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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAYMOND E. LOPEZ,

No. C 13-0649 TEH (PR)

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ORDER GRANTING PETITIONER’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS; DENYING WITHOUT
PREJUDICE REQUEST TO STAY
FEDERAL PROCEEDINGS

Petitioner,
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v.
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GREG D. LEWIS, Warden,
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Respondent.
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Docket ## 2, 3
/

United States District Court
For the Northern District of California

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On February 13, 2013, Petitioner Raymond E. Lopez, an
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inmate at Pelican Bay State Prison, filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254.

On the same date,

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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.
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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

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finding of premeditation and deliberation was based on insufficient

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evidence; and (2) the trial court gave the jury inadequate answers

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to its questions.

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denied by the California Supreme Court.

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instant federal petition on February 13, 2013.

On December 14, 2011, his petition for review was

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Petitioner filed the

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This Court may entertain a petition for a writ of habeas

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corpus “in behalf of a person in custody pursuant to the judgment of

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a State court only on the ground that he is in custody in violation

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of the Constitution or laws or treaties of the United States.”

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U.S.C. § 2254(a).

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directing the respondent to show cause why the writ should not be

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granted, unless it appears from the application that the applicant

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or person detained is not entitled thereto.”

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dismissal is appropriate only where the allegations in the petition

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are vague or conclusory, palpably incredible, or patently frivolous

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or false.

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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

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appears to have been exhausted.

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Petitioner merely indicates, “I have other constitutional violations

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of structural dimensions, that my appellate attorney failed to

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present on my direct appeal, and I need to present these claims to

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the state courts in order to further present them before this

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court.”

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Petitioner wishes to exhaust, if the claims are close to being

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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

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There are two kinds of stays available in a habeas action:

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the Rhines stay and the King/Kelly stay.1

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Weber, 544 U.S. 269 (2005), "is only appropriate when the district

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court determines there was good cause for the petitioner's failure

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to exhaust his claims first in state court," the claims are not

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meritless, and there are no intentionally dilatory litigation

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tactics by the petitioner.

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limited in time to avoid indefinite delay.

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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

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alternative method to deal with a petitioner who has some

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unexhausted claims he wants to present in his federal habeas action.

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Under the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003), overruled on other grounds by Robbin v. Carey, 481 F.3d

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1143 (9th Cir. 2007), "(1) a petitioner amends his petition to

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delete any unexhausted claims; (2) the court stays and holds in

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abeyance the amended, fully exhausted petition, allowing the

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petitioner the opportunity to proceed to state court to exhaust the

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deleted claims; and (3) the petitioner later amends his petition and

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re-attaches the newly-exhausted claims to the original petition.”

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King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing Kelly, 315

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F.3d at 1070-71).

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Kelly three-step procedure is not required to show good cause as

A petitioner seeking to avail himself of the

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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.
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under Rhines, but rather must eventually show that the amendment of

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any newly exhausted claims back into the petition satisfies both

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Mayle v. Felix, 545 U.S. 644, 659 (2005), by sharing a “common core

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of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001), by

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complying with the statute of limitations.

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Id. at 1141-43.

Petitioner does not satisfy the requirements for a stay

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under Rhines because the failure of appellate counsel to present the

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claims to state court does not amount to good cause for Petitioner

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not to have exhausted them before filing his federal petition.

See

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Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (upholding

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denial of stay because petitioner’s incorrect impression that

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counsel had raised claims to the California Supreme Court on direct

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appeal did not establish good cause under Rhines for failure to

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exhaust claims earlier).

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claims fails to explain why Petitioner did not present the claims to

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state court in a habeas petition himself.

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does not indicate that the claims he wishes to exhaust are not

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meritless and that he has not engaged in intentional dilatory

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litigation tactics.

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Any failure of counsel to present the

Furthermore, Petitioner

Petitioner’s motion also does not suffice to obtain a

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King/Kelly stay because it appears that his petition contains

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exhausted and unexhausted claims; under King/Kelly, the petition

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must contain only unexhausted claims.

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Therefore, Petitioner’s request for a stay is DENIED

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WITHOUT PREJUDICE to refiling a new motion for a stay that complies

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with the requirements under Rhine or King/Kelly.

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A stay pursuant to

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King/Kelly does not toll the federal limitations period with respect

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to the unexhausted claims.

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that demonstrating timeliness when requesting amendment of newly

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exhausted claims back into federal petition often will be

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problematic given the AEDPA one-year statute of limitations).

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See King, 564 F.3d at 1141 (explaining

III

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For the foregoing reasons and for good cause shown,

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1.

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GRANTED.

(Docket #2).

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2.
PREJUDICE.

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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

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Order, Petitioner must either pursue one of the options described

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above or inform the Court that he only wishes to proceed on the

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exhausted claims that are presented in his petition.

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chooses this last option, he must indicate which of the claims in

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his petition are exhausted.

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4.

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If Petitioner

This Order terminates Docket ## 2 and 3.

IT IS SO ORDERED.

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DATED

3/18/2013
THELTON E. HENDERSON
United States District Judge

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