Ayala v. Lewis

Filing 7

ORDER by Judge Yvonne Gonzalez Rogers denying 5 Respondent's Motion to Dismiss Habeas Corpus Petition; Staying Habeas proceedings; Directing Petitioner to file quarterly status reports; and Directing clerk to administratively close this case until the Court issues order lifting stay. (fs, COURT STAFF) (Filed on 5/17/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JORGE AYALA,
Petitioner,

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United States District Court
United States District Court
For the Northern District of California California
For the Northern District of

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No. C 11-05708-YGR (PR)

v.
GREG LEWIS,
Respondent.
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ORDER DENYING MOTION TO
DISMISS; STAYING HABEAS
PROCEEDINGS; DIRECTING
PETITIONER TO FILE QUARTERLY
STATUS REPORTS; AND DIRECTING
CLERK TO CLOSE THIS CASE
ADMINISTRATIVELY UNTIL THE
COURT ISSUES ORDER LIFTING STAY

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Petitioner, a state prisoner, has filed this petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. In an Order dated July 16, 2012, the Court ordered Respondent to show cause why

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the petition should not be granted.

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Before the Court are (1) Respondent's Motion to Dismiss Habeas Corpus Petition for Failure

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to Exhaust All Claims (Dkt. No. 5) and (2) Petitioner's Opposition to Respondent’s Motion to

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Dismiss, in which he requests that the petition filed in the instant case be stayed to allow him to

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exhaust the unexhausted claims in his petition (Dkt. No. 6). No reply has been filed.

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DISCUSSION

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Respondent argues that the action must be dismissed as a mixed petition under Rose v.

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Lundy, 455 U.S. 509, 510 (1982). Petitioner does not dispute that he has filed a mixed petition

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containing exhausted and unexhausted claims, and requests a stay to allow him to exhaust the

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unexhausted claims.

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Prisoners in state custody who wish to challenge in federal habeas proceedings either the fact

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or length of their confinement are first required to exhaust state judicial remedies by presenting the

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

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they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c); Rose, 455 U.S. at 515-16. If

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available state remedies have not been exhausted as to all claims, the district court must dismiss the

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petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal solely for

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failure to exhaust is not a bar to returning to federal court after exhausting available state remedies.

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See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

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Petitioners may seek a stay of the petition pursuant to Pace v. DiGuglielmo, 125 S. Ct. 1807,
1813-14 (2005), under which a prisoner may file a protective petition in federal court and ask the

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court to stay federal habeas proceedings until all state remedies are exhausted. District courts have

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the authority to issue stays, and the habeas statute does not deprive them of that authority. Rhines v.

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United States District Court
For the Northern District of California

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Webber, 125 S. Ct. 1528, 1535 (2005). A stay is appropriate where the district court determines that

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good cause existed for the petitioner's failure to exhaust his claims in state court, and that such

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claims are potentially meritorious. Id.; see also Pace, 125 S. Ct. at 1813-14.

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Here, it appears that good cause exists for Petitioner's failure to exhaust his claims on direct

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appeal because his claims could be raised by way of state habeas corpus. Moreover, these claims

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state cognizable bases for federal habeas relief. There is no evidence that Petitioner seeks the stay

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for improper purposes. See Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) (holding that

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a stay for the purpose of permitting exhaustion of unexhausted claims should be granted only if the

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claims petitioner seeks to pursue are cognizable under § 2254; there is a likelihood of prejudice to

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petitioner if the stay is not granted; and there is no evidence that the motion for a stay is brought to

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delay, vex, or harass, or that the request is an abuse of the writ). Accordingly, the Court GRANTS

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Petitioner's request for a stay.
CONCLUSION

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1.

Respondent's Motion to Dismiss Habeas Corpus Petition for Failure to Exhaust All

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Claims (Dkt. No. 5) is DENIED without prejudice to refiling if Petitioner fails diligently to pursue

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exhaustion in state court of his unexhausted claims.

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2.

Petitioner's request for a stay (Dkt. No. 6) is GRANTED. These proceedings are

hereby STAYED pending Petitioner's exhaustion of his state judicial remedies. Petitioner must act

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diligently in exhausting his state judicial remedies, or the stay may be lifted. He must file quarterly

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reports describing the progress of his state court proceedings, commencing thirty (30) days from the

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date of this Order and continuing every ninety (90) days thereafter until his state court proceedings

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are terminated. He must also attach to his status reports copies of the cover page of any document

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that he files with or receives from the California Supreme Court relating to the claims.

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The Clerk of the Court shall ADMINISTRATIVELY CLOSE the file pending the

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stay of this action. Nothing further will take place in this action until Petitioner receives a final

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decision from the California Supreme Court and, within thirty (30) days of doing so, moves to

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reopen the action, lift the Court's stay and amend the stayed petition to add the newly-exhausted

United States District Court
For the Northern District of California

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claims.

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4.

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IT IS SO ORDERED.

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This Order terminates Dkt. No. 5.

DATED: May 17, 2013
YVONNE GONZALEZ ROGERS
United States District Court Judge

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