United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se and in forma pauperis, has
filed an application for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The matter was referred to a United
States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
April 11, 2019, respondent filed a motion to dismiss the
petition. (ECF No. 8). On May 2, 2019, petitioner filed a
motion to stay. (ECF No. 13). For the reasons stated below,
prior to ruling on either motion, the court shall direct
petitioner to file an amended petition that does not include
his unexhausted claim.
RESPONDENT'S MOTION TO DISMISS
motion to dismiss, filed April 1l, 2019, argues that the
petition should be dismissed because petitioner has failed to
exhaust one of his five claims as required under 28 U.S.C.
§ 2254(b)(1)(A). (See ECF No. 8 at 2).
Specifically, respondent contends that Claim Five of the
federal petition, which alleges ineffective assistance of
trial counsel for failure to subpoena and present exculpatory
evidence, was not raised in the California Supreme Court.
(See id. at 2-3). Respondent contends that as a
result, absent a stay, either the entire petition must be
dismissed, or petitioner must delete the unexhausted claim
and proceed with the exhausted ones. (See id. at 3).
PETITIONER'S MOTION TO STAY
motion to stay, filed May 2, 2019, requests that this matter
be stayed and held in abeyance pursuant to Kelly v.
Small, 315 F.3d 1063 (9th Cir. 2002) while he returns to
state court to exhaust Claim Five. (See ECF No. 13
at 3). In support of the motion, petitioner states that he
suffers from a mental disorder which prevented him from
filing claims on appeal that had not been presented by his
attorney. (See id. at 5).
Kelly stay procedure is used with mixed petitions.
When it is implemented, the following occurs: (1) the
petitioner amends the mixed petition to delete any
unexhausted claims; (2) the court stays and holds in abeyance
the amended, fully exhausted petition, which, in turn,
provides the petitioner with 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. See King
v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing
Kelly, 315 F.3d at 1070-71). If, however, the
one-year statute of limitations period has expired by the
time the petitioner returns to federal court, new claims may
be amended into a pending federal habeas petition only if
they share a common core of operative facts with the claims
in the pending federal habeas petition. See Mayle v.
Felix, 545 U.S. 644, 659 (2005). “A new claim does
not ‘relate back' to the filing of an exhausted
petition simply because it arises from ‘the same trial,
conviction, or sentence'.” King, 564 F.3d
at 1141 (quoting Mayle, 545 U.S. at 662-64). In
other words, the Kelly procedure “does nothing
to protect a petitioner's unexhausted claims from
untimeliness in the interim.” King, 564 F.3d
review of the record reveals no reason why petitioner's
motion to stay pursuant to Kelly should not be
granted. However, prior to granting the motion, petitioner
must first file an amended petition that does not include the
unexhausted Claim Five. Petitioner will be ordered to do so
herein. Once petitioner has done this, the motion to stay
will be granted, and the amended petition will be held by the
court but not considered. Thereafter, petitioner will return
to state court and exhaust Claim Five. After petitioner has
done this, he shall return to this court and request
permission to lift the stay and amend his petition to add the
exhausted claim to it. At that point, the stay shall be
lifted, petitioner's request to amend shall be granted,
and the action will be able to proceed in federal court.
the court anticipates eventually granting petitioner's
motion to stay (ECF No. 13), respondent's motion to
dismiss the petition as not fully exhausted (ECF No. 8) will
eventually be denied as moot. The court will, however,
refrain from ruling on either of these motions until
petitioner files the first amended petition.
IT IS HEREBY ORDERED that:
Clerk of Court shall change the spelling of petitioner's
last name in the case caption on the docket from
“Leonardo” to “Leonard, ” and
Within thirty days of the date of this order, petitioner
shall file an amended petition that does ...