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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 ANGUS MACINTYRE, 12 13 Petitioner, v. 14 P.D. BRAZELTON, 15 Respondent. 16 ) ) ) ) ) ) ) ) ) ) ) No. C 12-3421 LHK (PR) ORDER GRANTING MOTIONS TO STAY PETITION; INSTRUCTIONS TO THE CLERK (Docket Nos. 5, 6, 8) 17 Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254 challenging his conviction and sentence. Following an initial review of the 19 petition, the Court found that Petitioner presented two cognizable claims, and ordered 20 Respondent to show cause why the petition should not be granted. Petitioner has now filed 21 motions to stay the proceedings so that he may exhaust new issues in state court. 22 A district court may stay a mixed habeas petition, i.e., a petition containing both 23 exhausted and unexhausted claims, to allow the petitioner to exhaust state court remedies as to 24 those claims that have not yet been presented to the state’s highest court. See Rhines v. Weber, 25 544 U.S. 269, 277-78 (2005). In Rhines, the Supreme Court discussed the stay-and-abeyance 26 procedure, explaining that a stay and abeyance “is only appropriate when the district court 27 determines there was good cause for the petitioner’s failure to exhaust his claims first in state 28 Order Granting Motions to Stay Petition; Instruction to the Clerk G:\PRO-SE\SJ.LHK\HC.12\McIntyre421stay.wpd 1 court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by the 2 petitioner. Id. 3 The instant case is distinguishable from Rhines, however, in that Petitioner has not filed a 4 mixed petition; rather, it appears that he has filed a fully-exhausted petition and now asks for a 5 stay while he returns to state court to exhaust unexhausted claims. In King v. Ryan, 564 F.3d 6 1133 (9th Cir. 2009), the Ninth Circuit clarified that the procedure for granting a stay under such 7 circumstances is different from the procedure employed where a petitioner seeks to stay a mixed 8 petition. Specifically, where a petitioner seeks a stay of a fully-exhausted petition while he 9 returns to state court to exhaust unexhausted claims, no showing of good cause is required to 10 stay the petition. Id. at 1140. Thereafter, however, the newly exhausted claims can be added to 11 the original petition by amendment only if the claims are timely under the one-year statute of 12 limitations set forth at 28 U.S.C. § 2244(d)(1). Id. at 1140-41. If the newly exhausted claims are 13 not timely filed in accordance with said statute, they can be added to the original petition by 14 amendment only if they “relate back” to the claims in the original petition that were fully 15 exhausted at the time of filing. Id. at 1142-43 (citing Mayle v. Felix, 545 U.S. 644, 659 (2005)); 16 Fed. R. Civ. P. 15(c). 17 Here, as noted, Petitioner has filed a fully exhausted petition and requests a stay until the 18 new claims he wishes to raise are exhausted, and he is able to amend the instant petition to add 19 those claims. Under such circumstances, the Court may grant a stay without a showing of good 20 cause. See King, 564 F.3d at 1140. Although the Court has reservations about the eventual 21 timeliness of Petitioner’s new claims, and whether they would “relate back” to the original 22 petition, the Court finds that the most prudent decision is to wait to address these issues after 23 Petitioner exhausts his state remedies and moves to amend his petition with the newly exhausted 24 claims. 25 Accordingly, the Petitioner’s motions to stay are GRANTED. If Petitioner wishes to 26 have this Court consider his additional claims, he must properly present these claims to the state 27 courts. Once the California Supreme Court has issued a decision on Petitioner’s additional 28 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 2 G:\PRO-SE\SJ.LHK\HC.12\McIntyre421stay.wpd 1 Court within thirty days of the California Supreme Court’s decision by filing a “Motion to 2 Reopen Action,” along with an AMENDED PETITION stating all the claims, including the 3 newly exhausted claims, that he wishes to present to this Court. The Amended Petition 4 shall have the caption, “AMENDED PETITION” and the case number C 12-3421 LHK. 5 Failure to comply with these deadlines may result in dismissal of this action. 6 The Clerk shall administratively close the file pending the stay of this action. This has no 7 legal effect; it is purely a statistical procedure. When Petitioner informs the Court that he has 8 exhausted his additional claims as set forth above, the case will be administratively re-opened. 9 All pending motions are DENIED without prejudice to renewal once the case has been re- 10 11 12 13 opened. IT IS SO ORDERED. 1/7/13 DATED: _______________ LUCY H. KOH United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Order Granting Motions to Stay Petition; Instruction to the Clerk 3 G:\PRO-SE\SJ.LHK\HC.12\McIntyre421stay.wpd

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