Stolp v. Holland

Filing 10

ORDER Granting Petitioner's 3 Motion to Stay; ORDER for Petitioner to File Regular Status Reports, signed by Magistrate Judge Jennifer L. Thurston on 4/25/16. (Gonzalez, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

GERALD H. STOLP,

12

Petitioner,

13

v.

14

KIM HOLLAND,

15

Respondent.

)
)
)
)
)
)
)
)
)

Case No.: 1:16-cv-00560-JLT
ORDER GRANTING PETITIONER’S MOTION
TO STAY PROCEEDINGS (Doc. 3)
ORDER FOR PETITIONER TO FILE REGULAR
STATUS REPORTS

16
17

Petitioner raises several claims in this action but readily acknowledges that only ground one is

18

exhausted. Thus, he has requested the Court stay the proceedings while he exhausts grounds three and

19

four in state court. (Doc. 3). Petitioner indicates also that he believes that ground two need not be

20

exhausted because it arose during the course of his direct appeal; this is not correct.

21

I.

DISCUSSION

22

The Court has had the discretion to stay a petition. Calderon v. United States Dist. Court

23

(Taylor), 134 F.3d 981, 987-988 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.),

24

cert. denied, 519 U.S. 1002 (1997). Granting a stay is appropriate where there is no intention on the

25

part of the Petitioner to delay or harass and in order to avoid piecemeal litigation. Id.

26

In Rhines v. Weber, 544 U.S. 269, 275 (2005), the United States Supreme Court decided

27
28
1

1

recognized, “[a]s a result of the interplay between AEDPA’s 1-year statute of limitations1 and Lundy’s

2

dismissal requirement, petitioners who come to federal court with ‘mixed’ petitions run the risk of

3

forever losing their opportunity for any federal review of their unexhausted claims.” Thus, the Court

4

held that federal courts may now issue “stay and abey” orders under appropriate circumstances to

5

permit petitioners to exhaust claims before proceeding with their federal petitions. Id. In so holding,

6

the Supreme Court noted that, while the procedure should be “available only in limited circumstances,”

7

it “likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed

8

petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are

9

potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory

10

litigation tactics.” Rhines, 544 U.S. at 278. When a petitioner has met these requirements, his interest

11

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

12

resolution of federal petitions. Id.
Here, Petitioner appears to have timely filed a federal habeas petition containing at least one

13
14

claim, i.e., speedy trial, exhausted through state proceedings. He has also initiated state court habeas

15

proceedings to exhaust grounds three and four, which he hopes to be able to include in the instant

16

petition. However, Petitioner indicates that ground two need not be exhausted because it arose during

17

the course of his direct appeal. Petitioner is incorrect. The exhaustion requirement contains no

18

exception for issues arising during the course of a direct appeal. To the contrary, it is

19

Petitioner’s obligation to exhaust any issues, regardless of when they arise, should he wish to

20

include them in federal habeas proceedings.
Accordingly, while the Court will grant the motion to stay, Petitioner will be required to show

21
22

diligence and good faith by immediately initiating exhaustion proceedings for ground two or, in the

23

alternative, move voluntarily to dismiss ground two. The Court will not permit Petitioner to proceed

24

in this Court piecemeal by maintaining separate exhaustion proceedings on separate potential habeas

25

claims.

26
27

There is no indication that in seeking this stay and abeyance, Petitioner intends to harass or
delay the proceedings nor does it appear that Petitioner is engaging in dilatory conduct. Although the

28
1

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

2

1

Court is not prepared to assess the merits of the sole remaining claim, a preliminary review of that

2

claim indicates that Petitioner has at least attempted to allege a constitutional violation. Although

3

Petitioner is incorrect in his assumption that ground two need not be exhausted, it does not appear that

4

that Petitioner’s failure to initiate exhaustion proceedings in state court regarding ground two was

5

done in bad faith. Finally, it does not appear that any prejudice would inure to the parties by granting

6

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

7

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

8

of habeas corpus in abeyance pending exhaustion of Petitioner’s state remedies.

9

However, the Court will not indefinitely hold the petition in abeyance. See Taylor, 134 F.3d at

10

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

11

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

12

were filed, the case numbers, and any outcomes.2 Specifically, Petitioner must provide proof that

13

he is taking steps to exhaust ground two or, alternatively, Petitioner will be required to file a motion to

14

dismiss ground two as unexhausted. The Court will not permit an unexhausted claim to remain in the

15

petition during pendency of a stay if the petitioner is not taking steps to exhaust that claim.

16

Further, Petitioner must proceed diligently to pursue his state court remedies, and every

17

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

18

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

19

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

20

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

21

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

22

Kelly, 315 F.3d at 1071.
ORDER

23
24

Accordingly, IT IS HEREBY ORDERED that:

25

1.

GRANTED;

26
27
28

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

2.
2

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

The filing should be entitled “Status Report.”

3

state remedies as to grounds two, three, and four;

1
2

3.

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

3

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

4

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

5

4.

initial status report; and

6
7

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

5.

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

8

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

9

claims.

10
11
12
13

IT IS SO ORDERED.
Dated:

April 25, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4