Odom v. Adams

Filing 12

ORDER signed by Magistrate Judge Allison Claire on 08/08/17 ordering respondent's deadline to respond to the petition is vacated and will be re-set at a later date. Petitioner's motion for stay 11 is denied without prejudice. 3. Within thirty days of service of this order, petitioner must do one of the following: a. File a motion for a stay under Kelly; b. File a motion to amend the petition to add in the unexhausted claims with a copy of the proposed amended petition attached and file a motion for a stay under Rhines; c. File a notice stating that she wants to proceed on the current petition without a stay. If petitioner does not take any action, the case will proceed on the original petition without a stay. (Plummer, M) Modified on 8/8/2017 (Plummer, M).

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RYAN BIGOSKI ODOM,

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No. 2:17-cv-0233 JAM AC P

Petitioner,
v.

ORDER

D.G. ADAMS,
Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a petition for

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a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order filed June 16, 2017, respondent

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was given sixty days to respond to the petition. ECF No. 7. Respondent has not yet filed his

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response and petitioner now moves for a stay and abeyance under Rhines v. Weber, 544 U.S. 269

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(2005). ECF No. 11. In her motion for stay, petitioner states that she “has newly discovered

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evidence that needs to be amended into the complaint but isn’t exhausted in the lower courts.” Id.

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at 1. She also alleges ineffective assistance of counsel, though it is unclear whether these

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allegations are the unexhausted claims she seeks to add to the petition or simply part of the

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justification for her motion. Id. at 1-2.

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A stay under Rhines allows a petitioner to stay a mixed petition. In other words, a

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petitioner can stay a petition containing both exhausted and unexhausted claims and preserve the

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federal filing date for the unexhausted claims. In order to obtain a stay under Rhines, the
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petitioner must show that (1) good cause exists for her failure to have first exhausted the claims in

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state court, (2) the claim or claims at issue potentially have merit, and (3) there has been no

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indication that petitioner has intentionally delayed pursuing the litigation. Rhines, at 544 U.S. at

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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 v. Small, 315 F.3d 1063 (9th Cir. 2003). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir.

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2009) (citing three-step procedure of Kelly). Under the Kelly procedure, the court may stay a

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petition containing only exhausted claims while allowing the petitioner to proceed to state court

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to exhaust additional claims. Id. (citing Kelly, 315 F.3d at 1070-71). The procedure under a

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Kelly stay is as follows: “(1) a petitioner amends his petition to delete any unexhausted claims;

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(2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the

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petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the

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petitioner later amends his [federal] petition” to reincorporate the newly exhausted claims. Id.

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The Kelly stay-and-abeyance procedure has no requirement of a good cause showing or that the

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claims are potentially meritorious. However, using the Kelly procedure means that any newly-

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exhausted claims later added to the federal petition by amendment must relate back to the claims

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in the stayed petition. In other words, “the Kelly procedure, unlike the Rhines procedure, does

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nothing to protect a petitioner’s unexhausted claims from untimeliness in the interim.” Id. at

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1141.

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Petitioner has indicated that all claims contained in the current petition have been

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presented to the California Supreme Court. ECF No. 1 at 12. Because it appears that the current

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petition is fully exhausted, petitioner cannot obtain a stay under Rhines and the motion will be

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denied. However, the denial will be without prejudice and petitioner must decide how she would

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like to proceed. Petitioner is advised that she does not require and should not wait for an order

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from this court to exhaust her claims in state court and she should pursue them in state court

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without delay.

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Petitioner’s first option is to file a motion for a stay under Kelly. Because the petition is
already fully exhausted, petitioner need only request a stay to allow her to return to state court to
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exhaust her new claims. Once those claims have been exhausted, she will need to file a motion in

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this court asking to amend the petition to add in the newly exhausted claims. A stay under Kelly

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does not provide any protection from untimeliness for the unexhausted claims while petitioner is

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in state court.

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Petitioner’s second option is to file a motion to amend the petition that includes a copy of

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the proposed amended petition. At the same time, she must file a motion for a stay under Rhines.

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The motion for stay must (1) provide a good reason why petitioner did not exhaust her claims in

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state court before filing them in this court, (2) show that the unexhausted claim or claims

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potentially have merit, and (3) show that she has not intentionally delayed in bringing the

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unexhausted claims. Rhines, 544 U.S. at 277-78. If the motions to amend and to stay are

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granted, then the entire petition will be stayed while petitioner returns to state court to exhaust her

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new claims. Once the claims have been exhausted, she will notify this court and the case will

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proceed on the amended petition and the originally unexhausted claims will have their initial

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filing date preserved. The court does not guarantee that petitioner’s claims will be timely even if

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she is granted a stay under Rhines.

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Finally, petitioner may proceed on the current, fully exhausted petition without a stay. In

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the event petitioner chooses to proceed on an exhausted-claims-only petition without a stay, she is

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cautioned that any future attempt to amend the petition to add newly-exhausted claims might face

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challenges based on timeliness, the limitations applicable to second or successive petitions, and/or

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other procedural hurdles, depending on the circumstances.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Respondent’s deadline to respond to the petition is vacated and will be reset at a later

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date.

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2. Petitioner’s motion for stay (ECF No. 11) is denied without prejudice.

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3. Within thirty days of service of this order, petitioner must do one of the following:

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a. File a motion for a stay under Kelly;

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b. File a motion to amend the petition to add in the unexhausted claims with a

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copy of the proposed amended petition attached and file a motion for a stay under Rhines;

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or

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c. File a notice stating that she wants to proceed on the current petition without a

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stay.

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4. If petitioner does not take any action, the case will proceed on the original petition

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without a stay.

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DATED: August 8, 2017

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