Kelley v. Ndoh

Filing 6

ORDER signed by Magistrate Judge Gregory G. Hollows on 06/16/16 granting 2 Motion to Proceed IFP. Within twenty-eight 28 days of this order petitioner shall: (a) file and serve amotion for stay and abeyance; and (b) include a statement indicating whether he wishes toproceed with the original petition or the amended petition; failure to comply with this order willresult in a recommendation that this action be dismissed as unexhausted.Respondent shall file a response to petitioners motion withi n fourteen 14 daysthereafter. The Clerk of the Court is directed to serve a copy of this order and the formConsent to Proceed Before a United States Magistrate Judge on Michael Patrick Farrell, SeniorAssistant Attorney General. (cc: Michael Farrell, Attorney General)(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ALAN KELLEY,

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No. 2:16-cv-1088 GGH HC

Petitioner,
v.

ORDER

ROSEMARY NDOH,
Respondent.

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INTRODUCTION
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

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pursuant to 28 U.S.C § 2254, together with a request to proceed in forma pauperis pursuant to 28

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U.S.C. § 1915. Plaintiff has submitted the affidavit required by § 1915(a) showing that plaintiff

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is unable to prepay fees and costs or give security for them. Accordingly, the request to proceed

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in forma pauperis will be granted. 28 U.S.C. § 1915(a).

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By virtue of reading the petition itself, the undersigned finds, however, that petition has

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failed to exhaust his state court remedies in regard to all claims. The claims to be reviewed in

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federal habeas must be presented to the California Supreme Court either by way of petitioning for

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direct review after an appeal has been denied in the California Court of Appeal, or by way of a

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habeas corpus petition presented to the state supreme court. Petitioner avers that he has not made

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such a presentation, terminating all efforts with the California Court of Appeal.
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The exhaustion of state court remedies is a prerequisite to the granting of a petition for a

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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). Thus, a waiver of exhaustion may

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not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the

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highest state court with a full and fair opportunity to consider all claims before presenting them to

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the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d

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1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

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A petition which includes only unexhausted claims may be dismissed on that basis.
However, on February 17, 2016, the Court of Appeals for the Ninth Circuit issued an opinion

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which may affect this case. Mena v. Long, 813 F.3d 908 (9th Cir. 2016) (holding that Rhines stay

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and abeyance procedure applies to completely unexhausted petitions as well as mixed petitions).

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Therefore the petitioner will be provided the opportunity to move for a stay under Mena and

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Rhines.

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DISCUSSION
The February 16, 2016 Ninth Circuit opinion in Mena significantly changes the manner in

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which wholly unexhausted federal habeas petitions are handled. The court held “that a district

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court has the discretion to stay and hold in abeyance fully unexhausted petitions under the

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circumstances set forth in Rhines. Mena, supra, 813 F.3d at 908. A district court may also

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properly stay a habeas petition and hold it in abeyance pursuant to Rhines v. Weber, 544 U.S. 269

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(2005. See King v. Ryan, 564 F.3d 1133, 1135 9th Cir. 2009).

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Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an

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unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Such a stay “eliminates entirely

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any limitations issue with regard to the originally unexhausted claims, as the claims remain

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pending in federal court[.]” King, 564 F.3d at 1140. However, to qualify for a stay under Rhines,

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a petitioner must: (1) show good cause for his failure to exhaust all his claims before filing this

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action; (2) explain and demonstrate how his unexhausted claim is potentially meritorious; (3)

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describe the status of any pending state court proceedings on his unexhausted claim; and (4)

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explain how she has diligently pursued his unexhausted claim. Rhines, 544 U.S. at 277–78.
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What constitutes good cause has not been precisely defined except to indicate at the outer

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end that petitioner must not have engaged in purposeful dilatory tactics, Rhines, 544 U.S. at 277-

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78, and that “extraordinary circumstances” need not be found. Jackson v. Roe, 425 F.3d 654,

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661–62 (9th Cir. 2005); see also Rhines, 544 U.S. at 279 (Stevens, J., concurring) (the “good

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cause” requirement should not be read “to impose the sort of strict and inflexible requirement that

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would trap the unwary pro se prisoner”) (internal citation omitted); id. (Souter, J., concurring)

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(pro se habeas petitioners do not come well trained to address tricky exhaustion determinations).

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“But as the Jackson court recognized, we must interpret whether a petitioner has “good cause” for

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a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court

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should only stay mixed petitions in ‘limited circumstances.’ We also must be mindful that

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AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their

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claims in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d 1019, 1023-24

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(9th Cir. 2008) (quoting Jackson, 425 F.3d at 661) (internal citations omitted).

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Recently, the Ninth Circuit stated that “a reasonable excuse, supported by evidence to

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justify a petitioner’s failure to exhaust,” will demonstrate good cause under Rhines. Blake v.

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Baker, 745 F.3d 977, 982 (9th Cir. 2014). In Blake, the Ninth Circuit held that ineffective

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assistance of counsel by post-conviction counsel can be good cause for a Rhines stay, however,

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bare allegations of state post-conviction IAC do not suffice. Id. at 983. The Blake court

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concluded that petitioner satisfied the good cause standard where he argued that his post-

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conviction counsel “failed to conduct any independent investigation or retain experts in order to

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discover the facts underlying his trial-counsel IAC claim; namely, evidence that Blake was”

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subject to severe abuse as a child and suffered from brain damage and psychological disorders.

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745 F.3d at 982 (internal quotes omitted). The petitioner supported this argument with extensive

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evidence, including psychological evaluation reports, a declaration by the private investigator

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who worked briefly for his post-conviction attorney, and thirteen declarations from petitioner’s

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family and friends describing his “abhorrent” childhood conditions. Id. at 982-83. The Blake

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court concluded that the petitioner had met the Coleman/Martinez standard to show good cause

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under Rhines.” Id. at 983-84 & n.7.
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Based on the decision in Rhines, petitioner will be required to file a motion for stay and

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abeyance in which he sets forth good cause for his failure to exhaust prior to filing the petition in

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this case, that his unexhausted claims are potentially meritorious, and that he has not been dilatory

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in proceeding on his claims.

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Good cause appearing, IT IS HEREBY ORDERED that:

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Petitioner is granted leave to proceed in forma pauperis;

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2.

Within twenty-eight (28) days of this order petitioner shall: (a) file and serve a

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motion for stay and abeyance; and (b) include a statement indicating whether he wishes to

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proceed with the original petition or the amended petition; failure to comply with this order will

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result in a recommendation that this action be dismissed as unexhausted;
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Respondent shall file a response to petitioner’s motion within fourteen (14) days

thereafter;
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The Clerk of the Court is directed to serve a copy of this order and the form

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Consent to Proceed Before a United States Magistrate Judge on Michael Patrick Farrell, Senior

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Assistant Attorney General.

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Dated: June 16, 2016

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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Ndoh.1088.amm

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