Johnson v. Arnold

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 9/26/2016 DENYING the 18 motion to stay, without prejudice. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONNELL D. JOHNSON,

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No. 2:15-cv-1635-EFB P

Petitioner,

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v.

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ERIC ARNOLD,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.1 He has filed a motion for stay and abeyance pursuant to

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Rhines v. Weber, 544 U.S. 269 (2005), to “to add an ineffective assistance claim against his

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appellate and trial counsel . . . .” ECF No. 18 at 1. Respondent opposes the motion. ECF No. 22.

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For the reasons that follow, the motion is denied.

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A district court may not grant a petition for a writ of habeas corpus unless the petitioner

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has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). Where a federal habeas

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petitioner has failed to exhaust a claim in the state courts, he may ask the federal court to stay its

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consideration of his petition while he returns to state court to complete exhaustion. Under Rhines,

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a district court may stay a “mixed” petition in its entirety, without requiring dismissal of the

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This proceeding was referred to the assigned magistrate judge by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to the parties’ consent.
E.D. Cal. Local Rules, Appx. A, at (k).
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unexhausted claims while the petitioner attempts to exhaust them in state court.2 King v. Ryan,

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564 F.3d 1133, 1139-40 (9th Cir. 2009). Rhines requires that the petitioner show good cause for

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failing to exhaust the claims in state court prior to filing the federal petition. Rhines, 544 U.S. at

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277-78; King, 564 F.3d at 1139. A Rhines stay is inappropriate where the unexhausted claims are

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

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delay.” Id. Here, a Rhines stay is unavailable because (1) the petition contains three fully

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exhausted claims, and is therefore not “mixed,” see ECF Nos. 1 & 22 at 3, and (2) petitioner’s

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motion fails to demonstrate good cause for his failure to exhaust his ineffective assistance of

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counsel claims. The motion to stay must therefore be denied.3

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Accordingly, it is hereby ORDERED that the motion to stay (ECF No. 18) is denied

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without prejudice.

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Dated: September 26, 2016.

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“Mixed” petitions contain both exhausted and unexhausted claims.

The court notes that under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), a district court
may stay a petition containing only exhausted claims while allowing the petitioner to proceed to
state court to exhaust additional claims. King, 564 F.3d at 1135. If the newly exhausted claims
are not time-barred, the petitioner may amend his petition to add them to the pending petition.
See id. at 1140-41. However, if the newly exhausted claims would be time-barred, amendment
would be futile and a stay would be inappropriate.
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