Flynn v. Paramo

Filing 16

ORDER signed by Magistrate Judge Craig M. Kellison on 11/05/14 granting 10 Motion to Dismiss. Petitioner's motion for a stay 13 is denied. Petitioner's petition for a writ of habeas corpus is dismissed with leave to file an amended petition containing only exhausted claims; petitioner shall file an amended petition within 30 days of the date of this order. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES FLYNN,

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No. 2:14-CV-0909-CMK-P

Petitioner,
vs.

ORDER

DANIEL PARAMO,
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this

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case is before the undersigned as the presiding judge for all purposes, including entry of final

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judgment. See 28 U.S.C. § 636(c). Pending before the court are: (1) respondent’s motion to

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dismiss the petition as unexhausted; and (2) petitioner’s motion for an order staying the matter

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and holding further consideration of the petition in abeyance pending exhaustion in state court.

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Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required

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before claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy,

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455 U.S. 509 (1982); see also Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003); Hunt v.

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Pliler, 336 F.3d 839 (9th Cir. 2003). Claims may be denied on the merits notwithstanding lack of
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exhaustion. See 28 U.S.C. § 2254(b)(2). “A petitioner may satisfy the exhaustion requirement

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in two ways: (1) by providing the highest state court with an opportunity to rule on the merits of

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the claim . . .; or (2) by showing that at the time the petitioner filed the habeas petition in federal

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court no state remedies are available to the petitioner and the petitioner has not deliberately

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by-passed the state remedies.” Batchelor v. Cupp , 693 F.2d 859, 862 (9th Cir. 1982) (citations

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omitted). The exhaustion doctrine is based on a policy of federal and state comity, designed to

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give state courts the initial opportunity to correct alleged constitutional deprivations. See Picard

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v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.

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In this case, it is undisputed that petitioner’s petition contains both exhausted and

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unexhausted claims. The question becomes whether a stay is appropriate. When, as in this case,

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a stay-and-abeyance motion is filed, there are two approaches for analyzing the motion,

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depending on whether the petition is mixed or fully exhausted. See Jackson v. Roe, 425 F.3d

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654, 661 (9th Cir. 2005). If the petitioner seeks a stay-and-abeyance order as to a mixed petition

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containing both exhausted and unexhausted claims, the request is analyzed under the standard

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announced by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). See Jackson, 425

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F.3d at 661. In this case, petitioner specifically seeks a stay under Rhines.

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Under Rhines, as a threshold condition for this court to exercise its discretion to

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issue a stay-and-abeyance order as to mixed petitions, the court must determine that there was

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good cause for failing to exhaust claims before raising them in the federal case. See Rhines v.

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Weber, 544 U.S. at 277. If there is good cause for petitioner’s failure to exhaust, it may be an

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abuse of discretion to deny stay and abeyance where there is no indication of intentional dilatory

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litigation tactics. See id. at 278. Stay and abeyance is not appropriate where the unexhausted

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claim is plainly meritless. See id. at 277.

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In his motion for a stay, petitioner states that he has no knowledge of the legal

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process and that he has been transferred to a prison hundreds of miles from his prisoner legal

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assistant. The court agrees with respondent that this fails to establish good cause under Rhines.

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Specifically, petitioner has not offered any explanation for his failure to present all the claims he

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now raises in the instant federal petition to the state courts earlier. While petitioner claims that

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he is ignorant of the law and, presumably, that this is the reason he could not file in state court

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earlier, petitioner has not stated what efforts he took to prepare his state court petition, what

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efforts he made to obtain counsel, or otherwise shown how his lack of knowledge of the legal

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process impacted his ability to present all his claims in state court prior to filing his federal

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petition.

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Petitioner will be provided an opportunity to proceed on his exhausted claims by

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filing an amended petition deleting all unexhausted claims. If petitioner does not do so within

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the time provided, the original petition will be dismissed without prejudice as unexhausted.

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Accordingly, IT IS HEREBY ORDERED that:

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Respondent’s motion to dismiss (Doc. 10) is granted;

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2.

Petitioner’s motion for a stay (Doc. 13) is denied:

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Petitioner’s petition for a writ of habeas corpus is dismissed with leave to

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file an amended petition containing only exhausted claims; and

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Petitioner shall file an amended petition within 30 days of the date of this

order.

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DATED: November 5, 2014
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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