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)

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