Gonzalez v. Knipp

Filing 9

ORDER to Stay Proceedings and Administratively Close the Case. Signed by Judge Edward M. Chen on 1/3/2013. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 1/3/2013)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 DIEGO GONZALEZ, 9 Petitioner, v. 11 For the Northern District of California United States District Court 10 No. C-12-4557 EMC (pr) WILLIAM KNIPP, Warden, 12 ORDER TO STAY PROCEEDINGS AND ADMINISTRATIVELY CLOSE THE CASE Respondent. ___________________________________/ 13 14 15 16 Petitioner has filed a motion to hold his federal habeas petition in abeyance so that he can return to the California state courts to present one or more unexhausted claims. There are two kinds of stay and abeyance proceedings available in a habeas action: the 17 Rhines stay and the King/Kelly stay. A stay under Rhines v. Weber, 544 U.S. 269 (2005), “is only 18 appropriate when the district court determines there was good cause for the petitioner’s failure to 19 exhaust his claims first in state court,” the claims are not meritless, and there are no intentionally 20 dilatory litigation tactics by the petitioner. Id. at 277-78. Petitioner has not satisfied the criteria for 21 a Rhines stay because he has not explained why he did not exhaust the claims before filing his 22 federal petition and he has not shown that the unidentified claims he wants to present to the state 23 courts are not meritless. 24 The King/Kelly stay provides an alternative method to deal with a petitioner who has some 25 unexhausted claims he wants to present in his federal habeas action. Under the procedure outlined 26 in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 27 481 F.3d 1143 (9th Cir. 2007), “(1) a petitioner amends his petition to delete any unexhausted 28 claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original 3 petition.” King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). A 4 petitioner seeking to avail himself of the King/Kelly three-step procedure is not required to show 5 good cause as under Rhines. See id. at 1141. Here, Petitioner satisfies the only currently applicable 6 requirement for a King/Kelly stay, i.e., that his petition has no unexhausted claims. The claims in 7 the petition appear to have been exhausted, as both were discussed in the California Court of 8 Appeal’s opinion affirming Petitioner’s conviction. The King/Kelly stay does not appear to require 9 this Court to decide whether the claims relate back at the time it considers whether to grant a stay. 10 Whether the claims relate back to the petition can be decided when he returns after exhausting state 11 For the Northern District of California petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the 2 United States District Court 1 court remedies and moves to amend his petition to add those newly-exhausted claims. The Court 12 will grant a King/Kelly stay so that Petitioner may exhaust state court remedies for all the claims he 13 wishes to present to this Court. 14 For the foregoing reasons, Petitioner’s motion to hold his petition in abeyance is 15 GRANTED. (Docket # 7.) This action is now STAYED and the Clerk shall 16 ADMINISTRATIVELY CLOSE the action. Nothing further will take place in this action until 17 Petitioner exhausts state court remedies for any unexhausted claims and then moves to reopen this 18 action, lift the stay and amend his petition to add any new claims. Petitioner must act diligently to 19 get his state court petition filed and promptly return to this Court – i.e., within thirty days after his 20 state court proceedings have concluded. See Kelly, 315 F.3d at 1070. 21 In light of the stay, the briefing schedule set in the Order To Show Cause is vacated and 22 Respondent’s motion for an extension of the deadline to respond to the petition is dismissed as moot. 23 (Docket # 8.) 24 25 IT IS SO ORDERED. Dated: January 3, 2013 26 _________________________ EDWARD M. CHEN United States District Judge 27 28 2

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