Montgomery v. Perry

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 7/16/15 ORDERING that 7 Motion to Stay is DENIED without prejudice to a motion in proper form. If plaintiff seeks a stay pending exhaustion of unexhausted claims, he must file a motion for a stay and abeyance within thirty days of the filing of this order. The motion must be in accordance with the appropriate procedures.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON MONTGOMERY,

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No. 2:15-cv-1220 AC P

Petitioner,
v.

ORDER

S. PERRY,
Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On July 2, 2015, petitioner filed a motion to stay and abey his

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federal habeas petition in order to exhaust state court remedies. ECF No. 7. Petitioner has

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consented to the jurisdiction of the undersigned magistrate judge for all purposes pursuant to 28

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U.S.C. § 636(c) and Local Rule 305(a). ECF No. 5.

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The exhaustion of state court remedies is a prerequisite to the granting of a petition for

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writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived

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explicitly by respondent’s counsel. 28 U.S.C. § 2254(b)(3). A petitioner satisfies the exhaustion

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requirement by providing the highest state court with a full and fair opportunity to consider all

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claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971);

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Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

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Petitioner does not require leave of this court to file a petition in the California Supreme Court.
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When a federal petition contains both exhausted and unexhausted claims (a so-called

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“mixed petition”), it may under some circumstances be stayed pending further exhaustion. A

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federal habeas court may stay a mixed petition and hold it in abeyance pursuant to Rhines v.

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Weber, 544 U.S. 269 (2005). Under Rhines, stay and abeyance are available only where (1) good

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cause is shown for petitioner’s failure to have first exhausted the claims in state court, (2) the

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claim or claims at issue potentially have merit, and (3) there has been no indication that petitioner

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has been intentionally dilatory in pursuing the litigation. Rhines, 544 U.S. at 277-78.

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The Ninth Circuit provides an alternative stay procedure that requires withdrawal of the

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unexhausted claims. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing three-step

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procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)). Under Kelly, the court may stay a

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petition containing only exhausted claims while allowing the petitioner to proceed to state court

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to exhaust additional claims. Id. (citing Kelly, 315 F.3d at 1070-71). Once the additional claims

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have been exhausted, the petitioner may amend his petition to add them back to the petition. This

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procedure does not require a showing of cause, but presents the possibility that petitioner’s claims

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may be time-barred for federal purposes once they are exhausted. Id. at 1135, 1140. The court

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may deny a request for stay under Kelly if it is clear that newly-exhausted claims would be time-

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barred. See id. at 1141.

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Petitioner’s motion does not specify whether the stay is sought under Rhines or Kelly and

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does not identify which claims are unexhausted or the legal basis for the requested stay. Id. The

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court will therefore deny plaintiff’s motion without prejudice to a motion in the proper form. Any

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such motion must specify the exhausted and unexhausted claims, identify the legal basis for the

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requested stay, and make the showing required by the governing law. If petitioner does not move

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for a stay and the petition is in fact mixed, the petition will be subject to dismissal on

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respondent’s motion following service. Petitioner is not required to await an order from this court

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staying the instant action before returning to state court to properly exhaust his state court

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remedies.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to stay is denied
without prejudice to a motion in proper form. If plaintiff seeks a stay pending exhaustion of
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unexhausted claims, he must file a motion for a stay and abeyance within thirty days of the filing

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of this order. The motion must be in accordance with the appropriate procedures.

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DATED: July 16, 2015

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