Richard Farley v. Ronald Davis

Filing 63

ORDER GRANTING MOTION TO STAY by Judge Phyllis J. Hamilton granting 61 Motion to Stay. (kcS, COURT STAFF) (Filed on 5/8/2018)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

RICHARD W. FARLEY,

8

Petitioner,

9
10

United States District Court
Northern District of California

11

v.

Case No. 16-cv-04443-PJH

DEATH PENALTY CASE

RON DAVIS,
Respondent.

ORDER GRANTING MOTION TO STAY
Re: Dkt. No. 61

12
13
14

Farley has filed a motion to stay the current proceeding pursuant to King v. Ryan,

15

564 F.3d 1133, 1141-42 (9th Cir. 2009), and Kelly v. Small, 315 F.3d 1063 (9th Cir.

16

2003), so that he may return to state court to exhaust his unexhausted claims. Davis has

17

filed a statement of non-opposition.

18

Under the procedure outlined in Kelly, “(1) a petitioner amends his petition to

19

delete any unexhausted claims; (2) the court stays and holds in abeyance the amended,

20

fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to

21

exhaust the deleted claims; and (3) the petitioner later amends his petition and re-

22

attaches the newly-exhausted claims to the original petition.” King, 564 F.3d at 1134

23

(citing Kelly, 315 F.3d at 1070–71). Farley is not required to show good cause as under

24

Rhines, but rather must eventually show that the amendment of any newly exhausted

25

claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by

26

sharing a “common core of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001),

27

by complying with the statute of limitations. King, 564 F.3d at 1141–43.

28

1

As noted by Davis in his statement of non-opposition, the Court’s February 5, 2018

2

Order dismissing the unexhausted claims completed the first step of the process.

3

Accordingly, Farley’s motion to stay is GRANTED. The Federal Public Defender of

4

Arizona is hereby appointed to represent Farley in his state exhaustion proceedings.

5

Within 90 days of the filing date of this Order, Farley shall file an exhaustion

6

petition in state court. To the extent that any claim contains allegations or supporting

7

documentation that were not part of the state court record, pursuant to Cullen v.

8

Pinholster, 131 U.S. 1388, 1400 (2011), such materials must be presented to the

9

California Supreme Court before they may be reviewed by this Court under 28 U.S.C

10

United States District Court
Northern District of California

11

§ 2254(d)(1). Accordingly, they should be included in the exhaustion petition
One hundred and twenty days after the entry of this Order, and every 90 days

12

thereafter until proceedings in his state exhaustion case are completed, Farley shall

13

serve and file in this Court a brief report containing an update on the status of his pending

14

state habeas action. No later than thirty (30) days after proceedings in his state case are

15

completed, Farley shall serve and file notice that proceedings are completed.

16

IT IS SO ORDERED.

17
18
19
20

Dated: May 8, 2018
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

21
22
23
24
25
26
27
28
2