Sunkett v. Montgomery

Filing 8

ORDER STAYING PETITION. Signed by Judge Richard Seeborg on 10/6/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 10/6/2014)

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E-Filed 10/6/14*

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN FRANCISCO DIVISION

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GLENN SUNKETT,
Petitioner,

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No. C 14-0069 RS (PR)
ORDER STAYING PETITION

v.

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WARREN MONTGOMERY, Warden,

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Respondent.
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INTRODUCTION

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Petitioner seeks federal habeas relief from his state convictions. Respondent correctly

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contends in his motion to dismiss that the petition contains unexhausted claims.

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Consequently, and in response to petitioner’s motion to stay, the petition is STAYED to

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allow for exhaustion.

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DISCUSSION
Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are first required to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and

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No. C 14-0069 RS (PR)
ORDER STAYING PETITION

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every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy,

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455 U.S. 509, 515–16 (1982). In fact, a federal district court may not grant the writ unless

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state court remedies are exhausted or there is either “an absence of available state corrective

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process” or such process has been “rendered ineffective.” See 28 U.S.C. § 2254(b)(1)(A)–

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(B). If available state remedies have not been exhausted as to all claims, the district court

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must dismiss the petition. See Lundy, 455 U.S. at 510.

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Respondent is correct that the petition is mixed. A review of the record shows that

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Claims 1 (the prosecution evidence supported the defense’s alibi defense and the jury erred

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in finding petitioner guilty beyond a reasonable doubt), 2 (identification process was flawed),

United States District Court
For the Northern District of California

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8 (counsel’s failure to make a pretrial motion and a motion at the close of the prosecution’s

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case), 9 (counsel failed to prepare or present an alibi defense), 10 (additional ineffective

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assistance contentions), 11 (the trial court made an error in determining the sentence), and

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12 (there was cumulative error) were not presented to the California Supreme Court.

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The usual practice at this point would be to ask the petitioner whether he wants to

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dismiss the petition and return to state court to exhaust the unexhausted claim, proceed with

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the exhausted claims only, or move to stay the petition, exhaust the unexhausted claims and

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then move to reopen the action. See Ford v. Hubbard, 305 F.3d 875, 882–86 (9th Cir. 2002).

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Petitioner, however, has indicated already that he prefers the final option. (Pet.’s Mot. to

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Stay, Docket No. 6.)

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A district court may stay a mixed habeas petition, i.e., a petition containing both

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exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as

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

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Webber, 544 U.S. 269, 277–78 (2005). In Rhines, the Supreme Court discussed the

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stay-and-abeyance procedure, explaining that a stay and abeyance “is only appropriate when

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the district court determines there was good cause for the petitioner’s failure to exhaust his

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claims first in state court,” the claims are not meritless, and there are no intentionally dilatory

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litigation tactics by the petitioner. Id. If the stay is granted, the petitioner does not have to

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No. C 14-0069 RS (PR)
ORDER STAYING PETITION

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worry that his newly-exhausted claims will be barred by the statute of limitations because

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those claims remain pending in federal court. King v. Ryan, 564 F.3d 1133, 1139, 1140. (9th

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Cir. 2009).
Petitioner’s motion for a Rhines stay is GRANTED, good causing appearing therefor.

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The action is STAYED. Nothing further will take place in this action until the Court decides

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further action is appropriate, or until petitioner exhausts the unexhausted claims and, within

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thirty days of doing so, moves both to reopen this action and to lift the stay. Because this

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order addresses petitioner’s and respondent’s concerns, respondent’s motion to dismiss

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(Docket No. 5) and petitioner’s motion to show a rebuttable presumption (Docket No. 6) are

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United States District Court
For the Northern District of California

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DENIED. The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay of this

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action, and terminate Docket Nos. 5 and 6.

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IT IS SO ORDERED.
DATED: October 6, 2014
RICHARD SEEBORG
United States District Judge

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No. C 14-0069 RS (PR)
ORDER STAYING PETITION