King v. Davey et al

Filing 9

ORDER Staying Habeas Proceedings; Directing Petitioner to File Quarterly Status Reports; Directing Clerk to Administrative Close this Case until the Court issues Order Lifting Staty and Granting 7 Petitioner's Motion for Leave to Proceed in forma pauperis filed by Jason King. Signed by Magistrate Judge Donna M. Ryu on 10/2/15. (ig, COURT STAFF) (Filed on 10/2/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JASON KING,

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Case No. 15-cv-03260-DMR (PR)

Petitioner,
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v.
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DAVE DAVEY, et al.,

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Respondents.

United States District Court
Northern District of California

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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

Petitioner, a state prisoner, filed his initial petition for a writ of habeas corpus pursuant to

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28 U.S.C. § 2254 and an application for leave to proceed in forma pauperis. He has since filed an

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amended petition, which is the operative petition in this action. Dkt. 6. In his amended petition,

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Petitioner admits that only one out of his five claims has been exhausted in state court; therefore,

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he requests a stay of the proceedings while he completes the process of exhausting his other four

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claims in state court. Dkt. 6 at 10.1 Plaintiff has consented to magistrate judge jurisdiction in this

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action. Dkt. 5.

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Prisoners in state custody seeking to challenge collaterally in federal habeas proceedings

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either the fact or length of their confinement are first required to exhaust state judicial remedies,

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either on direct appeal or through collateral proceedings, by presenting the highest state court

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available with a fair opportunity to rule on the merits of each and every claim they seek to raise in

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federal court. 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The

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exhaustion requirement is satisfied only if the federal claim (1) has been “fairly presented” to the

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state courts, see Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); or (2) no state remedy remains

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Page number citations refer to those assigned by the court’s electronic case management filing
system and not those assigned by Petitioner.

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available, see Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Petitioner states that he has

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filed a state habeas petition, which is currently pending before the state superior court and includes

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the claims that were not exhausted at the time he filed the instant federal petition. See Dkt. 6 at 4;

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see also 28 U.S.C. § 2254(b), (c). Accordingly, the instant federal petition is a mixed petition.

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District courts have the authority to issue stays of mixed petitions and the Antiterrorism

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and Effective Death Penalty Act (“AEDPA”) does not deprive them of that authority. Rhines v.

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Webber, 544 U.S. 269, 277-78 (2005). However, the district court’s discretion to stay a mixed

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petition is circumscribed by AEDPA’s stated purposes of reducing delay in the execution of

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criminal sentences and encouraging petitioners to seek relief in the state courts before filing their

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United States District Court
Northern District of California

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claims in federal court. Id. at 277.
Because the use of a stay and abeyance procedure has the potential to undermine these dual

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purposes of AEDPA, its use is only appropriate where the district court has first determined that

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there was good cause for the petitioner’s failure to exhaust the claims in state court and that the

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claims are potentially meritorious. Id. Here, the court finds that Petitioner has not engaged in

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dilatory tactics and the unexhausted claims appear to be potentially meritorious.

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Good cause appearing, Petitioner’s request for a stay is GRANTED, and the petition for a

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writ of habeas corpus is construed as a protective petition and STAYED so that Petitioner can

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exhaust his unexhausted claims in the state courts. See Pace v. DiGuglielmo, 544 U.S. 408, 416

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(2005) (prisoners who run risk of having federal statute of limitation expire while exhausting their

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state remedies may avoid this predicament “by filing a ‘protective’ petition in federal court and

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asking the federal court to stay and abey the federal habeas proceedings until state remedies are

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exhausted”); see also Rhines, 544 U.S. at 277-78 (district court has authority to stay mixed

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petition where there was good cause for petitioner’s failure to exhaust claim in state court and the

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claim is potentially meritorious).

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

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

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commencing twenty-eight (28) days from the date of this Order and continuing every ninety (90)

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days thereafter until his state court proceedings are terminated. He must also attach to his status
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reports copies of the cover page of any document that he files with or receives from the state

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courts relating to the claims.

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

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

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from the highest state court and, within twenty-eight (28) days of doing so, moves to reopen the

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action, lift the 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 is GRANTED. Dkt. 7.

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This Order terminates Docket No. 7.

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IT IS SO ORDERED.

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United States District Court
Northern District of California

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Dated: October 2, 2015
______________________________________
DONNA M. RYU
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JASON KING,

Case No. 4:15-cv-03260-DMR

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DAVE DAVEY, et al.,
Defendants.

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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.

United States District Court
Northern District of California

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That on October 2, 2015, I SERVED a true and correct copy(ies) of the attached Order, 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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Jason King ID: AK5267
Corcoran State Prison
4001 King Avenue
P.O. Box 8800
Corcoran, CA 93212

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Dated: October 2, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Ivy Lerma Garcia, Deputy Clerk to the
Honorable DONNA M. RYU
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