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