Bohannan v. Muniz

Filing 34

ORDER signed by Magistrate Judge Allison Claire on 4/23/18 ORDERING petitioner shall, within twenty-one (21) days after the filing date of this order, file and serve a supplemental brief informing the court whether petitioners motion to stay this action is made pursuant to Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Within fourteen (14) days after service of petitioners supplemental brief, respondent shall file and serve a response.(Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELLY LEE BOHANNAN,

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Petitioner,

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v.

No. 2:16-cv-1342 TLN AC P

ORDER

WILLIAM L. MUNIZ,

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Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

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writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. See ECF No. 1. Respondent has filed

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an answer, ECF No. 20; petitioner filed a reply, ECF No. 33. However, prior to filing his

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substantive reply, petitioner filed a motion to stay this action while he exhausts additional claims

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in the state courts. See ECF No. 31. For the reasons set forth below, petitioner will be directed to

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file a supplemental brief informing the court whether his motion to stay this action is made

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pursuant to Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003); and respondent will be directed to file a response.
Petitioner seeks a stay of this action under Rhines “and/ or” Kelly. ECF No. 31 at 1. The

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motion responds to the substance of respondent’s answer to the petition. Petitioner

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explains, id. at 2-3:

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Petitioner has discovered upon review of respondent’s answer to
petition for writ of habeas corpus that petitioner’s first, second, and
fourth claims are non-cognizable state law claims and the only way
to properly remedy [this] . . . is to assert a Sixth Amendment IAC
claim which applies equally to both trial and appellate counsel. . . .
Also, petitioner has now properly submitted Claim [Fourth] [sic]
before the California Supreme Court as upon review of
respondent’s answer it was determined to be unexhausted, therefore
petitioner is attempting to exhaust. . . .

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Petitioner has attached to his motion a draft copy of his new state habeas corpus petition. See

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ECF No. 31 at 11-6 (Ex. A). The state petition identifies the following single ground for relief

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(with additional supporting facts), id. at 13:

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The Sixth and Fourteenth U.S. Constitutional Amendment of the
right to effective assistance of counsel which applies equally to
both trial and appellate counsel. Petitioner’s rights were violated
under the Due Process Clause 6th & 14th U.S. Con. Amendments
and petitioner was prejudiced by counsel’s omissions and
ineffectiveness.

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This petition was apparently filed in the California Supreme Court on February 20, 2018 and

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remains pending as of this writing.1

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In further support of his motion, petitioner has attached a “proposed amended” federal

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habeas petition. See ECF No. 31 at 18-46 (Ex. B).2 Compared with the original petition (ECF

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No. 1), the proposed amended petition (ECF No. 31) redesignates prior Claim Three as Claim

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Four (cf. ECF No. 1 at 16 and ECF No. 31 at 33), and adds the above new IAC claim as new

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Claim Three (see ECF No. 31 at 22). The new claim is set forth only on the form portion of the

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proposed amended habeas petition. Id.

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In his motion to stay, filed February 2, 2018, petitioner states that his new state petition is
“currently pending in the California Supreme Court.” ECF No. 31 at 1. However, review of the
case information website operated by the California Supreme Court appears to indicate that
petitioner filed the petition on February 20, 2018, which as of this writing remains pending.
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also
Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate
determination by sources whose accuracy cannot reasonably be questioned).
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This exhibit, which was paginated upon its recent docketing in this court, includes its original
pagination when docketed in the Northern District prior to its transfer to this court.
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The court does not presently address the merits or potential merits of petitioner’s stay

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request. Rather, the court informs petitioner that the legal standards and potential consequences

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for staying a federal habeas petition under Rhines and Kelly, while petitioner exhausts additional

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claims in the state court, are quite different. A Rhines stay is available for a petition that (1) is

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“mixed,” that is, containing both exhausted and unexhausted claims, or (2) contains only

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unexhausted claims. See Rhines, 544 U.S. at 275-78; see also Mena v. Long, 813 F.3d 907, 910

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(9th Cir. 2016). A Rhines stay preserves the federal filing date for unexhausted claims contained

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in the federal petition, thus potentially avoiding a statute of limitations challenge. However, to

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obtain a stay under Rhines, the petitioner must show that (1) good cause exists for his failure to

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earlier exhaust his claim(s) in the state courts, (2) the claim(s) at issue potentially have merit, and

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(3) petitioner has not intentionally delayed pursuing the litigation. Rhines, at 544 U.S. at 277-78.

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Alternatively, a petitioner may seek to stay an exhausted-claims-only petition pursuant to

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Kelly. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (recounting three-step procedure

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under Kelly). Under the Kelly procedure, the court may stay a petition containing only exhausted

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claims while allowing the petitioner to proceed to state court to exhaust additional claims. The

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procedure under Kelly is as follows: “(1) a petitioner amends his petition to delete any

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unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted

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petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted

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claims; and (3) the petitioner later amends his [federal] petition” to reincorporate the newly

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exhausted claims. King, 564 F.3d at 1139 (citing, inter alia, Kelly, 315 F.3d at 1070-71). The

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Kelly procedure does not require petitioner to demonstrate good cause or that the claims have

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potential merit. However, using the Kelly procedure means that any newly-exhausted claims later

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added to the federal petition by amendment must “relate back” to the claims in the stayed petition

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or otherwise satisfy applicable statute of limitations requirements. In other words, “the Kelly

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

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from untimeliness in the interim.” King at 1141.

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Petitioner’s instant motion and proposed amended petition appear to reflect the stay-and-

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abeyance procedure under Rhines. However, because petitioner’s motion expressly seeks a stay
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based on Rhines “and/or” Kelly, demonstrating petitioner’s failure to distinguish the two

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procedures, he will be tasked with making a choice in his supplemental brief.

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In addition, because respondent has filed an answer to the original petition, respondent

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will be directed to file a response to petitioner’s supplemental brief addressing any potential

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prejudice to respondent should this court grant petitioner’s motion, as well the potential merit of

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petitioner’s proferred new claim.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner shall, within twenty-one (21) days after the filing date of this order, file and

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serve a supplemental brief informing the court whether petitioner’s motion to stay this action is

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made pursuant to Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003).

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2. Within fourteen (14) days after service of petitioner’s supplemental brief, respondent

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shall file and serve a response.

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SO ORDERED.

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DATED: April 23, 2018

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