William H. Baymiller v. People of the State of California

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 2/7/2018 GRANTING 8 Motion to Proceed IFP. Petitioner shall inform the court whether he wishes to proceed with his exhausted claims, or whether he wishes to stay this action pending exhaustion of unexhausted claims within 30 days of the date of this order. (Fabillaran, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM HOLT BAYMILLER, 12 13 14 15 No. 2: 17-cv-2458 KJN P Petitioner, v. ORDER PEOPLE OF THE STATE OF CALIFORNIA, Respondent. 16 17 18 Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 20 pauperis. 21 Petitioner challenges a 2012 murder conviction from Tehama County. The petition raises 22 two claims which appear to have been presented to the California Supreme Court on direct 23 appeal. Thus, these two claims appear to be exhausted. 24 Petitioner also states that after the instant petition is filed, his jailhouse lawyer will raise a 25 new claim, i.e., that petitioner lacked the mental capacity to form intent to commit murder. It 26 does not appear that this claim has been presented to any court. If petitioner intends to exhaust 27 this new claim in state court, it is unclear whether he is seeking to stay the instant petition 28 pending exhaustion of this new claim. 1 1 Federal district courts should stay mixed petitions only in limited circumstances. Rhines 2 v. Kelly, 544 U.S. 269, 277 (2005). A district court may stay a mixed petition if: (1) the 3 petitioner demonstrates good cause for failing to have first exhausted all claims in state court; 4 (2) the claims potentially have merit; and (3) petitioner has not been dilatory in pursuing the 5 litigation. Id. at 277-78. 6 In the alternative, a court may stay a mixed petition if: (1) the petitioner amends his 7 petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, 8 fully exhausted petition, allowing the petitioner to proceed to exhaust the deleted claims in state 9 court; and (3) petitioner later amends his petition and reattaches the newly exhausted claims to the 10 original petition. Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003). The Kelly procedure is 11 riskier than the Rhines procedure since it does not protect the petitioner’s unexhausted claims 12 from expiring during the stay. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 13 Despite the risk of the unexhausted claims becoming time-barred in the course of the 14 Kelly procedure, a petitioner may elect to use that alternative since it does not require him to 15 demonstrate good cause as does the Rhines procedure. King, 564 F.3d at 1140. 16 Petitioner is ordered to inform the court within thirty days whether he wishes to proceed 17 with his exhausted claims at this time or, instead, whether he wishes to stay this action pending 18 exhaustion of an unexhausted claim. If petitioner seeks a stay, he shall file a motion addressing 19 whether the stay is sought pursuant to the procedures outlined in Rhines or Kelly. If petitioner 20 intends to proceed with his exhausted claims at this time, the undersigned will direct the Office of 21 the Attorney General to respond to his exhausted claims. 22 In accordance with the above, IT IS HEREBY ORDERED that: 23 1. Petitioner’s motion to proceed in forma pauperis is granted; 24 2. Within thirty days of the date of this order, petitioner shall inform the court whether he 25 wishes to proceed with his exhausted claims, or whether he wishes to stay this action pending 26 exhaustion of unexhausted claims. 27 Dated: February 7, 2018 28 Bay2458.ord 2

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