Doughton v. McDonald
Filing
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ORDER signed by Magistrate Judge Kendall J. Newman on 10/13/2011 ORDERING that ptnr's 7 motion to stay is GRANTED; this action is administratively STAYED pending ptnr's exhaustion of unexhausted claims; and the three unexhausted claims contained in the petition are STRICKEN. CASE STAYED. (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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CAMITT DOUGHTON,
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Petitioner,
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No. 2: 11-cv-2252 KJN P
vs.
WARDEN McDONALD, et al.,
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Respondents.
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ORDER
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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ
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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the
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undersigned.
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On September 15, 2011, the undersigned issued an order finding that the original
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petition raised both exhausted and unexhausted claims. The petition raised the following
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exhausted claims: 1) alleged denial of right to cross-examine adverse witness; and 2) alleged jury
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instruction error (two claims). The petition raised the following unexhausted claims:
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1) ineffective assistance of appellate counsel; 2) ineffective assistance of counsel; and
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3) insufficient evidence.
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The September 15, 2011 order granted petitioner twenty-one days to inform the
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court whether he wished to proceed on the exhausted claims only or whether he wished to stay
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this action in order to exhaust the unexhausted claims. If petitioner sought a stay, petitioner was
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directed to address whether he sought the stay pursuant to the procedures outlined in Rhines v.
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Weber, 544 U.S. 269 (1995) or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). The September
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15, 2011 order set forth the standards for stays pursuant to both Rhines and Kelly.
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On September 29, 2011, petitioner filed a motion to stay. Petitioner states that he
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is requesting a stay pursuant to Kelly because he is exhausting four claims: 1) ineffective
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assistance of counsel; 2) insufficient evidence; 3) suggestive photo lineup; and 4) ineffective
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assistance of appellate counsel.
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As discussed in the September 15, 2011 order, for a stay pursuant to Kelly, the
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petitioner amends his petition to delete any unexhausted claims, and the court then stays and
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holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity
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to proceed to state court to exhaust the deleted claims. King v. Ryan, 564 F.3d 1133, 1135 (9th
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Cir. 2009) (discussing procedures for staying habeas actions pursuant to Kelly). Later, the
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petitioner amends his petition to add the newly-exhausted claims to the original petition. Id.
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“A petitioner seeking to use the Kelly procedure will be able to amend his
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unexhausted claims back into his federal petition once he has exhausted them only if those
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claims are determined to be timely.” Id. at 1140-41. Because the Kelly procedure requires
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petitioners to dismiss their unexhausted claims and then attempt to add them back into the federal
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petition later, the Kelly procedure does not protect a petitioner’s unexhausted claims from
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untimeliness.
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Good cause appearing, petitioner’s motion to stay pursuant to Kelly is granted.
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Petitioner did not file an amended petition containing his exhausted claims only. Rather than
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requiring petitioner to file an amended petition, the undersigned orders the unexhausted claims
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stricken. Once petitioner exhausts his unexhausted claims, he shall immediately file a notice of
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exhaustion and an amended petition containing all of his exhausted claims.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion to stay (Dkt. No. 7) is granted;
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2. This action is administratively stayed pending petitioner’s exhaustion of
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unexhausted claims;
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3. The three unexhausted claims contained in the petition are stricken.
DATED: October 13, 2011
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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE
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