MacIntyre v. Brazelton

Filing 9

ORDER GRANTING MOTIONS TO STAY PETITION; INSTRUCTIONS TO THE CLERK by Judge Lucy H. Koh granting 5 Motion to Stay; granting 6 Motion to Stay; denying 8 Motion for Extension of Time to Answer (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ANGUS MACINTYRE,

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Petitioner,
v.

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P.D. BRAZELTON,
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Respondent.
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No. C 12-3421 LHK (PR)
ORDER GRANTING MOTIONS TO
STAY PETITION; INSTRUCTIONS
TO THE CLERK
(Docket Nos. 5, 6, 8)

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Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to
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28 U.S.C. § 2254 challenging his conviction and sentence. Following an initial review of the
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petition, the Court found that Petitioner presented two cognizable claims, and ordered
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Respondent to show cause why the petition should not be granted. Petitioner has now filed
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motions to stay the proceedings so that he may exhaust new issues in state court.
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A district court may stay a mixed habeas petition, i.e., a petition containing both
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exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as to
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those claims that have not yet been presented to the state’s highest court. See Rhines v. Weber,
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544 U.S. 269, 277-78 (2005). In Rhines, the Supreme Court discussed the stay-and-abeyance
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procedure, explaining that a stay and abeyance “is only appropriate when the district court
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determines there was good cause for the petitioner’s failure to exhaust his claims first in state
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Order Granting Motions to Stay Petition; Instruction to the Clerk
G:\PRO-SE\SJ.LHK\HC.12\McIntyre421stay.wpd

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court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by the

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petitioner. Id.

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The instant case is distinguishable from Rhines, however, in that Petitioner has not filed a

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mixed petition; rather, it appears that he has filed a fully-exhausted petition and now asks for a

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stay while he returns to state court to exhaust unexhausted claims. In King v. Ryan, 564 F.3d

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1133 (9th Cir. 2009), the Ninth Circuit clarified that the procedure for granting a stay under such

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circumstances is different from the procedure employed where a petitioner seeks to stay a mixed

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petition. Specifically, where a petitioner seeks a stay of a fully-exhausted petition while he

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returns to state court to exhaust unexhausted claims, no showing of good cause is required to

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stay the petition. Id. at 1140. Thereafter, however, the newly exhausted claims can be added to

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the original petition by amendment only if the claims are timely under the one-year statute of

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limitations set forth at 28 U.S.C. § 2244(d)(1). Id. at 1140-41. If the newly exhausted claims are

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not timely filed in accordance with said statute, they can be added to the original petition by

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amendment only if they “relate back” to the claims in the original petition that were fully

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exhausted at the time of filing. Id. at 1142-43 (citing Mayle v. Felix, 545 U.S. 644, 659 (2005));

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Fed. R. Civ. P. 15(c).

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Here, as noted, Petitioner has filed a fully exhausted petition and requests a stay until the

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new claims he wishes to raise are exhausted, and he is able to amend the instant petition to add

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those claims. Under such circumstances, the Court may grant a stay without a showing of good

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cause. See King, 564 F.3d at 1140. Although the Court has reservations about the eventual

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timeliness of Petitioner’s new claims, and whether they would “relate back” to the original

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petition, the Court finds that the most prudent decision is to wait to address these issues after

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Petitioner exhausts his state remedies and moves to amend his petition with the newly exhausted

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claims.

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Accordingly, the Petitioner’s motions to stay are GRANTED. If Petitioner wishes to

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have this Court consider his additional claims, he must properly present these claims to the state

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courts. Once the California Supreme Court has issued a decision on Petitioner’s additional

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claims, and if he does not obtain relief in state court, Petitioner shall promptly notify this
Order Granting Motions to Stay Petition; Instruction to the Clerk
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Court within thirty days of the California Supreme Court’s decision by filing a “Motion to

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Reopen Action,” along with an AMENDED PETITION stating all the claims, including the

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newly exhausted claims, that he wishes to present to this Court. The Amended Petition

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shall have the caption, “AMENDED PETITION” and the case number C 12-3421 LHK.

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Failure to comply with these deadlines may result in dismissal of this action.

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The Clerk shall administratively close the file pending the stay of this action. This has no

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legal effect; it is purely a statistical procedure. When Petitioner informs the Court that he has

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exhausted his additional claims as set forth above, the case will be administratively re-opened.

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All pending motions are DENIED without prejudice to renewal once the case has been re-

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opened.
IT IS SO ORDERED.
1/7/13
DATED: _______________
LUCY H. KOH
United States District Judge

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Order Granting Motions to Stay Petition; Instruction to the Clerk
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