Taylor v. Lizzaraga

Filing 9

ORDER TO STAY PROCEEDINGS AND ADMINISTRATIVELY CLOSE CASE [Re: ECF Nos. 1, 4, 8 ]. Signed by Magistrate Judge Laurel Beeler on 8/16/2016. (lsS, COURT STAFF) (Filed on 8/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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JAMES EDWARD TAYLOR,

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Case No. 16-cv-03170-LB

Petitioner,
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v.

ORDER TO STAY PROCEEDINGS AND
ADMINISTRATIVELY CLOSE CASE

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JOE LIZZARAGA,

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[Re: ECF Nos. 1, 4, 8 ]

Respondent.
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James Edward Taylor filed this pro se action for a writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254 and applied to proceed in forma pauperis. He consented to proceed before a magistrate

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judge. (ECF No. 7.1)
Mr. Taylor now moves for a stay and abeyance so that he may exhaust state court remedies for

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several unidentified claims. (ECF No. 8.) Mr. Taylor requests a stay under Kelly v. Small, 315

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F.3d 1063 (9th Cir. 2003), correctly noting that a petitioner does not need to show good cause to

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obtain such a stay.
There are two kinds of stays available in a habeas action: the Rhines stay and the King/Kelly

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stay. A stay under Rhines v. Weber, 544 U.S. 269 (2005), “is only appropriate when the district

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Record citations refer to materials in the Electronic Case File (“ECF”); pinpoint citations are to
the ECF-generated page numbers at the top of documents.

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court determines there was good cause for the petitioner's failure to exhaust his claims first in state

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court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by the

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petitioner. Id. at 277-78. The King/Kelly stay is the second kind of stay and is an alternative

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method to deal with a petitioner who has some unexhausted claims he wants to present in his

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

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

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

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United States District Court
Northern District of California

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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

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“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.

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Here, Mr. Taylor does not satisfy the requirements for a Rhines stay because he does not

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attempt to show good cause for failing to exhaust all the claims before filing the federal petition,

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that the unexhausted claims are not meritless, or that he was not engaged in intentionally dilatory

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

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Mr. Taylor satisfies the only currently applicable requirement for a King/Kelly stay, i.e., the

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petition has no unexhausted claims. Mr. Taylor’s motion for a stay and abeyance therefore is

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GRANTED. (ECF No. 8.) Whether Mr. Taylor’s new claims will relate back to the petition will be

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decided when he returns after exhausting state court remedies and moves to amend his petition to

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add those newly-exhausted claims. Mr. Taylor must be diligent in his efforts to exhaust his state

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court remedies for any unexhausted claims and must return to federal court within thirty days of a

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final decision by the state courts on those claims. See Kelly, 315 F.3d at 1070.

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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 Mr.

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

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

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Mr. Taylor’s in forma pauperis application is GRANTED. (ECF No. 4.)

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IT IS SO ORDERED.

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Dated: August 16, 2016

____________________________
LAUREL BEELER
United States Magistrate Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES EDWARD TAYLOR,

Case No. 3:16-cv-03170-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOE LIZZARAGA,
Defendant.

United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on August 16, 2016, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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James Edward Taylor ID: AM-0437
Mule Creek State Prison B9-128-UP
PO Box 409040
Ione, CA 95640

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Dated: August 16, 2016

Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER
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