Schultz v. Hill

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/3/2012 DENYING petitioner's 19 motion for abeyance and leave to amend. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEITH SCHULTZ,

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Petitioner,

Respondent.

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No. CIV S-11-0398 GEB CKD P

ORDER

vs.
RICK HILL,

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Petitioner is a state prisoner proceeding pro se with an application for writ of

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habeas corpus under 28 U.S.C. § 2254. Petitioner’s October 4, 2011 motion for leave to file an

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amended application for writ of habeas corpus is before the court.

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Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend shall be

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given freely when justice requires. In deciding whether justice requires granting leave to amend,

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factors to be considered include the presence or absence of undue delay, bad faith, dilatory

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motive, repeated failure to cure deficiencies by previous amendments, undue prejudice to the

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opposing party and futility of the proposed amendment. Forman v. Davis, 371 U.S. 178, 182

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(1962).

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This action proceeds on the First Amendment Petition, filed July 12, 2011. In it,

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petitioner states that the California Court of Appeal, Third Appellate District, denied the instant
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claims in an October 12, 2010 decision; and the California Supreme Court denied them in a

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January 12, 2011 decision. (Dkt. No. 6 at 2.) Respondent filed an answer, arguing that, while

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petitioner presented the instant four claims to the state appellate courts, those claims are not

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cognizable on federal habeas review because they allege errors of state law. (Dkt. No. 14.)

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Petitioner has filed a traverse. (Dkt. No. 17.)

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In his pending motion “for abeyance and leave to amend,” petitioner attaches his

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November 2010 petition to the California Supreme Court and that court’s January 2011 summary

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denial. He requests 60 days to prepare and submit an amended petition. However, it is not clear

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what purpose amendment would serve. It is undisputed that the claims in the instant federal

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petition were previously presented to the California Supreme Court. The only issue is whether

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these claims are cognizable on federal habeas review, or are state law claims only. Accordingly,

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justice does not require leave to amend in this instance.

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Insofar as petitioner seeks to stay the instant action so as to be able to exhaust any

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unexhausted claims in the state courts, he has not met the standard for staying a habeas action

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under Rhines v. Weber, 544 U.S. 269, 277-279 (2005).1

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Accordingly, IT IS HEREBY ORDERED THAT petitioner’s October 4, 2011
motion for abeyance and leave to amend (Dkt. No. 19) is denied.
Dated: April 3, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / schu0398.amend

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Rhines holds that the court may stay a mixed petition containing both exhausted and
unexhausted claims pending exhaustion of the unexhausted claims if petitioner shows that (1) the
unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his earlier
failure to exhaust state remedies.
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