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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH G. MCCARTY, 12 Petitioner, 13 14 15 v. No. 2:18-cv-0037 KJN P ORDER SCOTT KERNAN, Respondent. 16 17 Petitioner, a state prisoner proceeding pro se and in forma pauperis, filed a petition for a 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 2, 2018, petitioner filed a request 19 to stay this action pending exhaustion of state court remedies. Petitioner provided a copy of the 20 cover sheet from his February 26, 2018 filing in the California Supreme Court. 21 Petitioner was convicted in the Butte County Superior Court in 2014. On October 24, 22 2017, petitioner filed the instant claims in a petition for writ of habeas corpus in the Butte County 23 Superior Court on October 24, 2017, which was denied on or about October 25, 2017. Petitioner 24 filed such claims in a petition for writ of habeas corpus filed in the California Court of Appeal for 25 the Third Appellate District on November 13, 2017, which was denied as successive on 26 December 7, 2017. His petition was filed in the California Supreme Court on February 26, 2018, 27 in Case No. S247273, but the court is unable to determine whether an earlier filed date governs 28 under the mailbox rule. 1 1 The instant petition is presently unexhausted. In the instant motion for stay, petitioner 2 requests a stay until the writ is adjudicated by the California Supreme Court. As explained 3 below, petitioner’s filing is insufficient to demonstrate that he is entitled to a stay. 4 As petitioner was previously informed, the exhaustion of state court remedies is a 5 prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A 6 petitioner satisfies the exhaustion requirement by providing the highest state court with a full and 7 fair opportunity to consider all claims before presenting them to the federal court. Picard v. 8 Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. 9 denied, 478 U.S. 1021 (1986). 10 In order to obtain a stay in this action, petitioner must file a motion for stay that 11 demonstrates he is entitled to stay and abey this action. Federal law recognizes two different 12 procedures that a prisoner may use to stay a federal habeas action. See Rhines v. Weber, 544 13 U.S. 269 (2005) (staying timely mixed petition); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) 14 (allowing prisoner to dismiss unexhausted claims and stay action as to exhausted claims subject 15 to potential later amendment of petition).1 16 Under Rhines, a district court may stay a mixed petition if the following conditions are 17 met: (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims 18 are potentially meritorious,” and (3) “there is no indication that the petitioner engaged in 19 intentionally dilatory litigation tactics.” Id., 544 U.S. at 278; Mena v. Long, 813 F.3d 907, 911 20 (9th Cir. 2016) (“a district court has the discretion to stay and hold in abeyance fully unexhausted 21 petitions under the circumstances set forth in Rhines.”). The Supreme Court has made clear that 22 this option “should be available only in limited circumstances.” Id. at 277. Moreover, a stay that 23 is granted pursuant to Rhines may not be indefinite; reasonable time limits must be imposed on a 24 petitioner’s return to state court. Id. at 277-78. 25 “Good cause” under Rhines is not clearly defined. The Supreme Court has explained that 26 in order to promote the Anti-Terrorism and Effective Death Penalty Act’s (“AEDPA”) twin goals 27 28 1 Because the instant petition is wholly unexhausted, petitioner may not avail himself of the Kelly procedure. 2 1 of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay 2 and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The 3 Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an 4 “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 5 Several district courts have concluded that the standard is more generous than the showing 6 needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F. Supp. 2d 7 844, 849 (D. S.D. 2005) (applying the Supreme Court’s mandate on remand). This view finds 8 support in Pace, where the Supreme Court acknowledged that a petitioner’s “reasonable 9 confusion” about the timeliness of his federal petition would generally constitute good cause for 10 his failure to exhaust state remedies before filing his federal petition. Pace v. DiGuglielmo, 544 11 U.S. 408, 416-17 (2005). However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the 12 Ninth Circuit ruled that petitioner did not show good cause by arguing that he was “under the 13 impression” that his counsel had raised all claims before the state court of appeal. Wooten, 540 14 F.3d at 1024. The Ninth Circuit explained that finding good cause in that argument “would 15 render stay-and-abey orders routine” and “would run afoul of Rhines and its instruction that 16 district courts should only stay mixed petitions in ‘limited circumstances.’” Wooten, 540 F.3d at 17 1024. In 2014, the Ninth Circuit clarified that “[t]he good cause element is the equitable 18 component of the Rhines test,” and that although “a bald assertion cannot amount to a showing of 19 good cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, 20 will.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 21 Here, petitioner fails to demonstrate good cause or otherwise explain the delay in 22 exhausting his state court remedies. If petitioner seeks relief under Rhines, he must file a motion 23 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 24 25 granted thirty days in which to file a motion for stay under Rhines. By this order, the undersigned 26 makes no ruling as to whether or not a motion for stay would be granted.2 Petitioner is cautioned 27 28 2 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) 3 1 that failure to comply with this order will result in a recommendation that this action be dismissed 2 without prejudice for failure to exhaust state court remedies. 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. Petitioner’s motion for stay (ECF No. 12) is denied without prejudice; and 5 2. Petitioner is granted thirty days in which to file a motion for stay under Rhines; 6 petitioner must address each of the required elements: (1) “the petitioner had good 7 cause for his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) 8 “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” 9 Dated: April 11, 2018 10 11 12 13 /mcca0037.stay.opt 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (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. 4

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