Walker v. Beard

Filing 18

ORDER by Judge Edward M. Chen 17 to Stay Action and Administratively Close Case. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 2/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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THELMEAS WALKER,

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Petitioner,
ORDER TO STAY ACTION AND
ADMINISTRATIVELY CLOSE CASE

v.

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JEFFREY BEARD,

Docket No. 17

Respondent.

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For the Northern District of California

United States District Court

Case No. 16-cv-01280-EMC

Thelmeas Walker, Jr., filed this pro se action for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. The Court ordered Respondent to show cause why the petition should not be

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granted, and Respondent filed an answer to the petition. Mr. Walker then filed a traverse and a

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request for a stay and abeyance of these proceedings, so that he could exhaust state court remedies

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for one or more new claims he wishes to present based on the provisions regarding juvenile

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offenders in California’s recently-passed Proposition 57. Docket No. 17 at 1.

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

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

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tactics by the petitioner. Id. at 277-78. 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 unexhausted claims he wants to present

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

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Cir. 2003), “(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court

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

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

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amends his petition and re-attaches the newly-exhausted claims to the original petition.” King v.

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Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). A petitioner

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seeking to avail himself of the Kelly three-step procedure is not required to show good cause as

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under Rhines, but rather must eventually show that the amendment of any newly exhausted claims

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back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a
“common core of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001), by complying with

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the statute of limitations. Id. at 1141-43.
Here, petitioner specifically requested a King/Kelly stay. Docket No. 17 at 1. The only

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For the Northern District of California

United States District Court

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currently applicable requirement for a King/Kelly stay is that the petition sought to be stayed has

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no unexhausted claims. Mr. Walker’s petition satisfies that that requirement. Whether the new

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claim(s) that Mr. Walker intends to exhaust will relate back to the petition and/or comply with the

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statute of limitations can be decided when he returns after exhausting state court remedies and

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moves to amend his petition to add the newly-exhausted claim(s). The court will grant a

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

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present to this court. Mr. Walker must file his petition containing the claim(s) in state court within

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

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on the claim(s). See Kelly, 315 F.3d at 1070.
Mr. Walker’s motion for a stay and abeyance is GRANTED. (Docket No. 17.) After Mr.

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Walker 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 new claim.

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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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Mr. Walker exhausts any unexhausted claims and, within thirty days of doing so, moves to reopen

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this action, lift the stay and amend his petition to add the newly exhausted claim(s).

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IT IS SO ORDERED.

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Dated: February 22, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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For the Northern District of California

United States District Court

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