(HC) Brooks v. Fox ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HAROLD B. BROOKS, No. 2:19-cv-00879 JAM GGH P 12 Petitioner, 13 v. ORDER 14 R. FOX, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. §2254. The matter was referred to the United States Magistrate Judge 19 pursuant to 28 U.S.C. §636(b)(1) and Local Rule 302(c). Petitioner has filed a motion to stay in 20 order to exhaust state court remedies on all of his claims. ECF No. 28. Respondent has filed an 21 opposition. ECF No. 29. For the following reasons, the motion to stay will be denied. 22 On May 23, 2019, the undersigned dismissed petitioner’s application for writ of habeas 23 corpus with leave to amend. ECF No. 24. The petition was dismissed for failure to comply with 24 Rule 2(c), Rules Governing Section 2254 Cases based on the court’s confusion on whether 25 petitioner was alleging grounds contesting his 1976 conviction from the San Francisco County 26 Superior Court or what appeared to be a denial for parole. Id. Moreover, based on petitioner’s 27 representations that he did not file an appeal for his conviction in the Court of Appeal, State 28 Supreme Court, or any other court (ECF No. 9 at 2-3), the undersigned instructed petitioner to 1 allege in his amended petition whether he had exhausted his state court remedies. ECF No. 24. On 2 June 21, 2019, petitioner requested a thirty-day extension of time to comply with the court’s May 3 23, 2019 instructions, which the court granted. ECF Nos. 26, 27. On July 8, 2019, petitioner 4 filed a one-page motion to stay. ECF No. 28. Petitioner did not provide whether he was seeking 5 a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) or Rhines v. Weber, 544 U.S. 6 269 (2005). 7 Respondent opposes the motion stating the motion is premature because petitioner has not 8 filed his amended petition clarifying the nature and details of his claims. ECF No. 29 at 2. 9 Respondent further argues a stay may be “futile depending on what state action or order petitioner 10 is challenging.” Id. The court agrees. Because it is unclear which conviction or judgment 11 petitioner is contesting, the motion to stay is premature. The undersigned will dismiss the motion 12 without prejudice subject to renewal to allow petitioner one more opportunity to file his amended 13 petition in compliance with the court’s May 23, 2019 order. Thereafter, petitioner may seek a 14 stay. 15 When amending his petition, petitioner should take the foregoing principles into 16 consideration if he seeks to file a motion to stay. A motion for stay and abeyance is available as 17 long as (1) good cause is shown for a failure to have first exhausted the claims in state court; (2) 18 the claim or claims at issue potentially have merit; and (3) there has been no indication that 19 petitioner has been intentionally dilatory in pursuing the litigation. Rhines v. Weber, 544 U.S. 20 269, 277-78 (2005). In the alternative, petitioner may proceed with a stay request as outlined in 21 King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (citing Kelly v. Small, 315 F.3d 1063 (9th Cir. 22 2003)). In King, the Ninth Circuit held that in addition to the stay procedure authorized in Rhines, 23 district courts also have discretion to permit petitioners to follow the three-step stay-and-abeyance 24 procedure approved in Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1998) and 25 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Pursuant to the King procedure, (1) a petitioner 26 amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance 27 the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state 28 court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches 1 the newly-exhausted claims to the original petition. Kelly, 315 F.3d at 1070–71. The King stay- 2 and abeyance procedure has no requirement of a good cause showing or that the claims are 3 potentially meritorious. However, the King procedure does not itself toll the statute of limitations 4 for the unexhausted claim. 5 Accordingly, the motion to say will be denied without prejudice and subject to renewal 6 after the submission of petitioner’s amended petition and in forma pauperis application. 7 Petitioner is reminded that he must take care to comply with the instructions set forth in this order 8 and the court’s May 23, 2019 order when filing his amended petition and application to proceed 9 in forma pauperis. 10 In accordance with the above, IT IS HEREBEY ORDERED that: 11 1. Petitioner’s motion to stay (ECF No. 28) is denied without prejudice to renewal; and 12 2. Petitioner shall file an amended petition and application to proceed in forma pauperis in 13 compliance with the court’s May 23, 2019 instructions within thirty days from the date of 14 this order. 15 Dated: August 6, 2019 /s/ Gregory G. Hollows 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28