United States District Court, E.D. California
CORNELIUS L. JONES, Petitioner,
W. J. SULLIVAN, Respondent.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, has filed an application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Petitioner challenges his 2014 convictions for
attempted murder, assault with a deadly weapon, and assault
likely to cause great bodily injury. Presently before the
court is petitioner's motion to proceed in forma pauperis
(ECF No. 2), motion to amend (ECF No. 6), and motion for stay
(ECF No. 10).
of the in forma pauperis application reveals that petitioner
is unable to afford the costs of suit. Accordingly, the
application to proceed in forma pauperis will be granted.
See 28 U.S.C. § 1915(a).
initiated this action by filing the original petition on June
24, 2019. (ECF No. 1.) After filing the original petition,
petitioner moved to amend the petition and concurrently filed
an amended petition. (ECF Nos. 6, 7.) Petitioner states that
he did not attach his exhibit to the original complaint to
substantiate his argument.
court will grant the motion to amend because as a general
rule, an amended pleading supersedes the original pleading.
See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967),
overruled in part by Lacey v. Maricopa County, 693
F.3d 896, 929 (9th Cir. 2012) (claims dismissed with
prejudice and without leave to amend do not have to be
re-pled in subsequent amended complaint to preserve appeal);
see also Rule 12, Rules Governing Section 2254 Cases
(The Federal Rules of Civil Procedure apply to habeas
proceedings “to the extent they are not inconsistent
with any statutory provisions or the rules.”). All
further references to the petition shall be to the amended
petition (ECF No. 7). The court will screen the amended
petition by separate order.
IN THE PETITION
states he is challenging his November 20, 2014 conviction in
the Sacramento County Superior Court. (ECF No. 7 at 1.)
Following a trial, petitioner was found guilty of attempted
murder, assault with a deadly weapon, and assault with force
likely to cause great bodily injury. (Id.)
Petitioner has raised two grounds for relief. He claims he
did not receive a fair trial because the prosecutor violated
his rights under Batson and there was insufficient
evidence to support the attempted murder conviction.
(Id. at 5-7.)
requests a stay pursuant to Rhines v. Weber, 544
U.S. 269 (2005), so that he can exhaust state remedies on his
unexhausted claims. (ECF No. 10.) In support of his request,
petitioner alleges that he did not have full access to the
record until his appeal was complete. Petitioner additionally
states there are issues he wanted to raise, but his appellate
counsel refused to raise those issues on direct appeal. He
further states that he filed an ineffective assistance of
counsel claim in the Sacramento Superior Court simultaneously
with the instant federal petition. Petitioner requests
additional time and a stay to explore this unexhausted
ineffective assistance of claim. (ECF No. 10 at 2.)
are two procedures available to petitioner should he wish to
proceed with exhausted and unexhausted claims for relief. In
Rhines v. Weber, 544 U.S. 269 (2005), the Supreme
Court held that “a district court may stay a mixed
petition and hold it in abeyance to allow the petitioner to
return to state court and present his unexhausted
claims.” Blake v. Baker, 745 F.3d 977, 980
(9th Cir. 2014) (citing Rhines, 544 U.S. at 275-76).
Under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),
the Ninth Circuit held that a district court may stay a
petition setting forth only exhausted claims, to permit
exhaustion of additional claims with the intention that they
will be added by amendment following exhaustion. King v.
Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing
Kelly, 315 F.3d at 1063).
“Kelly procedure, ” has been described
by the Ninth Circuit ...