Brannigan v. Barnes

Filing 10

ORDER signed by Magistrate Judge Allison Claire on 11/1/13 ORDERING that 9 Motion to Proceed IFP is GRANTED; Petitioner is granted thirty days to file a motion for a stay and abeyance, identifying both his exhausted and unexhausted claims, and the procedure (Kelly or Rhines) under which he seeks a stay.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON R. BRANNIGAN,

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No. 2:13-cv-1810 MCE AC P

Petitioner,

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v.

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R.E. BARNES,

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ORDER

Respondent.

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By order filed on September 11, 2013, petitioner’s inapposite request for an extension of

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time1 to file a habeas petition was denied. ECF No. 3. Petitioner was advised that, in order to

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commence an action, he must file a petition within thirty days in accordance with the applicable

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rules. Id. Petitioner, a state prisoner proceeding pro se, has now filed a petition for a writ of

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

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

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

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28 U.S.C. § 1915(a).
Petitioner sets forth that he was convicted by a jury in 2011 of corporal injury to a spouse

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Presumably asking to extend the deadline established by 28 U.S.C. § 2244(d)(1).
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or co-habitant, making terrorist threats, false imprisonment and vandalism for which he was

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sentenced to a state prison term of 18 years and eight months. Petition at 1. Petitioner states that

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he is in the process of filing a second state court habeas petition to exhaust some of his claim, and

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he seeks a stay and abeyance pending exhaustion. Petition at 3. It is, however, unclear which if

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any of the ten grounds he sets forth as the basis for his challenge to his conviction and/or sentence

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have already been exhausted.

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For the court to consider his request for a stay, petitioner must file a motion to stay. A

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court may stay a petition and hold it in abeyance pursuant to either Rhines v. Weber, 544 U.S.

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269 (1995), or King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing three-step procedure of

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Kelly v. Small,2 315 F.3d 1063 (9th Cir. 2003) ). Kelly and Rhines set out different procedures

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and impose different requirements for obtaining a stay. Under Rhines, 544 U.S. at 277-78, a

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federal petition containing both exhausted and unexhausted claims may be stayed only if (1)

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petitioner demonstrates good cause for the failure to have first exhausted the claims in state court,

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(2) the claim or claims at issue potentially have merit, and (3) petitioner has not been dilatory in

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pursuing the litigation. Under Kelly, the court may stay a petition containing only exhausted

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claims while allowing the petitioner to proceed to state court to exhaust additional claims. King

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v. Ryan, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). Once the additional claims have

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been exhausted, the petitioner may then amend his petition to add them to the original petition if

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they are not time-barred. Id. at 1135, 1140-41. The court may deny a request for stay under

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Kelly if the new claims would clearly be barred by the federal statute of limitations upon

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exhaustion. See id. at 1141.

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Petitioner must file a motion for a stay and abeyance setting forth which claims have been

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exhausted and which he seeks to exhaust. Petitioner must also specify whether he seeks a stay

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pursuant to Rhines or Kelly. If petitioner elects to pursue a Rhines stay, he must demonstrate

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how he meets the requirements for such a stay as set forth above.

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Kelly was in part overruled on another ground by Robbins v. Carey, 481 F.3d 1143, 1149 (9th
Cir. 2007). Its stay and abeyance procedure remains available. King, 564 at 139 & n.4.
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Accordingly, IT IS ORDERED that:

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

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2. Petitioner is granted thirty days to file a motion for a stay and abeyance, identifying

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both his exhausted and unexhausted claims, and the procedure (Kelly or Rhines) under which he

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seeks a stay.

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DATED: November 1, 2013

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