United States District Court, N.D. California
ORDER DENYING MOTION TO STAY WITHOUT PREJUDICE DKT.
NOS. 3, 4
J. VADAS United States Magistrate Judge.
a state prisoner, filed a pro se writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner was convicted
in this district, so venue is proper here. See 28
U.S.C. § 2241(d). Petitioner has also applied for leave
to proceed in forma pauperis and consented to the
jurisdiction of a Magistrate Judge.
was found guilty of various sexual related offenses. Petition
at 2. He was sentenced to 44 years in state prison. Petition
at 1. He states that his conviction was affirmed on direct
appeal and he is currently proceeding with a state habeas
court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner . . . [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
grounds for federal habeas relief, petitioner asserts that:
(1) the trial court committed misconduct in questioning
several witnesses; (2) there were improper jury instruction;
(3) his sentence violates the Eighth Amendment; (4) counsel
was ineffective for failing to address the improper jury
instruction; and (5) counsel was ineffective for not
objecting to the trial court's misconduct while
questioning several witnesses. It is not clear what claims
have been exhausted and what claims are currently pending in
the state court habeas petition. While petitioner has filed a
motion for a stay, he has not addressed why a stay should be
Rhines v. Weber, 544 U.S. 269 (2005) 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 good cause is shown for a failure
to have first exhausted the claims in state court, that the
claim or claims at issue potentially have merit and that
there has been no indication that petitioner has been
intentionally dilatory in pursuing the litigation.
Rhines, supra, at 277-78. If petitioner
wishes to stay this action, he shall file a motion addressing
the Rhines factors.
alternative, petitioner may file a motion for a stay pursuant
to the three-step procedure outlined in Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2003) and King v.
Ryan, 564 F.3d 1133 (9th Cir. 2009). 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 show that the amendment of
any newly exhausted claims back into the petition satisfies
both Mayle v. Felix, 545 U.S. 644, 655 (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
1141-43 (finding district court's dismissal of
unexhausted claims was improper because petitioner was not
required to show good cause to avail himself of the
Kelly three-part procedure but affirming the
dismissal as harmless because the unexhausted claims did not
relate back to the claims in the original petition that were
fully exhausted at the time of filing). However, no statute
of limitations protection is imparted by such a stay, nor are
exhausted claims adjudicated during the pendency of such a
stay. The motion for a stay is denied
without prejudice. Petitioner may file an amended motion
addressing the standards set forth above.
Petitioner's motion to proceed in forma pauperis (Docket
No. 4) is GRANTED.
motion for a stay (Docket No. 3) is DENIED without prejudice
to filing an amended motion in accordance with the standards
set forth above. The amended motion must be filed within
twenty-eight (28) days of the date this order is filed and
must include the caption and ...