(HC) Thompson v. Spearman
Filing
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ORDER signed by Magistrate Judge Deborah Barnes on 09/03/21 GRANTING 38 Motion for Extension of Time. Petitioner is granted 60 days from the date of this order file a motion for stay and abeyance of the present action.(Plummer, M)
Case 2:19-cv-02328-KJM-DB Document 39 Filed 09/07/21 Page 1 of 3
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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KANE MICHAEL THOMPSON,
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No. 2:19-cv-2328 KJM DB P
Petitioner,
v.
ORDER
M.E. SPEARMAN,
Respondent.
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On August 30, 2021, petitioner filed objections to the findings and recommendations
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issued August 12, 2021. (ECF No. 38.) In his objections, petitioner asks for “time to get the help
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needed to ask for the right stay.” (Id. at 1.) Petitioner also states that his access to the law library
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is currently limited. (Id.) Petitioner will be granted a sixty-day extension of time to file a motion
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for stay and abeyance of the current proceedings.
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Petitioner states in his objections that he is “requesting a stay and abeyance of proceedings
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for the purpose of exhaustion.” (Id. at 2.) Given that petitioner is also requesting an extension of
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time to file a request for stay, this does not appear to be a request for stay by the petitioner.
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However, the extent that petitioner did intend to request for stay in his objections, petitioner has
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not met the requirements for a stay in his objections. Below is a description of the two types of
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Case 2:19-cv-02328-KJM-DB Document 39 Filed 09/07/21 Page 2 of 3
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stay as well as what petitioner must show for the court to grant a motion for stay and abeyance.
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Should petitioner seek a stay he should ensure that he meets all of the requirements for the court
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to grant the type of stay requested.
TYPES OF STAY
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Federal law recognizes two different procedures that a prisoner may use to stay a federal
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habeas action to exhaust unexhausted claims. See Rhines, 544 U.S. 269 (2005) (staying timely
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mixed petition); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (allowing prisoner to dismiss
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unexhausted claims and stay the action as to exhausted claims subject to potential later
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amendment of petition), overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir.
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2007).
The first stay procedure is referred to as a “Rhines stay.” Under Rhines, a district court
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may stay a mixed petition if the following conditions are met: (1) “the petitioner had good cause
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for his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there
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is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at
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278. The Supreme Court has made clear that this option “should be available only in limited
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circumstances.” Id. at 277. Moreover, a stay granted pursuant to Rhines may not be indefinite;
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reasonable time limits must be imposed on a petitioner's return to state court. Id. at 277-78.
The second stay procedure is referred to as a “Kelly stay.” Under Kelly, the court may
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also stay a petition setting forth only exhausted claims, to permit exhaustion of additional claims
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with the intention that they will be added by amendment following exhaustion. King v. Ryan,
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564 F.3d 1133 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1063). However, the Ninth Circuit has
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warned that “[a] petitioner seeking to use the Kelly procedure will be able to amend his
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unexhausted claims back into his federal petition once he has exhausted them only if those claims
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are determined to be timely...[a]nd demonstrating timeliness will often be problematic under the
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now-applicable legal principles.” King, 564 F.3d at 1140-41. If a petitioner's newly exhausted
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claims are untimely, he will be able to amend his petition to include them only if they share a
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“common core of operative facts” with the claims in the original federal petition. Id. at 1141.
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Case 2:19-cv-02328-KJM-DB Document 39 Filed 09/07/21 Page 3 of 3
CONCLUSION
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Good cause appearing, IT IS HEREBY ORDERED that:
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1. Petitioner’s motion for an extension of time (ECF No. 38) is granted; and
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2. Petitioner is granted sixty days from the date of this order file a motion for stay and
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abeyance of the present action.
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DATED: September 3, 2021
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DB:14
DB/DB Prisoner Inbox/Habeas/R/thom2328.111
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