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Pereira v. Swarthout

United States District Court, E.D. California

April 4, 2014

GARY SWARTHOUT, Warden, Respondent.


ALLISON CLAIRE, Magistrate Judge.

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the order filed on March 4, 2014, petitioner has submitted the appropriate affidavit in support of a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Accordingly, the request to proceed in forma pauperis will be granted. 28 U.S.C. § 1915(a).


Petitioner is serving a sentence of six years and six months following his 2012 conviction in Sacramento County Superior Court for second degree robbery, attempted carjacking, being a felon in possession of a firearm and resisting arrest. Petition at 1. Petitioner challenges his conviction/sentence on nine (9) grounds. Id. at 5-9, 16-21. Of those, petitioner asserts exhaustion only as to ground four, his claim that the trial court erred in instructing the jury as to the intent required for robbery. Id. at 10. Petitioner expressly states that he has not exhausted any of the other grounds. Id. at 12.

The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). If exhaustion is to be waived, it must be waived explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).[1] A waiver of exhaustion, thus, may not be implied or inferred. A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor , 404 U.S. 270, 276 (1971); Middleton v. Cupp , 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

Petitioner's options are (1) to voluntarily dismiss his eight (8) unexhausted claims and proceed on the exhausted claim 4 only; or (2) to seek a stay of the instant action pending exhaustion of the unexhausted claims.

If petitioner wishes the petition to be maintained as a mixed petition of both exhausted and unexhausted claims, he may seek a stay pursuant to Rhines v. Weber , 544 U.S. 269 (2005). In Rhines, the United States Supreme Court found that a stay and abeyance of a mixed federal petition should be available only in the limited circumstance that (1) good cause is shown for a failure to have first exhausted the claims in state court, (2) that the claim or claims at issue potentially have merit, and (3) that there has been no indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78.

Alternatively, petitioner may seek to stay an exhausted-claims-only petition pursuant to King v. Ryan , 564 F.3d 1133 (9th Cir. 2009) (citing Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003)). Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his federal petition to reincorporate the newly exhausted claims. Kelly , 315 F.3d at 1070 71. The Kelly stay-and-abeyance procedure does not require a showing of good cause or potential merit. However, using the Kelly procedure means that any newly-exhausted claims later added to the federal petition by amendment must relate back to the claims in the stayed petition; in other words, "the Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner's unexhausted claims from untimeliness in the interim." King v. Ryan, supra , 564 F.3d at 1141.

Petitioner must file a notice within twenty-eight days stating how he wishes to proceed. If petitioner wishes to proceed on an exhausted-claims-only petition without a stay, he is cautioned that any future attempt to amend the petition to add newly-exhausted claims might face challenges based on timeliness, the limitations applicable to second or successive petitions, and/or other procedural hurdles, depending on the circumstances. If petitioner wants to stay this case while exhausting claims 1 through 3 and 5 through 9 in state court, he must specify whether he seeks a stay under Rhines or under Kelly. If he wishes to proceed in this court on a mixed petition, he must file a motion for a stay addressing the Rhines factors, showing good cause for his failure to have first exhausted his eight unexhausted claims in state court, that each of these claims potentially have merit, and that there is no evidence he has been intentionally dilatory in pursuing the litigation. In the alternative, petitioner may request a Kelly stay as outlined in King v. Ryan, supra . As previously noted, a Kelly stay does not guarantee the timeliness of claims exhausted in the future and then re-presented to this court.

Request for Bail

Petitioner asks that he be released on bail during the pendency of the instant petition. He states that he has served two and a half years of his six and a half year sentence and is not a flight risk. ECF No. 8.

Standard for Bail Pending Collateral Review

It is within the inherent power of a district court to enlarge a state prisoner on bond pending hearing and decision on his application for a writ of habeas corpus. See e.g., In re Wainwright , 518 F.2d 173, 174 (5th Cir. 1975); United States ex rel. Thomas v. New Jersey , 472 F.2d 735, 743 (3d Cir.), cert. denied, 414 U.S. 878 (1973); Woodcock v. Donnelly , 470 F.2d 93, 94 (1st Cir. 1972) (per curiam). However, the bail standard for a person seeking collateral review is markedly different from the standard applied to a pretrial detainee. Persons accused of crimes and awaiting trial are presumed innocent and thus enjoy an Eighth Amendment right to be free from excessive bail. Stack v. Boyle , 342 U.S. 1, 4 (1951). In contrast, a habeas corpus petitioner requesting postconviction relief has already been convicted and thus is no ...

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