Farnum v. LeGrand

Filing 37

ORDER Granting Petitioner's 35 Motion to Amend and for Stay Pending Exhaustion of State Remedies. The initial 34 Motion to Amend and for Stay is Denied as moot. Petitioner has 20 days from the date this Order is entered to file an Amen ded Petition containing only exhausted claims. Upon the filing of an Amended Petition this court shall stay this action and hold it in abeyance until the conclusion of Petitioner's state-court litigation. Signed by Judge Andrew P. Gordon on 6/19/2015. (Copies have been distributed pursuant to the NEF - SLD)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10
JOHN MICHAEL FARNUM,
11
12
13
14
15

)
)
Petitioner,
)
)
vs.
)
)
ROBERT LeGRAND , et al.,
)
)
Respondents.
)
____________________________________/

2:13-cv-01304-APG-PAL
ORDER

16

This is a habeas corpus proceeding under 28 U.S.C. § 2254 brought by John Michael

17

Farnum, a Nevada prisoner. On August 7, 2014, respondents filed a motion to dismiss in response to

18

Farnum’s habeas petition. ECF No. 27. This court granted that motion, in part, finding that several

19

of Farnum’s claims were unexhausted. ECF No. 32. The court gave Farnum the following choices:

20

(1) inform this court in a sworn declaration that he wishes to dismiss his unexhausted claims and

21

proceed only on the remaining grounds for relief, (2) inform this court in a sworn declaration that he

22

wishes to dismiss his petition to return to state court to exhaust his state remedies with respect to his

23

unexhausted claims or (3) move to stay this action while he returns to state court to exhaust his state

24

remedies with respect to his unexhausted claims. Id.

25
26

In response to that order, Farnum has filed a motion for a stay pursuant to Kelly v. Small, 315
F.3d 1063 (9th Cir. 2003). ECF No. 35.

1

In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit held that in addition to the

2

stay procedure authorized in Rhines v. Weber, 544 U.S. 269 (2005), district courts also have

3

discretion to permit petitioners to follow the three-step stay-and-abeyance procedure approved in

4

Kelly. Pursuant to that procedure, (1) a petitioner amends his petition to delete any unexhausted

5

claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the

6

petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the

7

petitioner later amends his petition and re-attaches the newly-exhausted claims to the original

8

petition. Kelly, 315 F.3d at 1070–71. Unlike the procedure for a stay under Rhines, the King/Kelly

9

stay-and-abeyance procedure has no requirement of a good cause showing or that the claims are

10

potentially meritorious. However, no statute of limitations protection is imparted by such a stay, nor

11

are exhausted claims adjudicated during the pendency of such a stay.

12

The respondents do not oppose Farnum’s motion for a Kelly stay, “as long as Farnum is

13

cognizant, and cautioned, that any claims that he dismisses now will likely be untimely when he

14

returns to federal court if they do not relate back to the claims that remain in his petition.” ECF No.

15

36. A petitioner seeking to avail himself of the Kelly three-step procedure must show that the

16

amendment of any newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545

17

U.S. 644, 655 (2005), by sharing a “common core of operative facts” and Duncan v. Walker, 533

18

U.S. 167 (2001), by complying with the statute of limitations. King, 564 F.3d at 1141–43.

19

Because Farnum, who has benefit of counsel in this action, has filed no reply to respondents’

20

response, this court is left at assume that he wishes proceed with a Kelly stay despite this warning.

21

Accordingly, his motion shall be granted.

22

IT IS THEREFORE ORDERED that petitioner’s amended motion to amend and for stay

23

pending exhaustion of state remedies (ECF No. 35) is GRANTED. His initial motion to amend and

24

for stay (ECF No. 34) is DENIED as moot.

25
26

2

1
2
3

IT IS FURTHER ORDERED that petitioner shall have twenty (20) days from the date this
order is entered within which to file an amended petition containing only exhausted claims.
IT IS FURTHER ORDERED that, upon the filing of an amended petition containing only

4

exhausted claims, this court shall stay this action and hold it in abeyance until the conclusion of

5

petitioner’s state-court litigation.

6

Dated this 19th day of June, 2015.

7
8

UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

3