Doughton v. McDonald

Filing 8

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)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 CAMITT DOUGHTON, 11 Petitioner, 12 13 No. 2: 11-cv-2252 KJN P vs. WARDEN McDONALD, et al., 14 Respondents. 15 ORDER / 16 Petitioner is a state prisoner, proceeding without counsel, with a petition for writ 17 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the 18 undersigned. 19 On September 15, 2011, the undersigned issued an order finding that the original 20 petition raised both exhausted and unexhausted claims. The petition raised the following 21 exhausted claims: 1) alleged denial of right to cross-examine adverse witness; and 2) alleged jury 22 instruction error (two claims). The petition raised the following unexhausted claims: 23 1) ineffective assistance of appellate counsel; 2) ineffective assistance of counsel; and 24 3) insufficient evidence. 25 //// 26 //// 1 1 The September 15, 2011 order granted petitioner twenty-one days to inform the 2 court whether he wished to proceed on the exhausted claims only or whether he wished to stay 3 this action in order to exhaust the unexhausted claims. If petitioner sought a stay, petitioner was 4 directed to address whether he sought the stay pursuant to the procedures outlined in Rhines v. 5 Weber, 544 U.S. 269 (1995) or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). The September 6 15, 2011 order set forth the standards for stays pursuant to both Rhines and Kelly. 7 On September 29, 2011, petitioner filed a motion to stay. Petitioner states that he 8 is requesting a stay pursuant to Kelly because he is exhausting four claims: 1) ineffective 9 assistance of counsel; 2) insufficient evidence; 3) suggestive photo lineup; and 4) ineffective 10 assistance of appellate counsel. 11 As discussed in the September 15, 2011 order, for a stay pursuant to Kelly, the 12 petitioner amends his petition to delete any unexhausted claims, and the court then stays and 13 holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity 14 to proceed to state court to exhaust the deleted claims. King v. Ryan, 564 F.3d 1133, 1135 (9th 15 Cir. 2009) (discussing procedures for staying habeas actions pursuant to Kelly). Later, the 16 petitioner amends his petition to add the newly-exhausted claims to the original petition. Id. 17 “A petitioner seeking to use the Kelly procedure will be able to amend his 18 unexhausted claims back into his federal petition once he has exhausted them only if those 19 claims are determined to be timely.” Id. at 1140-41. Because the Kelly procedure requires 20 petitioners to dismiss their unexhausted claims and then attempt to add them back into the federal 21 petition later, the Kelly procedure does not protect a petitioner’s unexhausted claims from 22 untimeliness. 23 Good cause appearing, petitioner’s motion to stay pursuant to Kelly is granted. 24 Petitioner did not file an amended petition containing his exhausted claims only. Rather than 25 requiring petitioner to file an amended petition, the undersigned orders the unexhausted claims 26 stricken. Once petitioner exhausts his unexhausted claims, he shall immediately file a notice of 2 1 exhaustion and an amended petition containing all of his exhausted claims. 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Petitioner’s motion to stay (Dkt. No. 7) is granted; 4 2. This action is administratively stayed pending petitioner’s exhaustion of 5 unexhausted claims; 6 7 3. The three unexhausted claims contained in the petition are stricken. DATED: October 13, 2011 8 9 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 10 11 do2252.sta 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?