Lopez v. Lewis

Filing 4

ORDER Granting 2 Application for Leave to Proceed in forma pauperis; Denying without prejudice 3 MOTION to Stay. Motion due by 4/15/2013. Signed by Judge Thelton E. Henderson on 03/18/2013. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 3/19/2013)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 RAYMOND E. LOPEZ, No. C 13-0649 TEH (PR) 5 ORDER GRANTING PETITIONER’S APPLICATION TO PROCEED IN FORMA PAUPERIS; DENYING WITHOUT PREJUDICE REQUEST TO STAY FEDERAL PROCEEDINGS Petitioner, 6 v. 7 GREG D. LEWIS, Warden, 8 Respondent. 9 Docket ## 2, 3 / United States District Court For the Northern District of California 10 11 On February 13, 2013, Petitioner Raymond E. Lopez, an 12 inmate at Pelican Bay State Prison, filed a petition for a writ of 13 habeas corpus pursuant to 28 U.S.C. § 2254. On the same date, 14 15 16 17 18 19 Petitioner filed an application to proceed in forma pauperis (IFP) and a request to stay his petition in order to exhaust unexhausted claims. For the following reasons, the Court grants Petitioner’s application to proceed IFP and DENIES WITHOUT PREJUDICE his request to stay his petition. I 20 21 22 23 24 25 26 27 28 Petitioner’s federal petition provides the following information. On July 17, 2009, the Superior Court of Santa Clara County sentenced Petitioner to twenty-six years to life in prison pursuant to a conviction by a jury on one count of first degree murder with the personal use of a deadly weapon. of Appeal affirmed the judgment. In 2010, the California Court In his petition for review in the California Supreme Court, Petitioner presented two claims: (1) the 1 finding of premeditation and deliberation was based on insufficient 2 evidence; and (2) the trial court gave the jury inadequate answers 3 to its questions. 4 denied by the California Supreme Court. 5 instant federal petition on February 13, 2013. On December 14, 2011, his petition for review was 6 Petitioner filed the II 7 This Court may entertain a petition for a writ of habeas 8 corpus “in behalf of a person in custody pursuant to the judgment of 9 a State court only on the ground that he is in custody in violation 10 of the Constitution or laws or treaties of the United States.” 11 U.S.C. § 2254(a). 12 directing the respondent to show cause why the writ should not be 13 granted, unless it appears from the application that the applicant 14 or person detained is not entitled thereto.” 15 dismissal is appropriate only where the allegations in the petition 16 are vague or conclusory, palpably incredible, or patently frivolous 17 or false. 18 28 It shall “award the writ or issue an order Id. § 2243. Summary Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). The petition alleges seven claims, only one of which 19 appears to have been exhausted. 20 Petitioner merely indicates, “I have other constitutional violations 21 of structural dimensions, that my appellate attorney failed to 22 present on my direct appeal, and I need to present these claims to 23 the state courts in order to further present them before this 24 court.” 25 Petitioner wishes to exhaust, if the claims are close to being 26 exhausted or even if Petitioner has filed a petition in state court. In his brief request for a stay, The request for a stay does not indicate what claims 27 28 2 1 There are two kinds of stays available in a habeas action: 2 the Rhines stay and the King/Kelly stay.1 3 Weber, 544 U.S. 269 (2005), "is only appropriate when the district 4 court determines there was good cause for the petitioner's failure 5 to exhaust his claims first in state court," the claims are not 6 meritless, and there are no intentionally dilatory litigation 7 tactics by the petitioner. 8 limited in time to avoid indefinite delay. 9 Id. at 277-78. A stay under Rhines v. Any such stay must be Id. The King/Kelly stay is the second kind of stay and is an 10 alternative method to deal with a petitioner who has some 11 unexhausted claims he wants to present in his federal habeas action. 12 Under the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th 13 Cir. 2003), overruled on other grounds by Robbin v. Carey, 481 F.3d 14 1143 (9th Cir. 2007), "(1) a petitioner amends his petition to 15 delete any unexhausted claims; (2) the court stays and holds in 16 abeyance the amended, fully exhausted petition, allowing the 17 petitioner the opportunity to proceed to state court to exhaust the 18 deleted claims; and (3) the petitioner later amends his petition and 19 re-attaches the newly-exhausted claims to the original petition.” 20 King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing Kelly, 315 21 F.3d at 1070-71). 22 Kelly three-step procedure is not required to show good cause as A petitioner seeking to avail himself of the 23 24 1 25 26 27 28 Litigants and courts often refer to the procedure as a "stay and abeyance." The phrase refers to the district court "stay[ing] the petition and hold[ing] it in abeyance while the petitioner returns to state court to exhaust." Rhines v. Weber, 544 U.S. 269, 275 (2005). For convenience, the court refers to the combined procedure as a stay. 3 1 under Rhines, but rather must eventually show that the amendment of 2 any newly exhausted claims back into the petition satisfies both 3 Mayle v. Felix, 545 U.S. 644, 659 (2005), by sharing a “common core 4 of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001), by 5 complying with the statute of limitations. 6 Id. at 1141-43. Petitioner does not satisfy the requirements for a stay 7 under Rhines because the failure of appellate counsel to present the 8 claims to state court does not amount to good cause for Petitioner 9 not to have exhausted them before filing his federal petition. See 10 Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (upholding 11 denial of stay because petitioner’s incorrect impression that 12 counsel had raised claims to the California Supreme Court on direct 13 appeal did not establish good cause under Rhines for failure to 14 exhaust claims earlier). 15 claims fails to explain why Petitioner did not present the claims to 16 state court in a habeas petition himself. 17 does not indicate that the claims he wishes to exhaust are not 18 meritless and that he has not engaged in intentional dilatory 19 litigation tactics. 20 Any failure of counsel to present the Furthermore, Petitioner Petitioner’s motion also does not suffice to obtain a 21 King/Kelly stay because it appears that his petition contains 22 exhausted and unexhausted claims; under King/Kelly, the petition 23 must contain only unexhausted claims. 24 Therefore, Petitioner’s request for a stay is DENIED 25 WITHOUT PREJUDICE to refiling a new motion for a stay that complies 26 with the requirements under Rhine or King/Kelly. 27 28 4 A stay pursuant to 1 King/Kelly does not toll the federal limitations period with respect 2 to the unexhausted claims. 3 that demonstrating timeliness when requesting amendment of newly 4 exhausted claims back into federal petition often will be 5 problematic given the AEDPA one-year statute of limitations). 6 See King, 564 F.3d at 1141 (explaining III 7 For the foregoing reasons and for good cause shown, 8 1. 9 GRANTED. (Docket #2). 10 11 2. PREJUDICE. 12 Petitioner’s motion for leave to proceed IFP is Petitioner’s request for a stay is DENIED WITHOUT (Docket #3). 3. Within twenty eight (28) days from the date of this 13 Order, Petitioner must either pursue one of the options described 14 above or inform the Court that he only wishes to proceed on the 15 exhausted claims that are presented in his petition. 16 chooses this last option, he must indicate which of the claims in 17 his petition are exhausted. 18 4. 19 If Petitioner This Order terminates Docket ## 2 and 3. IT IS SO ORDERED. 20 21 22 DATED 3/18/2013 THELTON E. HENDERSON United States District Judge 23 24 25 26 G:\PRO-SE\TEH\HC.13\Lopez 13-649-HC Deny woprej Stay&Abey.wpd 27 28 5

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