Duran v. Frauenheim

Filing 7

ORDER signed by Magistrate Judge Allison Claire on 10/30/2017 ORDERING Petitioner to submit, within 30 days from the date of this order, an application to proceed IFP or the appropriate filing fee; DENYING without prejudice 2 Motion to Stay; and ORDERING within 30 days of service of this order, Petitioner to: file a motion for stay under Kelly, file a motion to amend the petition per this Order, or file a notice to proceed on current petition without a stay. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSE ANTONIO DURAN,

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No. 2:17-cv-2122 GEB AC P

Petitioner,
v.

ORDER

SCOTT FRAUENHEIM,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition 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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application or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a). He will be

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provided the opportunity to either submit the appropriate application in support of a request to

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proceed in forma pauperis or submit the appropriate filing fee.

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Petitioner has also moved for a stay and abeyance under Rhines v. Weber, 544 U.S. 269

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(2005). ECF No. 2. A Rhines stay is available for (1) a petition containing only unexhausted

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claims, or (2) a petition that is “mixed” (contains both exhausted and unexhausted claims). See

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Rhines, supra; see also Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016). A Rhines stay

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preserves the federal filing date for unexhausted claims contained in the federal petition. In order

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

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have first exhausted the claims in state court, (2) the claim or claims at issue potentially have
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merit, and (3) petitioner has not intentionally delayed pursuing the litigation. Rhines, at 544 U.S.

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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 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 Kelly

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is as follows: “(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court

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stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the

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

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amends his [federal] petition” to reincorporate the newly exhausted claims. Id. The Kelly stay-

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and-abeyance procedure does not require petitioner to demonstrate good cause or that the claims

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have 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 timeliness requirements. In other words, “the Kelly procedure,

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

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untimeliness in the interim.” Id. at 1141.

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In both the motion for stay and petition, petitioner states that all of the claims in the

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petition currently before the court have been presented to the California Supreme Court.1 ECF

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No. 1 at 14; ECF No. 2 at 2. Because it appears that the current petition is fully exhausted,

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petitioner cannot obtain a stay under Rhines and the motion will be denied. However, the denial

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will be without prejudice and petitioner must decide how he would like to proceed.

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Petitioner’s first option is to file a motion for a stay under Kelly. Because the petition is

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already fully exhausted, petitioner need only request a stay to allow him to return to state court to

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exhaust his new claims. Once those claims have been exhausted, he 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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Petitioner also indicates that he has already begun pursuing his unexhausted claims in state
court. ECF No. 1 at 14; ECF No. 2 at 2-3.
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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. The timeliness of newly-exhausted claims may be considered by the court in

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deciding whether to permit amendment.

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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 which contains all of the claims, both exhausted and unexhausted,

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that petitioner intends to bring before this court. At the same time, he must file a motion for a

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stay under Rhines. The motion for stay must (1) provide a good reason why petitioner did not

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

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claim or claims potentially have merit, and (3) show that he has not intentionally delayed in

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

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stay are granted, then the entire petition will be stayed while petitioner returns to state court to

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exhaust his unexhausted claims. Once the claims have been exhausted, petitioner will notify this

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court and the case will proceed on the amended petition and the originally unexhausted claims

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will have their initial filing date preserved. The court does not guarantee that petitioner’s claims

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will be timely even if he 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, he 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. Petitioner shall submit, within thirty days from the date of this order, an application in

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support of his request to proceed in forma pauperis or the appropriate filing fee; petitioner’s

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failure to comply with this order will result in a 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. Petitioner’s motion for stay (ECF No. 2) is denied without prejudice.

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4. 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 he wants to proceed on the current petition without a

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stay.

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

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without a stay.
IT IS SO ORDERED.
DATED: October 30, 2017

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