Gerrue v. Holland

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 1/22/15 ORDERING that within 30 days of the date of this order, petitioner shall file a motion to stay this action; failure to file a motion to stay will result in a recommendation of dismissal of this action.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WARREN GERRUE,

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No. 2: 15-cv-0045 WBS KJN P

Petitioner,

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v.

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KIM HOLLAND,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding without counsel, has filed a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. On January 8, 2015, the Fresno Division of the

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United States District Court for the Eastern District of California transferred this action to this

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court. (ECF No. 7.)

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In the petition, petitioner requests that this action be stayed while his “state appeals are

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still going.” (ECF No. 1 at 3.) Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) provides that a

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district court may stay a petition containing only exhausted claims and hold it in abeyance

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pending exhaustion of additional claims which may then be added to the petition through

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amendment. Kelly, 315 F.3d at 1070–71; King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). If

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a petition contains both exhausted and unexhausted claims, a petitioner seeking a stay under Kelly

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must dismiss the unexhausted claims from the petition and seek to add them back in through

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amendment after exhausting them in state court. King, 564 F.3d at 1138–39. The previously
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unexhausted claims, once exhausted, must be added back into the federal petition within the

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statute of limitations provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140–

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41. Under that section, a one-year limitation period for seeking federal habeas relief begins to run

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from the latest of the date the judgment became final on direct review, the date on which a state-

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created impediment to filing is removed, the date the United States Supreme Court makes a new

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rule retroactively applicable to cases on collateral review or the date on which the factual

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predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C.

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§ 2241(d)(1). A federal habeas petition does not toll the limitations period under 28 U.S.C. §

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2244(d)(2). Duncan v. Walker, 533 U.S. 167 (2001).

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Under Rhines v. Weber, 544 U.S. 269 (2005), a district court may stay a mixed petition in

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its entirety, without requiring dismissal of the unexhausted claims while the petitioner attempts to

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exhaust them in state court. King, 564 F.3d at 1139–40. Unlike the Kelly procedure, however,

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Rhines requires that the petitioner show good cause for failing to exhaust the claims in state court

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prior to filing the federal petition. Rhines, 544 U.S. at 277–78; King, 564 F.3d at 1139. In

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addition, a stay pursuant to Rhines is inappropriate where the unexhausted claims are “plainly

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meritless” or where the petitioner has engaged in “abusive litigation tactics or intentional delay.”

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Id.

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Petitioner is directed to file a motion to stay. In this motion, petitioner must indicate
whether he is seeking a stay pursuant to the procedures outlined in Kelly or Rhines.

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Accordingly, IT IS HEREBY ORDERED that within thirty days of the date of this order,

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petitioner shall file a motion to stay this action; failure to file a motion to stay will result in a

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recommendation of dismissal of this action.

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Dated: January 22, 2015

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Ger45.ord

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