Blount v. Soto

Filing 17

ORDER signed by Magistrate Judge Allison Claire on 1/14/2016 DISMISSING the second amended petition with leave to file a third amended petition within 30 days; the Clerk shall send petitioner a form form § 2254 habeas corpus applications; the document at ECF No. 14 is DISREGARDED ; and petitioner's 16 motion for an extension is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD BLOUNT,

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No. 2:15-cv-1809 KJM AC P

Petitioner,

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v.

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J. SOTO,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding without counsel on an application for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.

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Petitioner filed a motion for extension of time to file attachments to his habeas petition

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that indicated he may also be seeking to raise additional constitutional issues. ECF No. 7. He

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was ordered to file a notice clarifying whether he sought to amend the petition and add additional

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grounds for relief or whether he was seeking to provide additional documents without adding new

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claims. ECF No. 8. Petitioner proceeded to file the required notice and stated that he intended to

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add both an additional claim and additional documentation to support his existing claims. ECF

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No. 9. Upon receiving the clarification from petitioner, the court granted his motion for

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extension. ECF No. 10. Petitioner then filed a letter asking whether he needed to ask for a stay

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or file a new petition. ECF No. 11. The court informed petitioner that it could not tell him what

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action to take or how to manage his case and advised him of the procedures for requesting a stay
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under Rhines v. Weber, 544 U.S. 269 (2005), and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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ECF No. 12. Petitioner was also advised of the consequences of including unexhausted claims in

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his amended petition. Id. Petitioner has now filed a second amended petition. ECF No. 13. He

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has also filed another document that appears to be a copy of a California Supreme Court habeas

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petition (ECF No. 14) and a motion for extension of time (ECF No. 16).

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After reviewing the second amended petition, the court is unable to determine which

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portions are intended to state the grounds for relief petitioner is asserting and which portions are

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intended as exhibits. The first portion of the document consist of a completed habeas petition

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form. ECF No. 13 at 1-15. Ground One of the petition appears to be the new claim that

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petitioner sought to add and indicates that it is unexhausted. Id. at 5-6. It appears that petitioner

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may also be seeking a Rhines stay. Id. at 7. Petitioner then identifies Ground Two as

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“Unauthorized sentence; refer to memorandum of points and authority and exhibits.” Id. It

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appears that Ground Two was exhausted on direct appeal. Id. Unfortunately, the court is unable

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to identify what petitioner intends as Ground Two from the attached documents. Petitioner has

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attached three handwritten memoranda (id. at 16-27, 85-139, 160-182) and two typed state habeas

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petitions (id. at 212-228, 233-240) to the habeas petition form. The first handwritten

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memorandum appears to be in support of Ground One. Id. at 16-27. However, with respect to

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Ground Two, the court is unable to determine which of the remaining memoranda petitioner is

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referring to or whether the direction to “refer to memorandum of points and authority and

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exhibits” is supposed to include the grounds in the state habeas petitions. Moreover, these

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documents include more than a single ground for habeas relief.

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To further complicate matters, petitioner has also filed a document captioned for the

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California Supreme Court that is additionally labeled “Evidentiary Hearing Request at Federal

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Stage to Amend and Granted to File to Ex[h]aust.” ECF No. 14. Following the petition form,

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petitioner appears to have attached the same documents as are attached to his second amended

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petition, minus some transcripts and the typed state habeas petitions. It appears that petitioner

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may have intended to file this document with the California Supreme Court and inadvertently

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filed it in this case. If petitioner intentionally filed this document in this case, its purpose is

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unclear.

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Petitioner has also filed a motion for extension of time. ECF No. 16. It appears that what

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petitioner is actually seeking is a stay of this case pending exhaustion of his state court remedies

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for his new claim. Id. Petitioner indicates that he recently filed a petition in the California

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Supreme Court and is awaiting its disposition. Id. However, a review of the California Supreme

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Court’s online docket does not show any cases initiated by petitioner within the last year, making

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it appear more likely that the California Supreme Court petition at ECF No. 14 was intended to be

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filed in state court.

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Due to the court’s inability to understand the grounds petitioner is asserting in his second

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amended petition, the petition will be dismissed with leave to amend. The court will also

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disregard the substantially identical document with the California Supreme Court caption (ECF

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No. 14) and deny the motion for extension (ECF No. 16). In submitting a third amended petition,

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petitioner must comply with the following directions.

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The third amended petition must be on the form for § 2254 habeas petitions which will be

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provided to petitioner. Each ground for relief must be separately identified. For example, on the

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petition form for the second amended petition, petitioner identifies Ground Two as “Unauthorized

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sentence.” ECF No. 13 at 7. However, the attached memoranda appear to give more than one

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reason why petitioner believes his sentence is unauthorized. Each reason petitioner thinks his

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sentence is unauthorized must be identified as a separate ground for relief.

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The petition form has sections for four different grounds. If petitioner wants to state more

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than four grounds for relief, he may use additional sheets of paper to list each ground and attach

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them directly to the back of the petition form. The additional grounds must also be clearly and

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individually identified. If petitioner wants to attach a supporting memorandum, all of petitioner’s

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grounds for relief must be included in one memorandum and it must be separated into sections

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that clearly identify which ground they support. Petitioner should not file a separate

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memorandum for each ground. Petitioner does not need to re-file documents intended only as

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exhibits to the petition. However, if petitioner wants to attach exhibits, they must all be included
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after the petition and any supporting memorandum and the exhibits must be clearly labeled as

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exhibits.

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Petitioner has indicated that Ground One of the second amended petition has not been

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exhausted in state court and that he may be seeking a stay under Rhines. ECF No. 13 at 6-7; ECF

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No. 16. If the third amended petition includes any unexhausted claims and petitioner wants to

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stay the case under Rhines, he must file a separate motion for stay and abeyance at the same time

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he files the third amended petition. Petitioner is reminded that if he seeks to stay a petition

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containing both exhausted and unexhausted claims, Rhines requires that he (1) show good cause

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for not exhausting the claims in state court before filing this petition, (2) that the claim or claims

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

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intentionally delayed pursuing the litigation. Rhines, 544 U.S. at 277-78.

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If the third amended petition does not contain any unexhausted claims and petitioner

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wants to stay this case while he finishes exhausting his unexhausted claims in state court, then he

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must file a separate motion for a Kelly stay at the same time he files the third amended petition.

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A Kelly stay does not require a showing of good cause or potential merit. However, using the

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Kelly procedure means that any newly-exhausted claims that are added to the federal petition

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later by amendment must relate back to the claims in the stayed petition. In other words, “the

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Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner’s unexhausted

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claims from untimeliness” while the petitioner is exhausting his state court remedies. King v.

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Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009).

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If petitioner decides to file a third amended petition with only exhausted claims and does

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not request a stay, he is cautioned that any future attempt to amend the petition to add newly-

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exhausted claims might face challenges based on timeliness, the limitations applicable to second

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or successive petitions, and/or other procedural hurdles, depending on the circumstances.

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The court takes no position on whether petitioner’s current claims are timely or have
merit.

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Summary

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The second amended petition is dismissed because the court cannot tell why petitioner
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believes he is entitled to habeas relief. Petitioner may file a third amended petition and must

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follow the instructions above.

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The document that appears to be a petition for habeas relief in the California Supreme
Court is disregarded.
Petitioner’s motion for extension is denied because the second amended petition is being

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dismissed with leave to amend and petitioner must file a motion for a stay if he wants to stay this

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case while he finishes exhausting his state court remedies.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The second amended petition (ECF No. 13) is dismissed with leave to amend.

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Petitioner may file a third amended petition within thirty days of the service of this order. The

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third amended petition must bear the docket number assigned this case, must be labeled “Third

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Amended Petition,” and must follow the directions given in this order. If petitioner seeks a stay

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of this case under either Rhines or Kelly, he must file a separate motion for stay with the third

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amended petition. Failure to file a third amended petition in accordance with this order will result

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in a recommendation to dismiss this case.

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2. The Clerk of the Court is directed to send petitioner the form for § 2254 habeas corpus
applications.

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3. The document at ECF No. 14 shall be disregarded.

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4. Petitioner’s motion for extension (ECF No. 16) is denied.

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DATED: January 14, 2016

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