Doughton v. McDonald

Filing 6

ORDER signed by Magistrate Judge Kendall J. Newman on 09/14/11 granting 2 Motion to Proceed IFP. Within 21 days of the date of this order, petitioner shall file the further briefing discussed above. (Plummer, 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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CAMITT DOUGHTON,

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Petitioner,

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No. 2: 11-cv-2252 KJN P

vs.
WARDEN McDONALD, et al.,
Respondents.

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ORDER
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Petitioner, a state prisoner proceeding without counsel, has filed a petition for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in

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forma pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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The petition clearly raises three claims: 1) alleged denial of the right to cross-

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examine adverse witnesses; and 2) alleged jury instruction error (two claims). These claims are

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exhausted in that they have been presented to the California Supreme Court.

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It appears that petitioner may also be raising three additional claims: 1) ineffective

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assistance of appellate counsel; 2) ineffective assistance of counsel; and 3) insufficient evidence.
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Petitioner is presently pursuing habeas corpus petitions in the California courts where he is

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apparently raising these claims. In other words, these claims are not exhausted.

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The exhaustion of state court remedies is a prerequisite to the granting of a

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petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must

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be waived explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A waiver of exhaustion,

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thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by

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providing the highest state court with a full and fair opportunity to consider all claims before

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presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

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Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).

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A court may stay a petition while the petitioner returns to state court to exhaust

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state court remedies and hold it in abeyance pursuant to either Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003) or Rhines v. Weber, 544 U.S. 269 (1995). King v. Ryan, 564 F.3d 1133, 1135 (9th

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Cir. 2009). The procedure varies depending on whether the petition presents fully exhausted

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claims, or a mix of exhausted and unexhausted claims.

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Under Kelly, the petitioner amends his petition to delete any unexhausted claims,

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and the court then stays and holds in abeyance the amended, fully exhausted petition, allowing

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the petitioner the opportunity to proceed to state court to exhaust the deleted claims. Id. Later,

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the petitioner amends his petition to add the newly-exhausted claims to the original petition. Id.

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Under Rhines, a court may stay a mixed petition, i.e., one containing exhausted

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and unexhausted claims, to allow a petitioner to present unexhausted claims to the state courts.

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Rhines, 544 U.S. at 277. Under Rhines, “‘stay-and-abeyance is only appropriate when the

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district court determines there was good cause for the petitioner’s failure to exhaust his claims

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first in state court.’” King, 564 F.3d at 1139 (quoting Rhines, 544 U.S. at 277-78). The Kelly

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procedure, which remains available after Rhines, does not require a showing of good cause.

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King, 564 F.3d at 1140.

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Both Kelly and Rhines “are directed at solving the same problem – namely, the

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interplay between AEDPA’s one-year statute of limitations and the total exhaustion requirement

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first articulated in Rose v. Lundy, 455 U.S. 509 (1982).” King, 564 F.3d at 1136. The Rhines

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procedure “eliminates entirely any limitations issue with regard to the originally unexhausted

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claims, as the claims remain pending in federal court throughout.” Id. at 1140. On the other

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hand, “[a] petitioner seeking to use the Kelly procedure will be able to amend his unexhausted

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claims back into his federal petition once he has exhausted them only if those claims are

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determined to be timely.” Id. at 1140-41. Because the Kelly procedure requires petitioners to

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dismiss their unexhausted claims and then attempt to add them back into the federal petition

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later, the Kelly procedure does not protect a petitioner’s unexhausted claims from untimeliness.

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Petitioner is directed to file short, further briefing clarifying the claims he intends

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to raise in this action. If petitioner intends to raise his unexhausted claims in addition to his

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exhausted claims, he may seek a stay of this action in order to exhaust the unexhausted claims in

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state court. Accordingly, if petitioner intends to raise the unexhausted claims, he shall also file a

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request to stay this action. In this request, petitioner shall inform the court whether he seeks a

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stay pursuant to the procedures outlined in Rhines or Kelly. If petitioner requests a stay pursuant

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to Rhines, his further briefing shall address the issue of good cause, i.e. why he failed to exhaust

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his unexhausted claims in state court before filing this action.

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

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1. Petitioner’s application to proceed in forma pauperis is granted;

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2. Within twenty-one days of the date of this order, petitioner shall file the further

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briefing discussed above.

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DATED: September 14, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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dou2252.ord

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