Ansley v. Foulk

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/10/14 granting 4 Motion for a Rhines Stay. Petitioner is directed to inform this court and file a request to lift the stay within 30 days of a decision by the California Supreme Court concluding state habeas review. The clerk of court shall administratively close this case pending exhaustion. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD ANSLEY,

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No. 2:14-cv-2376 CKD P

Petitioner,

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v.

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FRED FOULK,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction in the

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Lassen County Superior Court for possession of a sharp instrument while confined in prison.

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(ECF No. 1 at 2.) Previously this court determined that the petition was “mixed,” containing both

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exhausted and unexhausted claims. (ECF No. 3.) Before the court is petitioner’s motion to stay

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this action pending the exhaustion of state remedies pursuant to Rhines v. Weber, 544 U.S. 269

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(2005). (ECF No. 4.)

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Under the Rhines procedure, a petitioner may proceed on a mixed petition, and his

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unexhausted claims remain pending in federal court while he returns to state court to exhaust

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them. See Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded that a district

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court has discretion to stay a mixed petition to allow a petitioner time to return to state court to

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present unexhausted claims.”). To obtain a Rhines stay, the petitioner must show that (1) the
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unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his earlier

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failure to exhaust state remedies. 544 U.S. 269.

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In his unexhausted claim, petitioner asserts that his trial attorney failed to properly

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investigate his case and present exonerating evidence, violating his Sixth Amendment right to

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effective assistance of counsel. (ECF No. 1 at 9; see ECF No. 4 at 5-7.) Under Rhines, a district

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court abuses its discretion to grant a stay when petitioner’s unexhausted claim is “plainly

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meritless.” 544 U.S. at 277; see also Cassett v. Stewart, 406 F.3d 614, 623-624 (9th Cir. 2005)

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(“We now join our sister circuits . . . and hold that a federal court may deny an unexhausted

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petition on the merits only when it is perfectly clear that the applicant does not raise even a

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colorable federal claim.”). Here, the court concludes that this claim has sufficient potential merit

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to satisfy the Rhines test.

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The court further concludes that petitioner has shown good cause under Rhines and has

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not engaged in dilatory litigation tactics. (See ECF No. 4 at 4-5, 8-9.) Accordingly, the court will

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grant petitioner’s motion to stay this action pending his exhaustion of state remedies as to his

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ineffective assistance claim.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for a Rhines stay (ECF No. 4) is granted;

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2. Petitioner is directed to inform this court and file a request to lift the stay within thirty

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days of a decision by the California Supreme Court concluding state habeas review. Failure to

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timely inform the court will result in dismissal of the federal claim; and

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3. The Clerk of Court shall administratively close this case pending exhaustion.
Dated: December 10, 2014

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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / ansl2376.rhines

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