Nichols v. Katavich

Filing 9

ORDER Granting Petitioner's Motion for Stay and Abeyance, signed by Magistrate Judge Sandra M. Snyder on 12/17/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC LAVELLE NICHOLS,

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Case No. 1:14-cv-01880-LJO-SMS HC

Petitioner,
ORDER GRANTING PETITIONER'S
MOTION FOR STAY AND ABEYANCE

v.
JOHN KATAVICH, Warden,

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Respondent.

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Petitioner Eric Lavelle Nichols is a state prisoner who seeks to proceed with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 24, 2014, Petitioner moved for

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an order of stay and abeyance pending resolution of his claims in California state courts. Because

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Petitioner failed to file a corresponding petition for habeas corpus, the Court denied the motion

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without prejudice and directed Petitioner to file a petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. He mailed the petition to this Court on December 7, 2014.

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PROCEDURAL BACKGROUND
On March 20, 2011, following trial in Kern County (California) Superior Court, a jury

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convicted Petitioner of one count of evading police, contrary to California Vehicle Code § 2800.2.

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The court sentenced Petitioner to a ten-year term of imprisonment.

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

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habeas corpus. The California Supreme Court denied his last petition for review of his direct

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appeal on September 11, 2013. Petitioner mailed a federal petition for writ of habeas corpus to this

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court on December 7, 2014, in which he alleged that his state habeas claims were still pending

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before the California courts.

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DISCUSSION

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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). A petition is fully exhausted when the highest state court has had a full and fair

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opportunity to consider all claims before the petitioner presents them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971). "[P]etitioners who come to federal courts with 'mixed' petitions

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run the risk of forever losing their opportunity for federal review of the unexhausted claims. Rhines
v. Weber, 544 U.S. 269, 275 (2005).

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Federal district courts should stay mixed petitions only in limited circumstances. Id. at 277.
A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for failing to

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

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

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exhausted petition, allowing the petitioner to proceed to exhaust the deleted claims in state court;
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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).

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Despite the risk of the unexhausted claims becoming time-barred in the course of the Kelly

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procedure, a petitioner may elect to use that alternative since it does not require him to demonstrate

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good cause as Rhines does. King, 564 F.3d at 1140. Since the Court concludes that Petitioner has

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demonstrated good cause in this case, it will analyze Petitioner's motion using the Rhines

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alternative.

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Rhines does not define what constitutes good cause for failure to exhaust, and the Ninth

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Circuit has provided no clear guidance beyond holding that the test is less stringent than an
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"extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). If

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the claims are not "plainly meritless," and if the delays are not intentional or attributable to abusive

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tactics, however, the Rhines court opined that a district court would abuse its discretion in denying

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a stay. 544 U.S. at 278.

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Petitioner claims that he (1) was denied the assistance of counsel following withdrawal of
his trial attorney; (2) was denied his right to a speedy trial; (3) was denied effective assistance of

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counsel; and (4) was denied a new trial because of prosecutorial and judicial misconduct. Although
Petitioner has consistently asserted these claims, his appellate counsel failed to raise those claims.

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Petitioner's claim of ineffective assistance of counsel includes a claim against his appellate attorney.

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Nothing in the record suggests that Petitioner has intentionally or maliciously failed to

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pursue his potentially meritorious claims. Accordingly, the Court finds good cause for the
unexhausted claims and will grant stay and abeyance under Rhines.

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CONCLUSION AND ORDER
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The Court hereby ORDERS:

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1.

The Court GRANTS Petitioner's motion for stay and abeyance to permit exhaustion of the

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four stated claims pursuant to Rhines v. Weber, 544 U.S. 269, 275 (1995).

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2.

Petitioner is DIRECTED to file a status report within thirty (30) days of the date of this

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Order advising the Court of the status of the state court proceedings.

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Petitioner shall file an additional status report every ninety (90) days thereafter.

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4.

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

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unexhausted claims, Petitioner shall file a motion to lift the stay and an amended habeas petition

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setting forth all exhausted claims. The Court shall then screen the petition pursuant to the Rules

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Governing Section 2254 Cases.
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5.

If Petitioner fails to comply with this Order, the Court will vacate the stay, nunc pro tunc to

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the date of this Order, and dismiss the petition without prejudice for failure to exhaust all claims but

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with leave to file an amended petition. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000).

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Such dismissal may render the petition untimely in light of the one-year statute of limitations under

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the Antiterrorism and Effective Death Penalty Act ("AEDPA").

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IT IS SO ORDERED.
Dated:

December 17, 2014

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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