Richard Farley v. Ronald Davis
Filing
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ORDER GRANTING MOTION TO STAY by Judge Phyllis J. Hamilton granting 61 Motion to Stay. (kcS, COURT STAFF) (Filed on 5/8/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RICHARD W. FARLEY,
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Petitioner,
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United States District Court
Northern District of California
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v.
Case No. 16-cv-04443-PJH
DEATH PENALTY CASE
RON DAVIS,
Respondent.
ORDER GRANTING MOTION TO STAY
Re: Dkt. No. 61
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Farley has filed a motion to stay the current proceeding pursuant to King v. Ryan,
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564 F.3d 1133, 1141-42 (9th Cir. 2009), and Kelly v. Small, 315 F.3d 1063 (9th Cir.
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2003), so that he may return to state court to exhaust his unexhausted claims. Davis has
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filed a statement of non-opposition.
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Under the procedure outlined in Kelly, “(1) a petitioner amends his petition to
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delete any unexhausted claims; (2) the court stays and holds in abeyance the amended,
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fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to
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exhaust the deleted claims; and (3) the petitioner later amends his petition and re-
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attaches the newly-exhausted claims to the original petition.” King, 564 F.3d at 1134
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(citing Kelly, 315 F.3d at 1070–71). Farley is not required to show good cause as under
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Rhines, but rather must eventually show that the amendment of any newly exhausted
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claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by
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sharing a “common core of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001),
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by complying with the statute of limitations. King, 564 F.3d at 1141–43.
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As noted by Davis in his statement of non-opposition, the Court’s February 5, 2018
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Order dismissing the unexhausted claims completed the first step of the process.
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Accordingly, Farley’s motion to stay is GRANTED. The Federal Public Defender of
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Arizona is hereby appointed to represent Farley in his state exhaustion proceedings.
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Within 90 days of the filing date of this Order, Farley shall file an exhaustion
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petition in state court. To the extent that any claim contains allegations or supporting
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documentation that were not part of the state court record, pursuant to Cullen v.
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Pinholster, 131 U.S. 1388, 1400 (2011), such materials must be presented to the
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California Supreme Court before they may be reviewed by this Court under 28 U.S.C
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United States District Court
Northern District of California
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§ 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
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thereafter until proceedings in his state exhaustion case are completed, Farley shall
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serve and file in this Court a brief report containing an update on the status of his pending
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state habeas action. No later than thirty (30) days after proceedings in his state case are
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completed, Farley shall serve and file notice that proceedings are completed.
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IT IS SO ORDERED.
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Dated: May 8, 2018
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PHYLLIS J. HAMILTON
United States District Judge
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