Bisel v. Fisher et al

Filing 10

ORDER Directing Petitioner to Supplement His Motion for Stay and Abeyance (Doc. 2 ) Within Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 1/13/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY EUGENE BISEL,

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Petitioner,

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Case No. 1:17-cv-00013-SKO HC
ORDER DIRECTING PETITIONER TO
SUPPLEMENT HIS MOTION FOR
STAY AND ABEYANCE

v.
RAY FISHER, JR., Warden, and SCOTT
KERNAN, Secretary, California
Department of Corrections and
Rehabilitation

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Respondent.

(Doc. 2)

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Petitioner Gregory Eugene Bisel is a state prisoner proceeding with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On December 16, 2016, Petitioner filed the petition,
setting forth two fully exhausted claims, and moved for an order of stay and abeyance pending

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exhaustion of additional, unexhausted claims, including ineffective assistance of appellate counsel.
I.

Procedural Background
In Fresno County (California) Superior Court, a jury convicted Petitioner of two counts of

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annoying or molesting a minor child following a prior felony conviction, contrary to California

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Penal Code § 647.6(c)(2). The court sentenced Petitioner to a prison term of 15 years, 8 months.

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Petitioner pursued a direct appeal, alleging constitutional claims relating to the late

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discovery of a recorded police interview with the victim and denial of Petitioner’s right to represent

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himself (Faretta v. California, 422 U.S. 806 (1975)). The California Court of Appeal affirmed

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Petitioner’s conviction on August 10, 2016. The California Supreme Court denied the petition for

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review on October 19, 2016.

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II.

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Standards for Orders of Stay and Abeyance
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

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v. Weber, 544 U.S. 269, 275 (2005).
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 to
have first exhausted all claims in state court; (2) the claims potentially have merit; and (3) petitioner
has not been dilatory in pursuing the litigation. Id. at 277-78.
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
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 Petitioner seeks a stay pursuant to

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Rhines, and the Court concludes that Petitioner has demonstrated good cause for his failure to

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exhaust his additional claims, it will analyze Petitioner's motion using the Rhines alternative.

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Rhines does not define what constitutes good cause for failure to exhaust, and the Ninth
Circuit has provided no clear guidance beyond holding that the test is less stringent than an
"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 generally that appellate counsel declined to pursue several constitutional
claims in the direct appeal and indicates that he also intends to allege a claim of ineffective
assistance of appellate counsel. To enable the Court to evaluate whether the claims potentially have

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merit, as required by Rhines, Petitioner must provide the Court with a supplemental declaration
listing the claims for which he seeks a stay pending their exhaustion.
III.

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Conclusion and Order
The Court hereby DIRECTS Petitioner to file, within thirty (30) days of the date of this

Order, a supplemental statement setting forth each unexhausted claim for which he seeks a stay to
permit exhaustion. If Petitioner fails to comply with this Order, the Court will deny the stay, and

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permit the petition to move forward on the two exhausted claims currently alleged in it.
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IT IS SO ORDERED.

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Dated:

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January 13, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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