United States District Court, N.D. California, Oakland Division
ORDER DENYING WITHOUT PREJUDICE PETITIONER’S
MOTION TO STAY ACTION
SAUNDRA BROWN ARMSTRONG SENIOR UNITED STATES DISTRICT JUDGE
commenced the instant habeas action to challenge his state
court criminal conviction and judgment. In an Order dated
March 11, 2016, the Court granted Respondent’s motion
to dismiss the petition as a mixed petition. The Court
directed Petitioner to make an election regarding how he
intended to proceed in light of the unexhausted claims. Dkt.
103 at 8. Petitioner was instructed to file a statement of
his intent either:
(1) to dismiss the unexhausted claims and go forward in this
action with only the exhausted claims; (2) to terminate this
action and return to state court to complete the exhaustion
of Claims Four, Eleven and Twelve before returning to federal
court to present all of his claims in a new petition; or (3)
to request a stay of these proceedings while he exhausts his
state judicial remedies.
Id. Petitioner was further instructed as follows:
“If Petitioner chooses option (3), he must show he
satisfies the Rhines criteria (i.e. he explains why he
failed to exhaust his unexhausted claims previously in state
court and why the claims are potentially meritorious) or he
must comply with the King/Kelly requirements . .
. .” Id. (footnotes added).
has submitted a request “to be allowed to select 3[rd]
option of the 3 the Court order advised [he] could select
from.” Dkt. 105 at 1. However, he fails to explain how
he satisfies the Rhines criteria or show that he
complies with the Kelly/King requirements.
in state custody who wish to challenge in federal habeas
proceedings either the fact or length of their confinement
are first required to exhaust state judicial remedies by
presenting the highest state court available with a fair
opportunity to rule on the merits of each and every claim
they seek to raise in federal court. See 28 U.S.C.
§ 2254(b), (c); Rose v. Lundy, 455 U.S. 509,
515-16 (1982). If available state remedies have not been
exhausted as to all claims, the district court must dismiss
the petition. Id. at 510; Guizar v.
Estelle, 843 F.2d 371, 372 (9th Cir. 1988). A dismissal
solely for failure to exhaust is not a bar to returning to
federal court after exhausting available state remedies.
See Trimble v. City of Santa Rosa, 49 F.3d 583, 586
(9th Cir. 1995).
may seek a stay of the petition pursuant to Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005), under which a
prisoner may file a protective petition in federal court and
request the court to stay federal habeas proceedings until
all state remedies are exhausted. District courts have the
authority to issue stays, notwithstanding the Antiterrorism
and Effective Death Penalty Act of 1996
(“AEDPA”). Rhines v. Webber, 544 U.S.
269, 277-278 (2005). There are two kinds of stays available
in a habeas action: the Rhines stay and the
King/Kelly stay. A stay under Rhines,
“is only appropriate when the district court determines
there was good cause for the petitioner’s failure to
exhaust his claims first in state court, ” the claims
are not meritless, and there are no intentionally dilatory
litigation tactics by the petitioner. Id. Any such
stay must be limited in time to avoid indefinite delay.
King/Kelly stay provides an alternative method of
addressing cases where a petitioner has some unexhausted
claims he desires to present in his federal habeas action.
Under the procedure outlined in Kelly v. Small, 315
F.3d 1063 (9th Cir. 2003), overruled on other
grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir.
2007), “(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 petition and re-attaches the newly-exhausted
claims to the original petition.” King v.
Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing
Kelly, 315 F.3d at 1070-71). A petitioner seeking to
avail himself of the Kelly three-step procedure is
not required to show good cause as under Rhines, but
rather must eventually show that the amendment of any newly
exhausted claims back into the petition satisfies both
Mayle v. Felix, 545 U.S. 644, 659 (2005), by sharing
a “common core of operative facts” and Duncan
v. Walker, 533 U.S. 167 (2001), by complying with the
statute of limitations. King, 564 F.3d at 1141.
though not entirely clear, it appears that Petitioner seeks a
stay pursuant to Rhines. See Dkt. 105. As
explained above, under Rhines, a mixed petition may
be stayed only if: “(1) the petitioner has ‘good
cause’ for his failure to exhaust his claims in state
court; (2) the unexhausted claims are potentially
meritorious; and (3) there is no indication that the
petitioner intentionally engaged in dilatory litigation
tactics.” Wooten v. Kirkland, 540 F.3d 1019,
1023 (9th Cir. 2008) (citations omitted). Good cause does not
require “extraordinary circumstances.”
Id. at 1024. However, the failure to exhaust based
on reasons such as the petitioner believed that his counsel
included all of the issues raised before the California Court
of Appeal in his petition to the California Supreme Court
does not constitute good cause. Id. Such a broad
interpretation of “good cause” would allow
routine stays of mixed petitions and would undermine the
goals of AEDPA, which authorizes stays of habeas petitions
only in “limited circumstances.” Id. The
burden is on the petitioner to demonstrate good cause for his
failure to exhaust state court remedies, to show that the
unexhausted claims are not “plainly meritless, ”
and to demonstrate that he has not engaged in abusive
litigation tactics. Jackson v. Roe, 425 F.3d 654,
662 (9th Cir. 2005).
the Court previously granted Petitioner a lengthy stay
pursuant to Rhines- from February 19, 2013 through
the date the stay was lifted on April 14, 2015-affording him
a total of two years to exhaust Claims Four, Eleven and
Twelve. Dkt. 48. Petitioner has not shown good cause for a
second stay. See Rhines, 544 U.S. at 277.
on the foregoing, the Court finds that Petitioner has not met
the Rhines requirements for a second stay.
Accordingly, Petitioner’s request for a second
Rhines stay is DENIED. However, in the interests of
justice, the denial is without prejudice to filing a renewed
motion for a stay so that Petitioner may show whether he
complies with the Kelly/King requirements outlined
above. As an alternative to filing a renewed motion for a
stay, Petitioner may instead move to dismiss his unexhausted
claims and move forward on the exhausted claims, as explained