McCarty v. Kernan

Filing 13

ORDER signed by Magistrate Judge Kendall J. Newman on 4/11/2018 DENYING without prejudice 12 Motion to Stay. Petitioner granted 30 days to file a motion for stay as stated in this order. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH G. MCCARTY,

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Petitioner,

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v.

No. 2:18-cv-0037 KJN P

ORDER

SCOTT KERNAN,
Respondent.

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

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2018, petitioner filed a request

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to stay this action pending exhaustion of state court remedies. Petitioner provided a copy of the

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cover sheet from his February 26, 2018 filing in the California Supreme Court.

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Petitioner was convicted in the Butte County Superior Court in 2014. On October 24,

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2017, petitioner filed the instant claims in a petition for writ of habeas corpus in the Butte County

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Superior Court on October 24, 2017, which was denied on or about October 25, 2017. Petitioner

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filed such claims in a petition for writ of habeas corpus filed in the California Court of Appeal for

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the Third Appellate District on November 13, 2017, which was denied as successive on

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December 7, 2017. His petition was filed in the California Supreme Court on February 26, 2018,

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in Case No. S247273, but the court is unable to determine whether an earlier filed date governs

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under the mailbox rule.
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The instant petition is presently unexhausted. In the instant motion for stay, petitioner

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requests a stay until the writ is adjudicated by the California Supreme Court. As explained

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below, petitioner’s filing is insufficient to demonstrate that he is entitled to a stay.

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As petitioner was previously informed, the exhaustion of state court remedies is a

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prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A

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petitioner satisfies the exhaustion requirement by providing the highest state court with a full and

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fair opportunity to consider all claims before presenting them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert.

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denied, 478 U.S. 1021 (1986).

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In order to obtain a stay in this action, petitioner must file a motion for stay that

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demonstrates he is entitled to stay and abey this action. Federal law recognizes two different

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procedures that a prisoner may use to stay a federal habeas action. See Rhines v. Weber, 544

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U.S. 269 (2005) (staying timely mixed petition); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)

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(allowing prisoner to dismiss unexhausted claims and stay action as to exhausted claims subject

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to potential later amendment of petition).1

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Under Rhines, a district court may stay a mixed petition if the following conditions are

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met: (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims

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are potentially meritorious,” and (3) “there is no indication that the petitioner engaged in

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intentionally dilatory litigation tactics.” Id., 544 U.S. at 278; Mena v. Long, 813 F.3d 907, 911

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(9th Cir. 2016) (“a district court has the discretion to stay and hold in abeyance fully unexhausted

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petitions under the circumstances set forth in Rhines.”). The Supreme Court has made clear that

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this option “should be available only in limited circumstances.” Id. at 277. Moreover, a stay that

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is granted pursuant to Rhines may not be indefinite; reasonable time limits must be imposed on a

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petitioner’s return to state court. Id. at 277-78.

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“Good cause” under Rhines is not clearly defined. The Supreme Court has explained that

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in order to promote the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) twin goals

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Because the instant petition is wholly unexhausted, petitioner may not avail himself of the
Kelly procedure.
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of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay

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and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The

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Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an

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“extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

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Several district courts have concluded that the standard is more generous than the showing

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needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F. Supp. 2d

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844, 849 (D. S.D. 2005) (applying the Supreme Court’s mandate on remand). This view finds

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support in Pace, where the Supreme Court acknowledged that a petitioner’s “reasonable

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confusion” about the timeliness of his federal petition would generally constitute good cause for

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his failure to exhaust state remedies before filing his federal petition. Pace v. DiGuglielmo, 544

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U.S. 408, 416-17 (2005). However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the

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Ninth Circuit ruled that petitioner did not show good cause by arguing that he was “under the

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impression” that his counsel had raised all claims before the state court of appeal. Wooten, 540

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F.3d at 1024. The Ninth Circuit explained that finding good cause in that argument “would

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render stay-and-abey orders routine” and “would run afoul of Rhines and its instruction that

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district courts should only stay mixed petitions in ‘limited circumstances.’” Wooten, 540 F.3d at

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1024. In 2014, the Ninth Circuit clarified that “[t]he good cause element is the equitable

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component of the Rhines test,” and that although “a bald assertion cannot amount to a showing of

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good cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust,

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will.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).

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Here, petitioner fails to demonstrate good cause or otherwise explain the delay in

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exhausting his state court remedies. If petitioner seeks relief under Rhines, he must file a motion

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for stay and address each of the three Rhines elements set forth above.
Thus, petitioner’s motion for stay is denied without prejudice to renewal. Petitioner is

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granted thirty days in which to file a motion for stay under Rhines. By this order, the undersigned

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makes no ruling as to whether or not a motion for stay would be granted.2 Petitioner is cautioned

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A one year statute of limitations is applicable to all claims presented in a federal habeas corpus
petition. See 28 U.S.C. § 2244(d)(1); see also Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012)
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that failure to comply with this order will result in a recommendation that this action be dismissed

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without prejudice for failure to exhaust state court remedies.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for stay (ECF No. 12) is denied without prejudice; and

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2. Petitioner is granted thirty days in which to file a motion for stay under Rhines;

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petitioner must address each of the required elements: (1) “the petitioner had good

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cause for his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3)

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“there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.”

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Dated: April 11, 2018

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/mcca0037.stay.opt

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(holding that the one year statute of limitations applied to each claim in a habeas petition on an
individual basis). Moreover, if petitioner exhausts any claim during the pendency of this action,
he should inform the court as soon as possible.
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