Williams v. Curry

Filing 12

ORDER FOR FILING FEE, TO STAY PROCEEDINGS, AND TO ADMINISTRATIVELY CLOSE CASE 10 1 (Illston, Susan) (Filed on 11/10/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL A. WILLIAMS
(CDCR # AF4060),

United States District Court
For the Northern District of California

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ORDER FOR FILING FEE, TO STAY
PROCEEDINGS, AND TO
ADMINISTRATIVELY CLOSE CASE

Petitioner,

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No. C 14-1795 SI (pr)

v.
BEN CURRY, Warden,
Respondent.

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/

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Paul A. Williams filed this pro se action for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. Williams now moves for a stay and abeyance so that he may exhaust state court

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remedies for several claims. He states that state court remedies have not been exhausted for

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Claims 2 through 5 of his federal petition. Docket # 10 at 3. Williams requests a stay under

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), noting that it "does not require a petitioner to

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show good cause for his delay." Docket # 10 at 3. Williams had moved for a stay under a

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different rationale than in his current motion, so the court will treat the current motion as

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superseding the earlier one. Williams also has not yet paid the filing fee, which he must do

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promptly to avoid dismissal of this action.

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There are two kinds of stays available in a habeas action: the Rhines stay and the

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King/Kelly stay.1 A stay under Rhines v. Weber, 544 U.S. 269 (2005), "is only appropriate when

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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
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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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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. at 277-78. The King/Kelly stay is the second kind of stay

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and is an alternative method to deal with a petitioner who has some unexhausted claims he wants

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to present in his federal habeas action. Under the procedure outlined in Kelly v. Small, 315 F.3d

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1063 (9th Cir. 2003), "(1) a petitioner amends his petition to delete any unexhausted claims; (2)

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the court stays and holds in abeyance the amended, fully exhausted petition, allowing the

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petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the

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petitioner later amends his petition and re-attaches the newly-exhausted claims to the original

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petition.” King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71).

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A petitioner seeking to avail himself of the Kelly three-step procedure is not required to show

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good cause as under Rhines, but rather must eventually show that the amendment of any newly

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exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005),

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by sharing a “common core of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001), by

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complying with the statute of limitations. Id. at 1141-43.

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Here, Williams does not satisfy the requirements for a Rhines stay because does not show

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good cause for failing to exhaust the claims before filing the federal petition, and does not

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attempt to show that he was not engaged in intentionally dilatory litigation tactics. See Rhines,

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544 U.S. at 277-78. The court therefore will not grant a Rhines stay.

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It is easier for a petitioner to obtain a King/Kelly stay. The only currently applicable

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requirement for a King/Kelly stay is that the petition sought to be stayed has no unexhausted

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claims. Here, the petition contains both exhausted and unexhausted claims. Rather than deny

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the motion due to this easily curable procedural problem, the court opts to dismiss the

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unexhausted claims (i.e., Claims 2 through 5), so that the petition will have no unexhausted

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claims. Whether these claims (i.e., Claims 2 through 5) that Williams intends to exhaust will

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relate back to the petition can be decided when he returns after exhausting state court remedies

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and moves to amend his petition to add those newly-exhausted claims. The court will grant a

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King/Kelly stay so that Williams may exhaust state court remedies for claims he wishes to

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present to this court. Williams must file his unexhausted claims in state court within thirty days,

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and must return to federal court within thirty days of a final decision by the state courts on those

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claims. See Kelly, 315 F.3d at 1070.

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Williams' motion for a stay and abeyance is GRANTED. (Docket # 10.) Williams'

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earlier motion for a stay and abeyance is DISMISSED as moot. (Docket # 1.) After Williams

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concludes his state court efforts to exhaust his new claim, he may move to file an amended

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petition in which he presents all his claims, including the now dismissed Claims 2 through 5.

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For the foregoing reasons, this action is now STAYED and the clerk shall

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ADMINISTRATIVELY CLOSE the action. Nothing further will take place in this action until

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Williams exhausts any unexhausted claims and, within thirty days of doing so, moves to reopen

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this action, lift the court’s stay and amend his petition to add the newly exhausted claims.

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Williams was ordered to pay the filing fee no later than October 31, 2014, but failed to

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do so. The court will give him one more chance: Williams must pay the $5.00 filing fee no later

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than December 12, 2014. If the court has not received the filing fee by that date, the action will

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be dismissed. The stay of this action does not relieve him of the obligation to pay that fee by

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that deadline.

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IT IS SO ORDERED.

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DATED: November 10, 2014
SUSAN ILLSTON
United States District Judge

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