Kennedy v. Gastello

Filing 11

ORDER VACATING ORDER TO SHOW CAUSE; 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 re 1 Petition for Writ of Habeas Corpus, filed by Mark Anthony Kennedy, ORDER STAYING CASE. Signed by Judge Yvonne Gonzalez Rogers on 6/9/2016. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 6/9/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK ANTHONY KENNEDY,
Petitioner,

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v.

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J. GASTELLO, Warden,
Respondent.

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Case No. 16-cv-01686-YGR (PR)
ORDER VACATING ORDER TO SHOW CAUSE;
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, has filed a petition for a writ of habeas corpus pursuant to 28

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U.S.C. § 2254. On April 29, 2016, Magistrate Judge Laurel Beeler issued an Order to Show

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United States District Court
Northern District of California

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Cause before this action was reassigned to the undersigned Judge. Dkt. 5.
On May 9, 2016, Petitioner filed a motion to stay his federal petition while he exhausts his

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remedies in state court. Dkt. 6. Specifically, Petitioner states that he wishes to exhaust his state

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judicial remedies as to his ineffective assistance of counsel (“IAC”) claims against his trial and

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appellate attorneys. Id. at 1.
Prisoners in state custody who wish to challenge in federal habeas proceedings either the

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

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

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every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c); Rose v. Lundy, 455

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U.S. 509, 515-16 (1982). If available state remedies have not been exhausted as to all claims, the

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district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir.

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1988). A dismissal solely for failure to exhaust is not a bar to returning to federal court after

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exhausting available state remedies. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.

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1995).

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Petitioners may seek a stay of the petition pursuant to Pace v. DiGuglielmo, 544 U.S. 408,

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416 (2005), under which a prisoner may file a protective petition in federal court and ask the court

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

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

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Webber, 544 U.S. 269, 277-278 (2005). A stay is appropriate where the district court determines

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

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such claims are potentially meritorious. Id.; see also Pace, 544 U.S. at 416.

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Here, it appears that good cause exists for Petitioner’s failure to exhaust his IAC claims on
direct appeal because these claims could be raised by way of state habeas corpus. Moreover, the

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IAC claims state cognizable bases for federal habeas relief. This is Petitioner’s first habeas

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petition, and there is no evidence that he seeks the stay for improper purposes. See Fetterly v.

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Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) (holding that stay for purpose of permitting

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exhaustion of unexhausted claims should be granted only if claims petitioner seeks to pursue are

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cognizable under section 2254; there is likelihood of prejudice to petitioner if stay is not granted;

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United States District Court
Northern District of California

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and there is no evidence that motion for stay is brought to delay, vex, or harass, or that request is

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abuse of writ). Accordingly, the Court GRANTS Petitioner’s request for a stay.

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The Court vacates the existing briefing schedule set in the April 29, 2016 Order to Show

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Cause. 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

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

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proceedings, commencing twenty-eight (28) days from the date of this Order and continuing

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every ninety-one (91) days thereafter until his state court proceedings are terminated. He must

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also attach to his status reports copies of the cover page of any document that he files with or

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receives from the state 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 IAC claims.

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This Order terminates Docket No. 6.
IT IS SO ORDERED.
Dated: June 9, 2016

______________________________
YVONNE GONZALEZ ROGERS
United States District Judge

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