Plascencia v. People of the State of California

Filing 15

ORDER signed by Magistrate Judge Kendall J. Newman on 2/27/15 ORDERING that Petitioners motion to stay 11 is granted pursuant to Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2002); Within 30 days from the date of any order by the California Su preme Court addressing petitioners habeas petition, petitioner shall file a motion to lift the stay of this action; Petitioners request 14 is denied without prejudice; and the Clerk of the Court is directed to administratively close this case.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE PLASCENCIA, 12 Petitioner, 13 14 No. 2:14-cv-2412 WBS KJN P v. ORDER DAVE DAVEY, WARDEN, 15 Respondent. 16 17 I. Introduction Petitioner is a state prisoner, proceeding without counsel, with a petition for a writ of 18 19 habeas corpus pursuant to 28 U.S.C. § 2254. This action is proceeding on the original petition 20 filed October 14, 2014. On February 11, 2015, petitioner filed a request to delay the decision in 21 the instant action because he is in the process of exhausting additional claims in the California 22 Supreme Court. On February 18, 2015, respondent filed a conditional non-opposition to the 23 motion for stay, provided the stay is granted pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 24 2002). (ECF No. 13 at 1-2.) Respondent confirms that petitioner filed a habeas petition in the 25 California Supreme Court on January 26, 2015. (ECF No. 13 at 1.) As set forth more fully 26 below, petitioner’s motion for stay is granted under Kelly, 315 F.3d at 1071. 27 //// 28 //// 1 1 II. Motion to Stay 2 A state prisoner must exhaust available state remedies before a federal habeas court will 3 consider his claim. See 28 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 520 4 (1982) ( “Our interpretation of § [ ] 2254(b) [ ] provides a simple and clear instruction to potential 5 litigants: before you bring any claims to federal court, be sure that you first have taken each one 6 to state court.”). This “exhaustion requirement” is met “once the federal claim has been fairly 7 presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971). 8 9 A petition containing both exhausted and unexhausted claims is referred to as a “mixed” petition. Rhines v. Weber, 544 U.S. 269, 271 (2005). In Rhines, the United States Supreme 10 Court addressed “whether a federal district court has discretion to stay [a] mixed petition to allow 11 the petitioner to present his unexhausted claims to the state court in the first instance, and then to 12 return to federal court for review of his perfected petition.” Id. at 271-72. Here, the petition 13 contains only exhausted claims, and is therefore not a “mixed” petition. Thus, a stay pursuant to 14 Rhines is not appropriate. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (explaining that 15 “Rhines applies to stays of mixed petitions” -- not “fully exhausted petitions”). 16 Nevertheless, district courts have discretion to stay proceedings when confronted with a 17 petition that contains only exhausted claims. Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 18 2002); see also Scott v. Lewis, 2013 WL 2951042, at *1 (N.D. Cal. June 14, 2013) (“It is well- 19 settled that a district court has the discretion to hold in abeyance a petition containing only 20 exhausted claims.”). 21 22 23 24 A stay should be granted in exceptional cases if: (1) the claims the petition seeks to pursue are cognizable under § 2254; (2) there is a likelihood of prejudice to the petitioner should a stay be denied; and (3) there is no evidence that the motion for a stay is brought to delay, to vex, or harass, or that the request is an abuse of the writ. Scott, at *1 (citing Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993)). 25 Here, petitioner requests a stay of the proceedings so that he can exhaust ineffective 26 assistance of counsel claims presently pending before the California Supreme Court. Such claims 27 are cognizable habeas claims, and there is a likelihood of prejudice to petitioner should the stay 28 be denied. Finally, there is no evidence that petitioner brought his request for stay to delay, vex 2 1 or harass, or that the request is an abuse of the writ, and respondent does not oppose such stay. 2 Accordingly, petitioner’s motion for stay is granted under Kelly. 3 III. Subsequent Request 4 In addition, on February 17, 2015, petitioner filed a document styled “Request to allow 5 substantial evidence. . . .,” but such filing appears to address the merits of the presently 6 unexhausted claims rather than plaintiff’s arguments in support of his request to stay this case 7 pending exhaustion. Thus, petitioner’s request to allow evidence is denied without prejudice; 8 petitioner may opt to include such evidence in any proposed amended petition submitted 9 following exhaustion of the additional claims. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. Petitioner’s motion to stay (ECF No. 11) is granted pursuant to Kelly v. Small, 315 12 F.3d 1063, 1071 (9th Cir. 2002); 13 2. Within thirty days from the date of any order by the California Supreme Court 14 addressing petitioner’s habeas petition, petitioner shall file a motion to lift the stay of this action; 15 3. Petitioner’s request (ECF No. 14) is denied without prejudice; and 16 4. The Clerk of the Court is directed to administratively close this case. 17 Dated: February 27, 2015 18 19 /plas2412.stay 20 21 22 23 24 25 26 27 28 3

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