Ramirez v. Davey

Filing 10

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 8/6/2015. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ELEAZAR RAMIREZ,

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Petitioner,

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v.

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DAVE DAVEY,

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Respondent.

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Case No.: 1:15-cv-01072-JLT
ORDER GRANTING PETITIONER’S MOTION
TO STAY PROCEEDINGS (Doc. 3)
ORDER FOR PETITIONER TO FILE REGULAR
STATUS REPORTS

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The petition in this case raises the following claims: (1) ineffective assistance of trial counsel in

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failing to investigate Petitioner’s mental health, mental illness, and competency, including appointment

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of a medical doctor to evaluate Petitioner’s mental condition; (2) ineffective assistance of counsel in

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advising Petitioner to admit to prior convictions; (3) the trial court abused its discretion in finding

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Petitioner competent to stand trial; (4) Petitioner was denied his right to an impartial jury; and (5) juror

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misconduct. (Doc. 1, pp. 7-9). The petition alleges that grounds four and five were exhausted in state

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court. (Doc. 1, p. 2). However, grounds one, two, and three were apparently not exhausted.
On July 13, 2015, Petitioner filed a motion to stay proceedings in this case while he exhausts

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those unexhausted grounds claims in state court. (Doc. 3).

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I.

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DISCUSSION
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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Granting a stay is appropriate where there is no intention on the part of the Petitioner to delay or harass

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and in order to avoid piecemeal litigation. Id. In addition, the Ninth Circuit has indicated that it is

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proper for a district court, in its discretion, to hold a petition containing only exhausted claims in

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abeyance in order to permit the petitioner to return to state court to exhaust his state remedies. Kelly v.

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Small, 315 F.3d 1063, 1070 (9th Cir. 2004); Ford v. Hubbard, 305 F.3d 875, 882-883 (9th Cir. 2002);

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James v. Pliler, 269 F.3d 1124, 1126-1127 (9th Cir. 2002); Taylor, 134 F.3d 981.
Notwithstanding the foregoing, federal case law continued to require that the Court 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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(2005). Recognizing that “[a]s a result of the interplay between AEDPA’s 1-year statute of

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limitations1 and Lundy’s dismissal requirement, petitioners who come to federal court with ‘mixed’

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petitions run the risk of forever losing their opportunity for any federal review of their unexhausted

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

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

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

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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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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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In his motion for a stay, Petitioner cites both Kelly and Rhines as a basis for issuing a stay,

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notwithstanding that these two procedures, as previously discussed, are quite dissimilar. Since the

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

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Rhines procedure is less cumbersome by not requiring dismissal of the unexhausted claims, the Court

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will first analyze Petitioner’s motion for stay for “good cause,” which, if present, would obviate the

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need to undertake a dismissal of the unexhausted claims, as required by Kelly.

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Petitioner has timely filed a federal habeas petition containing two claims exhausted through

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state habeas corpus proceedings. He has also indicated his intention to initiate state court habeas

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proceedings to exhaust the additional claims contained in the instant petition. Thus, it appears to the

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Court that Petitioner is attempting to proceed in a timely and expeditious manner, and there is no

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indication that, in seeking this stay and abeyance, Petitioner intends to harass or delay the proceedings

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nor does it appear that Petitioner is engaging in dilatory conduct. Indeed, in the motion for stay,

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Petitioner, through his inmate assistant, has submitted a declaration indicating that he suffers from

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various serious mental conditions that have hindered Petitioner’s ability to proceed expeditiously with

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his claim for habeas relief. Thus, it appears that Petitioner meets the qualifications for a stay under

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

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exhausted claims in the instant petition, a preliminary review of that claim indicates that Petitioner has

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alleged a constitutional violation. Moreover, it appears that Petitioner is proceeding in good faith and

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that no prejudice would inure to the parties by granting the requested stay.

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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.

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However, the Court will not indefinitely hold the petition in abeyance. See Taylor, 134

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F.3d at 988 n. 11. No later than 30 days after the date of service of this Order Petitioner must inform

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

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

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

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

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

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

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The filing should be entitled “Status Report.”

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and 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.
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. 6), 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 in Case No. S131392;

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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 file a motion for leave to amend the petition to include the newly exhausted

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claims.

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IT IS SO ORDERED.
Dated:

August 6, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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