Barkley v. Lizarraga

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 05/11/15 granting 6 Motion to Proceed IFP; denying 7 Motion to Stay with leave to file an amended motion to stay, under the guidelines set forth above, within 21 days after the filing date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERMAINE BARKLEY,

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No. 2:15-cv-0655 AC P

Petitioner,
v.

ORDER

JOE LIZARRAGA,
Respondent.

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Petitioner, a state prisoner at Mule Creek State Prison, proceeds pro se with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner requests leave to proceed in forma

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pauperis and has filed a motion to stay and abey his petition while petitioner exhausts additional

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claims in the state courts.

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Examination of the in forma pauperis application, ECF No. 6, demonstrates that petitioner

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is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis

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will be granted. See 28 U.S.C. § 1915(a).

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Preliminary review of the petition, ECF No. 5, indicates that it asserts two claims – denial

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of petitioner’s right to fully confront and cross-examine a witness, and ineffective assistance of

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trial counsel. It appears that both claims have been exhausted on direct appeal and pursuant to a

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petition for review decided by the California Supreme Court. It further appears that this fully

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exhausted petition was protectively filed within a year after the California Supreme Court’s denial
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of review on April 30, 2014. See 28 U.S.C. § 2244(d)(1) (federal petition for writ of habeas

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corpus must be filed within one year after the challenged judgment became final in the state

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courts by the conclusion of direct review).1

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Petitioner seeks a stay of this action so that he can “exhaust his lower court remedies on

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some newly claim issues (sic) as well as his discovery.” ECF No. 7 at 1. Petitioner does not

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identify the new claims he seeks to exhaust.

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There are two procedures available to a federal habeas petitioner seeking a stay of his

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federal petition while exhausting additional claims in the state courts. See King v. Ryan, 564

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F.3d 1133 (9th Cir. 2009). Petitioner appears to seek a stay under the “Kelly procedure.” See

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), cert. den., 538 U.S. 1042 (2003), overruled in part

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on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The Ninth Circuit Court of

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Appeals has described the “Kelly procedure” as a three-step process, as follows:

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(1) a petitioner amends his petition to delete any unexhausted
claims; (2) the court stays and holds in abeyance the amended, fully
exhausted petition, allowing the petitioner the opportunity to
proceed to state court to exhaust the deleted claims; and (3) the
petitioner later amends his petition and re-attaches the newlyexhausted claims to the original petition.

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King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). The instant petition, asserting only

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exhausted claims, satisfies the first step under Kelly.

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Significantly, “the Kelly procedure . . . is not premised upon a showing of good cause.”

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King, 564 F.3d at 1140. However, “[a] petitioner seeking to use the Kelly procedure will be able

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to amend his unexhausted claims back into his federal petition once he has exhausted them only if

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those claims are determined to be timely” under AEDPA’s statute of limitations. Id. at 1140-41.

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Thus the Kelly procedure, in contrast to the procedure approved in Rhines v. Weber, 544 U.S.

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269, 277 (2005), does not protect a petitioner’s unexhausted claims from expiring during a stay.

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AEDPA’s limitation period is calculated from the “latest” of four commencement dates. See 28
U.S.C. § 2244(d)(1)(A) (date on which the judgment became final); § 2244(d)(1) (B) (date on
which the illegal state-action impediment to filing was removed); § 2244(d)(1)(C) (date on which
the asserted constitutional right was initially recognized by the U.S. Supreme Court and made
retroactive to cases on collateral review); and § 2244(d)(1)(D) (date on which the factual
predicate of the claim could have been discovered through due diligence).
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King, 564 F.3d at 1140-41; see also Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the

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filing of a state habeas petition, the filing of a federal habeas petition does not toll AEDPA’s

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statute of limitations). “[T]he Kelly procedure, unlike the Rhines procedure, does nothing to

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protect a petitioner’s unexhausted claims from untimeliness in the interim.” King, 564 F.3d at

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1141.

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Under Kelly, if a newly exhausted claim is time-barred, it may be added in an amended

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petition only if it “relates back” to petitioner’s original exhausted claims. However, a new claim

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does not “relate back” to the original petition simply because it arises from “the same trial,

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conviction, or sentence.” Mayle v. Felix, 545 U.S. 644, 662-64 (2005). Rather, the new claim

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must be of the same “time and type” as the original exhausted claims, and share a “common core

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of operative facts” with those claims. Id. at 659.

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“A Kelly stay may be denied where the petitioner’s new claims are deemed to be untimely

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and do not relate back to exhausted claims,” that is, if “granting such a stay to permit exhaustion .

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. . would be futile.” Spivey v. Gipson, 2013 WL 4517896, *9, 18 (E.D. Cal. 2013) (citing King,

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564 F.3d at 1141-43). “If amendment is futile, a stay is inappropriate.” Figueroa v. Lea, 2014

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WL 1028500, * 5 (S.D. Cal. 2014) (citing Haskins v. Schriro, 2009 WL 3241836, *3 (D. Ariz.

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2009).

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The alternate procedure for staying a federal habeas action was set forth by the Supreme

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Court in Rhines v. Weber, 544 U.S. 269, 277 (2005). Under Rhines, a district court may stay a

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petitioner’s “mixed petition” (one containing both exhausted and unexhausted claims), while

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petitioner returns to state court to exhaust the unexhausted claims. Id. at 277-78; see also King,

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564 F.3d at 1140. A stay under Rhines is appropriate only when petitioner has demonstrated

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good cause for failing to previously exhaust his claims in state court, and is not available if the

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unexhausted claims are “plainly meritless,” or petitioner has engaged in “abusive litigation tactics

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or intentional delay.” Rhines, 544 U.S. at 277-78.

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“[B]oth Kelly and Rhines are directed at solving the same problem -- namely, the

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interplay between AEDPA's one-year statute of limitations and the total exhaustion requirement

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first articulated in Rose v. Lundy, 455 U.S. 509 (1982).” King, 564 F.3d at 1136.
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In the present case, petitioner has not identified the new claims he intends to exhaust in

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the state courts. Most of petitioner’s briefing focuses on his frustration in obtaining a hard copy

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of his trial court record – petitioner was apparently provided digital copies which were

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confiscated by the state prison. In order to consider petitioner’s request for a stay of this action,

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petitioner must specifically identify the claims he seeks to exhaust in the state courts, and explain

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why these claims were not previously exhausted. Petitioner must also articulate whether he is

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seeking a stay under Kelly or Rhines. If petitioner seeks a stay under Kelly, he need not file an

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amended petition; however, if petitioner seeks a stay under Rhines, he must file an amended

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petition that includes his unexhausted claims. For these reasons, petitioner’s instant stay request

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is denied without prejudice.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis, ECF No. 6, is granted.

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2. Petitioner’s second motion to stay this action, ECF No. 7, is denied with leave to file

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an amended motion to stay, under the guidelines set forth above, within twenty-one days after the

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filing date of this order.

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DATED: May 11, 2015

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