Ashley v. Virga

Filing 7

ORDER STAYING CASE, ***Civil Case Terminated.. Signed by Judge ARMSTRONG on 6/20/12. (lrc, COURT STAFF) (Filed on 6/21/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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No. C 12-01618 SBA (PR)

AARON ASHLEY,
Petitioner,
v.
TIM VIRGA, Warden,

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Respondent.

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/

ORDER 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

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254 and an application to proceed in forma pauperis. Petitioner has also

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filed a motion to stay his federal petition while he exhausts his remedies in state court.
DISCUSSION

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Petitioner has exhausted certain claims in his petition; however, he has failed to exhaust state

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remedies with respect to his "ineffective assistance claim[s] against [his] appellate counsel for

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missing powerful meritorious claims." (Mot. to Stay at 2.) Therefore, the action must be dismissed

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as a mixed petition under Rose v. Lundy, 455 U.S. 509, 510 (1982), or in the alternative, Petitioner

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may elect to delete the unexhausted claims and proceed on the remaining claims. In his motion for a

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stay, Petitioner requests that he be permitted to return to state court to exhaust the unexhausted

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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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District courts have the authority to issue stays and the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA) does not deprive them of that authority. Rhines v. Webber, 544 U.S.

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269, 277-78 (2005). The district court's discretion to stay a mixed petition is circumscribed by

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AEDPA's stated purposes of reducing delay in the execution of criminal sentences and encouraging

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petitioners to seek relief in the state courts before filing their claims in federal court. Id. Because

United States District Court
For the Northern District of California

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the use of a stay and abeyance procedure has the potential to undermine these dual purposes of

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AEDPA, its use is only appropriate where the district court has first determined that there was good

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cause for the petitioner's failure to exhaust the claims in state court and that the claims are

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potentially meritorious. Id. Moreover, where granting a stay, the district court must effectuate the

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timeliness concerns in AEDPA by placing "reasonable limits on a petitioner's trip to state court and

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back." Id. at 278. Prisoners who may run the risk of having the federal statute of limitations expire

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while they are exhausting their state remedies may avoid this predicament "by filing a 'protective'

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petition in federal court and asking the federal court to stay and abey the federal habeas proceedings

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until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines,

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544 U.S. at 277-78).

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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, the claims state

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cognizable bases for federal habeas relief. This is Petitioner's first habeas petition, and there is no

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evidence that he seeks the stay for improper purposes. See Fetterly v. Paskett, 997 F.2d 1295, 1301-

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02 (9th Cir. 1993) (holding that a stay for the purpose of permitting exhaustion of unexhausted

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claims should be granted only if the claims petitioner seeks to pursue are cognizable under § 2254;

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there is a likelihood of prejudice to petitioner if the stay is not granted; and there is no evidence that

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the motion for a stay is brought to delay, vex, or harass, or that the request is an abuse of the writ).

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Additionally, the Court notes that Respondent has yet to file an answer on the merits to the petition.

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Accordingly, Petitioner's motion to stay the instant petition is GRANTED.

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CONCLUSION
For the foregoing reasons, Petitioner's motion to stay the instant petition (docket no. 3) is

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GRANTED. These proceedings are hereby STAYED pending Petitioner's exhaustion of his state

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judicial remedies. Petitioner must act diligently in exhausting his state judicial remedies, or the stay

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may be lifted. He must file quarterly reports describing the progress of his state court proceedings,

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commencing thirty (30) days from the date of this Order and continuing every ninety (90) days

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thereafter until his state court proceedings are terminated. He must also attach to his status reports

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United States District Court
For the Northern District of California

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copies of the cover page of any document that he files with or receives from the state courts relating

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to the claims.

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

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action. Nothing further will take place in this action until Petitioner receives a final decision from

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the highest state court and, within thirty (30) days of doing so, moves to reopen the action, lift the

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Court's stay and amend the stayed petition to add the newly-exhausted claims.

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Petitioner's application to proceed in forma pauperis (docket no. 4) is GRANTED.

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This Order terminates Docket nos. 3 and 4.

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IT IS SO ORDERED.

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DATED:

6/20/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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G:\PRO-SE\SBA\HC.12\Ashley1618.grantIFP&stay(mixed).wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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AARON ASHLEY,
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Case Number: CV12-01618 SBA
Plaintiff,

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CERTIFICATE OF SERVICE
v.

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TIM VIRGA et al,
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Defendant.
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United States District Court
For the 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.
That on June 21, 2012, 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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Aaron Ashley AA3143
California State Prison - Solano
P.O. Box 4000
Vacaville, CA 95696-4000
Dated: June 21, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\HC.12\Ashley1618.grantIFP&stay(mixed).wpd

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