United States District Court, E.D. California
F. BRENNAN, UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding without counsel in an action
brought under 28 U.S.C. § 2254. The case was referred to
this court by Local Rule 302 pursuant to 28 U.S.C. §
636(b)(1) and is before the undersigned pursuant to the
consent of the parties. E.D. Cal. Local Rules, Appx. A, at
(k)(4); ECF Nos. 7, 8. Currently before the court are
respondent’s motion to dismiss the case as partially
unexhausted (ECF No. 9) and petitioner’s motion to stay
the case (ECF No. 15). For the reasons that follow, the
petition is dismissed without prejudice to allow petitioner
the opportunity to file an amended petition containing only
his exhausted claims.
is serving a determinate sentence of 23 years and 8 months
following a 2011 conviction on three counts of robbery with
enhancements. ECF No. 11, Documents Lodged ISO Resp.’s
Mot. to Dismiss (hereinafter “Lodg. Docs.”) No.
1. The California Court of Appeal affirmed the judgement in
2014, and the California Supreme Court denied
petitioner’s request for further review. Lodg. Docs.
Nos. 2-4. Petitioner has not filed any state habeas
The Motion to Dismiss and the Motion to Stay
argues that the petition should be dismissed because one of
the claims raised in it - that his trial counsel rendered
ineffective assistance by failing to preserve “the
hearsay objection to confrontation clause to fair
trial” - has not been exhausted. ECF No. 9. Petitioner
responds that he believes that issue was raised in
his petition for review to the California Supreme Court and
asks that the court stay this case to allow him to
communicate with the attorney who filed the petition for
review to confirm that belief. ECF Nos. 12, 15.
The Exhaustion Requirement
district court may not grant a petition for a writ of habeas
corpus unless the petitioner has exhausted available state
court remedies. 28 U.S.C. § 2254(b)(1). A state will not
be deemed to have waived the exhaustion requirement unless
the state, through counsel, expressly waives the requirement.
28 U.S.C. § 2254(b)(3).
of state remedies requires that petitioners fairly present
federal claims to the highest state court, either on direct
appeal or through state collateral proceedings, in order to
give the highest state court “the opportunity to pass
upon and correct alleged violations of its prisoners’
federal rights.” Duncan v. Henry, 513 U.S.
364, 365 (1995) (some internal quotations omitted).
“[A] state prisoner has not ‘fairly
presented’ (and thus exhausted) his federal claims in
state court unless he specifically indicated to that court
that those claims were based on federal law.” Lyons
v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended
by 247 F.3d 904 (9th Cir. 2000). “[T]he petitioner must
make the federal basis of the claim explicit either by citing
federal law or the decisions of federal courts, even if the
federal basis is self-evident . . . .” Id.
(citations omitted); see also Gray v. Netherland,
518 U.S. 152, 162-63 (1996) (“[A] claim for relief in
habeas corpus must include reference to a specific federal
constitutional guarantee, as well as a statement of the facts
that entitle the petitioner to relief.”);
Duncan, 513 U.S. at 365-66 (to exhaust a claim, a
state court “must surely be alerted to the fact that
the prisoners are asserting claims under the United States
addition to identifying the federal basis of his claims in
the state court, the petitioner must also fairly present the
factual basis of the claim in order to exhaust it.
Baldwin v. Reese, 541 U.S. 27, 29 (2004);
Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir.
2010). “[T]he petitioner must . . . provide the state
court with the operative facts, that is, ‘all of the
facts necessary to give application to the constitutional
principle upon which [the petitioner] relies.’”
Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)
(quoting Daugharty v. Gladden, 257 F.2d 750, 758
(9th Cir. 1958)).
federal habeas petitioner has failed to exhaust a claim in
the state courts according to these principles, the
petitioner may ask the federal court to stay its
consideration of her petition while she returns to state
court to complete exhaustion. Two procedures may be used in
staying a petition - one provided for by Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2002) and the other by
Rhines v. Weber, 544 U.S. 269 (2005). King v.
Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009). Under the
Kelly procedure, the district court may stay a
petition containing only exhausted claims and hold it in
abeyance pending exhaustion of additional claims which may
then be added to the petition through amendment.
Kelly, 315 F.3d at 1070-71; King, 564 F.3d
at 1135. If the federal petition contains both exhausted and
unexhausted claims (a so-called “mixed”
petition), a petitioner seeking a stay under Kelly
must first dismiss the unexhausted claims from the petition
and seek to add them back in through amendment after
exhausting them in state court. King, 564 F.3d at
1138-39. The previously unexhausted claims, once exhausted,
must be added back into the federal petition within the
statute of limitations provided for by 28 U.S.C. §
2244(d)(1), however. King, 564 F.3d at 1140-41.
Under that statute, a one-year limitation period for seeking
federal habeas relief begins to run from the latest of the
date the judgment became final on direct review, the date on
which a state-created impediment to filing is removed, the
date the United States Supreme Court makes a new rule
retroactively applicable to cases on collateral review or the
date on which the factual predicate of a claim could have
been discovered through the exercise of due diligence. 28
U.S.C. § 2241(d)(1). A federal habeas petition does not
toll the limitations period under 28 U.S.C. §
2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82
Rhines, a district court may stay a mixed petition
in its entirety, without requiring dismissal of the
unexhausted claims, while the petitioner attempts to exhaust
them in state court. King, 564 F.3d at 1139-40.
Unlike the Kelly procedure, however, Rhines
requires that the petitioner show good cause for failing to
exhaust the claims in state court prior to filing the federal
petition. Rhines, 544 U.S. at 277-78; King,
564 F.3d at 1139. In addition, a stay pursuant to
Rhines is inappropriate where the unexhausted claims
are “plainly meritless” or where the petitioner
has engaged in “abusive litigation tactics or
intentional delay.” Id.
petitioner apparently believes that his ineffective
assistance claim was raised in his petition for review in the
California Supreme Court, respondent has provided a copy of
that petition, which includes no such claim. Lodg. Doc. No.
3. Accordingly, the petition is “mixed” and must
be dismissed unless petitioner has shown good cause under
Rhines to stay proceedings while he exhausts the
ineffective assistance claim. King, 564 F.3d at 1140
(noting that, to obtain a stay without showing good cause
under Kelly, the petitioner must first file an
amended petition that contains only exhausted claims).
Petitioner has not done so. He seeks a stay to allow him to
communicate with his former attorney to confirm that the
claim was raised in the California Supreme Court petition,
but the petition itself shows that a stay for this purpose
would be futile. And, as respondent has argued,