Kirby v. Lewis

Filing 17

ORDER signed by Magistrate Judge Dale A. Drozd on 8/23/11 ORDERING that petitioners 13 motion for a stay and abeyance is DENIED as moot; Within 30 days of the date of this order, petitioner shall file a second amended petition that contains all of his exhausted and unexhausted claims; Clerk of the Court is directed to send petitioner the form for habeas corpus application.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RUDY GRANT KIRBY,

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Petitioner,

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No. CIV S-11-0962 KJM DAD P

vs.
GREG LEWIS, Warden,

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Respondent.

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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s renewed motion for

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a stay and abeyance.

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By way of background, on April 11, 2011, petitioner commenced this action by

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filing a petition for writ of habeas corpus, challenging his 2009 judgment of conviction entered

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by the Sacramento County Superior Court. On April 21, 2011, this court ordered respondent to

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file a response to the petition. On June 16, 2011, the court granted respondent an extension of

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time up to and including July 20, 2011 to file that response. On July 1, 2011, petitioner filed a

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one-page motion for a stay and abeyance, asking the court to stay this federal habeas action to

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allow him time to pursue several allegedly newly-discovered claims for habeas relief in state

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court.
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On July 7, 2011, the court relieved respondent of having to file a response to

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petitioner’s original petition. The court also explained to petitioner the two procedures available

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to habeas petitioners who wish to proceed with exhausted and unexhausted claims for relief. See

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King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). The court instructed petitioner to inform the court

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as to whether he wished to proceed under the Kelly procedure outlined in Kelly v. Small, 315

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F.3d 1063 (9th Cir. 2003), or the Rhines procedure outlined in Rhines v. Weber, 544 U.S. 269

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(2005). If petitioner wished to proceed under the Rhines procedure, the court instructed

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petitioner to file a renewed motion for a stay and abeyance and an amended petition containing

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all of his claims since his original federal habeas petition appeared fully exhausted. In

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accordance with the court’s order, petitioner has filed a renewed motion for a stay and abeyance

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under the Rhines procedure. He has also filed a first amended petition.

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The court has reviewed petitioner’s amended petition. Therein, petitioner has

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only included the new claims he wishes to exhaust in state court. This court cannot stay a

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petition that is wholly unexhausted. See Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir.

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2006). As the court previously advised petitioner, to pursue a stay under the Rhines procedure he

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must file an amended federal petition containing all of his exhausted and unexhausted claims.

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Under these circumstances, the court will grant petitioner thirty days to file a second amended

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petition. Petitioner’s second amended petition should include all of the claims that were set forth

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in his original petition as well as all of the new claims contained in his amended petition. After

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petitioner files his second amended petition, the court will address his renewed motion for a stay

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and abeyance.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for a stay and abeyance (Doc. No. 13) is denied as moot;

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2. Within thirty days of the date of this order, petitioner shall file a second

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amended petition that contains all of his exhausted and unexhausted claims;

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3. The second amended petition must be filed on the form employed by this court,

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must name the proper respondent, and must state all claims and prayers for relief on the form. It

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must bear the case number assigned to this action and must bear the title “Second Amended

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Petition”; and

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4. The Clerk of the Court is directed to send petitioner the form for habeas corpus

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application.

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DATED: August 23, 2011.

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DAD:9
kirb0962.sty(2)

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