United States District Court, E.D. California
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
before the court is respondent's motion to dismiss (Doc.
11). In response, petitioner filed a motion to stay this
action (Doc. 14). Petitioner requested a stay issue in this
action based on a pending appeal filed in Porteous v.
Fisher, Jr., 2:15-cv-1817-GEB-KJN. In that earlier
action, which appears to challenge a separate conviction,
petitioner had appealed a finding that the petition filed in
that action was barred by the statute of limitations.
Petitioner contends that his mental disorders impaired his
ability to timely file his petition. That issue was raised in
his appeal of the dismissal issued in 2:15-cv-1817-GEB-KJN.
originally filed a notice of non-opposition to the motion to
stay. However, since that filing, respondent has reported to
the court that petitioner's request for a certificate of
appealability in case 2:15-cv-1817-GEB-KJN has been denied by
the Ninth Circuit Court of Appeals. Respondent contends there
is no longer a basis for the stay.
district court is not required to sua sponte consider stay
and abeyance in the absence of a request from the petitioner,
see Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir.
2007), or to inform the petitioner that stay and abeyance may
be available, see Brambles v. Duncan, 412 F.3d 1066,
1070-71 (9th Cir. 2005). When a stay-and-abeyance motion is
filed, there are two approaches for analyzing the motion,
depending on whether the petition is mixed or fully
exhausted. See Jackson v. Roe, 425 F.3d 654, 661
(9th Cir. 2005). If the petitioner seeks a stay-and-abeyance
order as to a mixed petition containing both exhausted and
unexhausted claims, the request is analyzed under the
standard announced by the Supreme Court in Rhines v.
Weber, 544 U.S. 269 (2005). See Jackson, 425
F.3d at 661. If, however, the petition currently on file is
fully exhausted, and what petitioner seeks is a
stay-and-abeyance order to exhaust claims not raised in the
current federal petition, the approach set out in Kelly
v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled
on other grounds by Robbins, 481 F.3d 1143, applies.
See Jackson, 425 F.3d at 661.
Rhines, as a threshold condition for this court to
exercise its discretion to issue a stay-and-abeyance order as
to mixed petitions, the court must determine that there was
good cause for failing to exhaust claims before raising them
in the federal case. See Rhines v. Weber, 544 U.S.
at 277. If there is good cause for petitioner's failure
to exhaust, it may be an abuse of discretion to deny stay and
abeyance where there is no indication of intentional dilatory
litigation tactics. See id. at 278. Stay and
abeyance is not appropriate where the unexhausted claim is
plainly meritless. See id. at 277. If a
stay-and-abeyance order is issued with respect to a mixed
petition, the district court may employ a three-step
procedure which involves: (1) the dismissal of unexhausted
claims from the original petition; (2) a stay of the
remaining claims pending exhaustion; and (3) amendment of the
original petition to add newly exhausted claims that then
relate back to the original petition. See Calderon v.
United States Dist. Ct. (Taylor), 134 F.3d 981, 986-88
(9th Cir. 1998).
Kelly, the district court is required to
“consider the option of holding the exhausted petition
in abeyance so that the petitioner would be able to exhaust
his claims in state court before attempting to amend his
federal petition to include the newly exhausted
claims.” Jackson, 425 F.3d at 661 (citing
Kelly, 315 F.3d at 1070). Whether to exercise this
option is within the discretion of the district court.
See Kelly, 315 F.3d at 1070. However, the Ninth
Circuit has recognized the “clear appropriateness of a
stay when valid claims would otherwise be forfeited.”
Id Moreover, a stay under such circumstances
promotes comity by deferring the exercise of federal
jurisdiction until after the state court has ruled. See
it appears the petition filed in this case is fully
exhausted. Neither party argues to the contrary. The reason
petitioner gives for requesting the stay of these proceedings
is the appeal he filed in his prior case. That appeal has now
been resolved. Thus, the undersigned finds no reason to grant
the motion to stay.
IT IS HEREBY ORDERED that:
Petitioner's motion to stay these proceedings (Doc. 14)
is denied; and
Petitioner shall file any opposition to respondent's