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Johnny Lugo Ibarra v. Anthony Hedgpeth


May 3, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Petitioner filed the instant petition for writ of habeas corpus on September 30, 2010. On October 26, 2010, the Court directed Respondent to file a response to the petition. After receiving an extension of time, Respondent filed a motion to dismiss on January 24, 2011. Petitioner did not file an opposition. On March 3, 2011, the undersigned issued Findings and Recommendation to grant the motion to dismiss.*fn1 On April 11, 2011, Petitioner filed a motion to stay and hold the petition in abeyance while he returns to state court to exhaust the unexhausted claims.


There are two different basis for a district court to stay a petition and hold it in abeyance. The first is under the three-step procedure set forth in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (hereinafter "Kelly"). Pursuant to Kelly, the petitioner initially amends the petition to delete any unexhausted claims. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-1071.) The court then stays and holds the amended petition in abeyance and allows the petitioner to return to state court to exhausted the deleted claims. Id. After completion of exhaustion, the petitioner amends the petition to add the newly-exhausted claims to the original petition. Id.

The Kelly procedures does not require a showing of good cause for the delay. King, 564 F.3d at 1140. The Ninth Circuit has noted, because the Kelly procedure does not leave the mixed petition pending, a petitioner proceeding under this procedure risks that he may not be able to comply with the timeliness of the deleted claims to amend back into the petition after exhaustion.*fn2 A claim can only relate back to a pending federal petition only if the new claim shares a "common core of operate facts" within the claims in the pending petition. Id. at 1141. A new claim does not relate back to another claims simply because it arises from "the same trial, conviction, or sentence. Mayle v. Felix, 545 U.S. 644, 662-664 (2004).

The other procedure is set forth in the Supreme Court's decision in Rhines v. Weber, 544 U.S. 269 (2005). Under Rhines, the unexhausted claims are not dismissed and the mixed petition remains pending in federal court while the petitioner returns to state court to exhaust. Id. at 277. Therefore, the Rhines procedure protects the petitioner any potential untimeliness. However, there are limitations when the petition may be stayed under Rhines. In order to qualify for a stay under Rhines, the petitioner must (1) show good cause for his failure to exhaust all claims before filing the federal action; (2) explain how his unexhausted claim is potentially meritorious; (3) indicate the status of any pending state court proceedings regarding the unexhausted claim; and

(4) there must be no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id. at 277-278. Petitioner has indicated that he intends to return to state court in order to fully exhaust Claims One through Nine.

In an effort to demonstrate good cause for his failure to exhaust these claims prior to filing in this Court, Petitioner contends that although he knew the nature of his claims, he was not aware he had to support his claims with further specificity. The California Supreme Court denied Petitioner's petition citing In re Swain, 34 Cal.2d 300, 304 (1949), which stands for the proposition that a petitioner has failed to state his claim with sufficient particularity. The fact that Petitioner was unaware of the need to plead his claims with more particularity does not demonstrate a showing of good cause. Mere ignorance of the law is insufficient to demonstrate good cause because such a determination "would render stay-and-abeyance orders routine" and would be contrary to Rhines instruction that district courts should only stay mixed petitions in "limited circumstances." See e.g. Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008) (a petitioner's mere belief that his attorney had included a claim in an appellate brief not sufficient showing of good cause because such finding would allow virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay, such a procedure would run afoul of Rhines instruction to stay mixed petitions only in 'limited circumstances.'"); see also Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Therefore, Petitioner is not entitled to a stay under Rhines.

However if Petitioner wishes to proceed with a stay pursuant to the Kelly procedure, he must first file an amended petition deleting the unexhausted claims. Petitioner is cautioned that the one year limitations period provided by section 2244(d)(1) applies and the Kelly procedure will not effectively protect the deleted unexhausted claims from future subjection to dismissal as untimely.

Based on the foregoing, IT IS HEREBY ORDERED THAT within thirty (30) days from the date of service of this order, Petitioner shall respond to this order by (1) indicating whether he wishes to stay the action pursuant to the Kelly procedure or (2) indicating that he desires to delete the unexhausted claims. Failure to comply with this order may result in a recommendation to dismiss the action. Local Rule 110.



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