McAlpin v. McDonald

Filing 7

ORDER by Judge William Alsup denying 6 Motion to Stay; granting 1 Motion for Leave to Proceed in forma pauperis (Attachments: # 1 Certificate of Service) (dt, COURT STAFF) (Filed on 10/7/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SCOTT MCALPIN,

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For the Northern District of California

United States District Court

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Petitioner,

ORDER DENYING MOTION TO
STAY; DIRECTING PETITIONER
TO FILE NOTICE; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

v.
MCDONALD, Warden,
Respondent.
/

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No. C 11-2939 WHA (PR)

(Docket Nos. 1, 6)

Petitioner, a prisoner of the State of California, filed a habeas corpus petition pursuant to

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28 U.S.C. 2254. The petition sets forth one claim, and it challenges the constitutionality of

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Petitioner’s conviction in state court. Along with his petition he filed a motion for a stay of this

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case while he exhausts additional claims in the state courts. The motion was denied because

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petitioner neither identified the claims he wishes to exhaust, shown that they are potentially

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meritorious, nor shown good cause for his failure to exhaust them prior to arriving in federal

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court, see Rhines v. Webber 544 U.S. 269, 278-79 (2005). Petitioner was given the opportunity

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to file a renewed motion for a stay that makes the proper showing under Rhines. Petitioner has

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filed a renewed motion for a stay.

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In his renewed motion, petitioner identifies two unexhausted claims he wishes to

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exhaust in the state courts while the instant matter is stayed: (1) that the prosecutor knowing

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presented perjured testimony; and (2) that the trial court lacked jurisdiction over his criminal

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proceedings. When liberally construed, these claims are cognizable bases for federal habeas

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relief, and thus are “potentially meritorious” within the meaning of Rhines. See id.

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Petitioner has not, however, shown “good cause” for his failure to exhaust the claims

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prior to filing his federal petition. He states that he filed the instant petition approximately one

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year before he had, and that this demonstrates “his confusion and inability to understand the

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procedures.” A prisoner’s pro se status or ignorance of what procedures to follow does not in

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and of itself constitute good cause. Cf. See Hughes v. Idaho State Bd. of Corrections, 800 F.2d

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905, 909 (9th Cir. 1986) (illiteracy of pro se petitioner not sufficient to meet cause standard of

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procedural bar); Tacho v. Martinez, 862 F.2d 1376, 1381 (9th Cir. 1988) (mental condition of

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pro se petitioner and reliance upon allegedly incompetent jailhouse lawyers did not constitute

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cause); cf. also Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (upholding denial of
stay because petitioner’s incorrect “impression” that counsel had raised claims to the California

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For the Northern District of California

United States District Court

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Supreme Court on direct appeal did not establish good cause under Rhines for failure to exhaust

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claims earlier). Indeed petitioner indicates that he had, and still has, ample time to exhaust his

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state claims in the state courts before filing his federal petition. Consequently, the renewed

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motion for a stay (docket number 6) is DENIED.

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Within 30 days of the date this order is filed, petitioner must notify the Court whether he

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wishes to (1) proceed with this matter based solely on the claim in the petition, or (2) to

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voluntarily dismiss this case without prejudice with an eye to exhausting and then filing another

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federal petition at a later date after he has exhausted all of the claims he wishes to raise in

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federal court. If petitioner fails to file a timely notice, this matter will proceed based solely

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upon the claim in the petition.

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Petitioner’s application to proceed in forma pauperis (docket number 1) is GRANTED.

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IT IS SO ORDERED.

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Dated: October

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, 2011.

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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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G:\PRO-SE\WHA\HC.11\MCALPIN2939.STY2.wpd

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