Jones v. Sullivan

          ORDER

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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).

         IN FORMA PAUPERIS

         Examination 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).

         MOTION TO AMEND

         Petitioner 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.

         The 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.

         ALLEGATIONS IN THE PETITION

         Petitioner 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^[1] and there was insufficient evidence to support the attempted murder conviction. (Id. at 5-7.)

         MOTION FOR STAY

         Petitioner 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.)

         I. Legal Standards

         There 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).

         The “Kelly procedure, ” has been described by the Ninth Circuit ...