Butler v. Johnson

Filing 16

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/12/2014 DENYING petitioner's 2 request. This action stands submitted for decision, as respondent has filed an answer and petitioner a traverse. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AMY MARIE BUTLER,

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No. 2:14-cv-0683-MCE-EFB P

Petitioner,
v.

ORDER

D.K. JOHNSON, Warden,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. She commenced this action by filing an application for a writ of

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habeas corpus, along with a request to “toll . . . time.” ECF Nos. 1, 2. She states in her request

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that that she has only presented this court with claims that are exhausted,1 but is “in the process of

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submitting new state claims to the superior court in the county of [her] conviction.” ECF No. 2.

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Petitioner’s request for the court to “toll” time must be denied, as her filing of a federal habeas

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petition does not toll the limitations period for purposes of 28 U.S.C. § 2244(d)(2).2 See Duncan

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Respondent disagrees, arguing in his answer that some of the claims are not exhausted,
but should nevertheless be denied on the merits. ECF No. 14 at 1-2, ¶ 3.
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Section 2244(d)(2) states:

The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
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v. Walker, 533 U.S. 167, 181-82 (2001). To the extent petitioner wishes for this action to be

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stayed pending her exhaustion of additional claims in state court, she must expressly request such

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relief in a motion to stay, and also identify the claims she wishes to exhaust and demonstrate that

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a stay for purposes of exhausting those claims in state court would be appropriate in this action.

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See Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002); Rhines v. Weber, 544 U.S. 269 (2005).

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Accordingly, IT IS HEREBY ORDERED that petitioner’s request (ECF No. 2) is denied.

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This action stands submitted for decision, as respondent has filed an answer (ECF No. 14) and

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petitioner a traverse (ECF No. 15).

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Dated: August 12, 2014.

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