Velasquez v. Sherman

Filing 5

ORDER Granting Petitioner's Motion to Stay Proceedings 3 ; ORDER for Petitioner to File Regular Status Reports, signed by Magistrate Judge Jennifer L. Thurston on 9/9/15. CASE STAYED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO VELASQUEZ,

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Petitioner,

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v.

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STU SHERMAN, Warden,

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Respondent.

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Case No.: 1:15-cv-01288-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 was filed on August 21, 2015. (Doc. 2). Along with this, Petitioner filed a motion

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to stay the proceedings. (Doc. 3). The petition raises seven claims, six of which Petitioner alleges

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have not been exhausted in state court. The seventh, Petitioner alleges, has been exhausted. (Doc. 3,

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p. 1).

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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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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

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

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permit the petitioner to return to state court to exhaust his state remedies. Kelly v. Small, 315 F.3d

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

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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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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”

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

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proceeding with their federal petitions. Rhines, 544 U.S. at 275. In so holding, 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.”

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Rhines, 544 U.S. at 278. When a petitioner has met these requirements, his interest in obtaining

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federal review of his claims outweighs the competing interests in finality and speedy resolution of

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federal petitions. Id.
Here, Petitioner has timely filed a federal habeas petition containing one claim exhausted in

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state court. He has also initiated state court habeas proceedings to exhaust the six additional claims in

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the instant petition that are not exhausted. In his motion for a stay, Petitioner indicates that his state

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habeas petition to exhaust those unexhausted claims has already been filed. (Doc. 3, pp. 3-4).
Thus, it appears to the Court that Petitioner is attempting to exhaust his claims in a timely and

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

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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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sole remaining claim in the instant petition, a preliminary review of that claim indicates that Petitioner

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

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and that no prejudice would inure to the parties by granting the requested stay.
Therefore, the Court will grant Petitioner’s motion for a stay of the proceedings and will hold

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the petition for writ of habeas corpus in abeyance pending exhaustion of Petitioner’s state remedies.

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However, the Court will not do so indefinitely. See Taylor, 134 F.3d at 988 n. 11. No later than 30

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days after the date of service of this order, Petitioner must file a status report detailing the status of the

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habeas proceedings in state court, including the dates his cases were filed, the case numbers, and any

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outcomes.1 Further, Petitioner must proceed diligently to pursue his state court remedies, and every 60

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days after the filing of the initial status report Petitioner must file a new status report regarding the

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status of his state court habeas corpus proceedings. Following final action by the state courts,

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Petitioner will be allowed 30 days within which to file a motion for leave to amend the instant petition

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to include the newly exhausted claims. Failure to comply with these instructions and time allowances

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will result in this Court vacating the stay nunc pro tunc to the date of this order. Kelly, 315 F.3d at

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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. 3), is

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

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remedies;
3. Petitioner is DIRECTED to file an initial status report within 30 days of the date of

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

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The filing should be entitled “Status Report.”

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court, the dates when such cases were filed, and any outcomes;
4. Petitioner is DIRECTED to file a new status report every 60 days after the filing of the
initial status report; and
5. Petitioner is GRANTED 30 days following the final order of the state courts within which
to file a motion to lift the stay.

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IT IS SO ORDERED.
Dated:

September 9, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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