause for his delay in exhausting

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his second claim. However, Kelly provides that a district court may stay a petition containing only

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exhausted claims and hold it in abeyance pending exhaustion of additional claims which may then

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be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 564 F.3d at 1135.

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Petitioner has implied that the California Supreme Court has not yet denied review of his state

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court habeas claim. Accordingly, the Court will grant Petitioner‟s request for stay and abeyance

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under Kelly. Petitioner may seek to amend his unexhausted claim into the instant petition upon its

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resolution by the state court, provided that that claim is determined to be timely.

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III.

CONCLUSION AND ORDER

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For the foregoing reasons, it is hereby ORDERED:

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1.

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The Court GRANTS Petitioner‟s request for stay and abeyance to permit

exhaustion of claims pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003);
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Petitioner is DIRECTED to file a status report within thirty (30) days of the date of

this Order advising the Court of the status of the state habeas proceedings;
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Petitioner shall file an additional status report every ninety (90) days thereafter

until the state habeas proceedings are concluded;
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Petitioner shall notify the Court that the state habeas proceedings have ended

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within thirty (30) days after the California Supreme Court issues a final order resolving the

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unexhausted claim by filing a motion to lift the stay and for leave to file an amended habeas

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petition setting forth all exhausted claims, and accompanied by the proposed amended petition;
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If Petitioner fails to comply with this Order, the Court will vacate the stay and

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proceed on Petitioner‟s exhausted claim only. At any time, Petitioner may file a motion to lift the

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stay and elect to proceed on the exhausted claim only.

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IT IS SO ORDERED.
Dated:

April 8, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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