King v. Adams et al

Filing 2

ORDER ON INITIAL REVIEW (SI, COURT STAFF) (Filed on 7/5/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ALTON A. KING,

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United States District Court
For the Northern District of California

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No. C 11-2792 SI

Petitioner,

ORDER ON INITIAL REVIEW

v.
DERRAL G. ADAMS, Warden, et al.,

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Respondents.

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Alton A. King, an inmate at the California State Prison at Corcoran, filed this action for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. King’s petition is a “mixed” petition; it contains six

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claims that King exhausted on direct appeal and three claims that King has yet to exhaust through

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collateral review. This Court may not adjudicate a mixed petition, and ordinarily would be required to

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dismiss the petition until all of its claims have been exhausted. See Rose v. Lundy, 455 U.S. 509

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(1982). In his petition, however, King requests that the Court allow him to utilize the stay-and-abeyance

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procedure of Rhines v. Webber, 544 U.S. 269 (2005), to finish exhausting his claims.

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A district court may stay a mixed habeas petition to allow the petitioner to exhaust state court

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remedies as to those claims that have not yet been presented to the state’s highest court. See Rhines,

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544 U.S. at 277-78. This stay-and-abeyance procedure “is only appropriate when the district court

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determines there was good cause for the petitioner’s failure to exhaust his claims first in state court,”

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the claims are not meritless, and there are no intentionally dilatory litigation tactics by the petitioner.

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Id.

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King filed his federal habeas petition on June 7, 2011, just one day before the one-year AEDPA

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statute-of limitations on his claims expired. See 28 U.S.C. § 2244(d). His petition indicates that he has

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yet to begin the state court collateral review process. It only briefly describes the “good cause” for his

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failure to do so, stating only that “his ability to fully develop the facts on this issue has been severely

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hampered by apparent prosecutorial overreaching.” Petition at 13.

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Without more, the Court cannot find good cause for King’s failure to exhaust all of his claims.

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Accordingly, IT IS HEREBY ORDERED THAT King shall file a formal motion to stay this action by

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July 29, 2011. In his motion, King must fully explain the circumstances that constitute “good cause”

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for his failure to fully exhaust his habeas petition.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: July 5, 2011
SUSAN ILLSTON
United States District Judge

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