Reyes v. People of the State of California

Filing 3

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/12/16 ORDERING that petitioner shall submit, within 28 days from the date of this order, anaffidavit in support of his request to proceed in forma pauperis or the appropriate filing fee; Th e Clerk of the Court is directed to send petitioner a copy of the in forma pauperis form used by this district. Within 28 days of this order petitioner shall: file and serve a motion for stay and abeyance; Respondent shall file a response to petitioner's motion within 14 daysthereafter; The Clerk of the Court is directed to serve a copy of this order and the form Consent to Proceed Before a United States Magistrate Judge on Michael Patrick Farrell. (cc Michael Farrell) (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN MANUEL REYES,

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No. 2:16-cv-2822 GGH P

Petitioner,
v.

ORDER

PEOPLE OF THE STATE OF
CALIFORNIA,
Respondent.
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma pauperis

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affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). Petitioner

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will be provided the opportunity to either submit the appropriate affidavit in support of a request

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to proceed in forma pauperis or submit the appropriate filing fee.

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By virtue of reading the petition itself, the undersigned finds, however, that petitioner 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. The petition indicates that petitioner

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has not made 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 not

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be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest

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

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federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083,

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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.

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Nevertheless, on February 17, 2016, the Court of Appeals for the Ninth Circuit held that the

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Rhines stay and abeyance procedure applies to completely unexhausted petitions as well as mixed

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petitions. Mena v. Long, 813 F.3d 908 (9th Cir. 2016). Therefore the petitioner will be provided

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the opportunity to move for a stay under Mena and Rhines.

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The Ninth Circuit opinion in Mena significantly changes the manner in which wholly

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unexhausted federal habeas petitions are handled. The court held “that a district court has the

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discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set

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forth in Rhines. Mena, supra, 813 F.3d at 908. A district court may also properly stay a habeas

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petition and hold it in abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). See King v.

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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

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

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filing this action; (2) explain and demonstrate how his unexhausted claim is potentially

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meritorious; (3) describe the status of any pending state court proceedings on his unexhausted

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claim; and (4) explain how he has diligently pursued his unexhausted claim. Rhines, 544 U.S. at

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277–78.

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Based on the decision in Rhines, petitioner will be required to file a motion for stay and
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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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner shall submit, within twenty-eight (28) days from the date of this order, an

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affidavit in support of his request to proceed in forma pauperis or the appropriate

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filing fee; petitioner’s failure to comply with this order will result in a

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recommendation that this action be dismissed;

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2. The Clerk of the Court is directed to send petitioner a copy of the in forma pauperis

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form used by this district.

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

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stay and abeyance; failure to comply with this order will result in a recommendation that this

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action be dismissed as unexhausted;

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4. Respondent shall file a response to petitioner's motion within fourteen (14) days
thereafter;

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5. The Clerk of the Court is directed to serve a copy of this order and the form Consent to

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

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Attorney General.

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Dated: December 12, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/md; reye2822.101a

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