(HC) Peterson v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANTHONY PETERSON, No. 2:19-cv-01480 WBS GGH P 12 Petitioner, 13 v. ORDER 14 RALPH M. DIAZ, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. ECF No. 1. 19 In his “objections” to the January 13, 2020 Findings and Recommendations, petitioner 20 appears to seek a stay pending exhaustion of his fully unexhausted petition. ECF No. 18. 21 Petitioner has further provided a copy of the habeas petition that has been filed with the 22 California Supreme Court. ECF No. 19. In response to petitioner’s request to a motion for stay, 23 respondent argues a motion to stay is inappropriate for fully unexhausted petitions. ECF No. 20. 24 However, respondent is incorrect. “[A] district court has the discretion to stay and hold in 25 abeyance fully unexhausted petitioners under the circumstances set forth in Rhines.” Mena v. 26 Long, 813 F.3d 907, 912 (9th Cir. 2016) (citing Rhines v. Weber, 544 U.S. 269 (2005)). 27 A district court may properly stay a habeas petition and hold it in abeyance pursuant to 28 Rhines v. Weber, 544 U.S. 269 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 1 Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an 2 unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Assuming the petition itself has 3 been timely filed, such a stay “eliminates entirely any limitations issue with regard to the 4 originally unexhausted claims, as the claims remain pending in federal court[.]” King, 564 F.3d at 5 1140. A petitioner qualifies for a stay under Rhines so long as (1) good cause is shown for a 6 failure to have first exhausted the claims in state court; (2) the claim or claims at issue potentially 7 have merit; and (3) there has been no indication that petitioner has been intentionally dilatory in 8 pursuing the litigation. Rhines, 544 U.S. at 277-78. Although good cause does not require 9 “extraordinary circumstances,” courts must “interpret whether a petitioner has ‘good cause’ for a 10 failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court 11 should only stay mixed petitions in ‘limited circumstances.’” Wooten v. Kirkland, 540 F.3d 1019, 12 1024 (9th Cir. 2008) (quoting Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)). The Ninth 13 Circuit has further rejected a “broad interpretation of ‘good cause.’” Wooten, 540 F.3d at 1024. 14 Instead, “good cause turns on whether the petitioner can set forth a reasonable excuse, supported 15 by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 16 Pursuant to Rhines, petitioner will be granted an opportunity to file a motion for stay and 17 abeyance in which he sets forth good cause for failure to exhaust his claims prior to filing his 18 current federal habeas petition; that is unexhausted claims are meritorious; and that he has not 19 been dilatory in proceeding on his claims. Respondent will be further provided an opportunity to 20 file an opposition or statement of non-opposition to petitioner’s motion for stay. The court will set 21 forth an expedited briefing schedule on this matter. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. The “objections” will not be forwarded to the district judge as they are functionally a 24 request to file a motion for stay; 25 2. Petitioner shall have twenty-one days to file a motion for stay and abeyance pursuant 26 to Rhines v. Weber, 544 U.S. 269 (2005). Petitioner is warned that failure to file a motion for stay 27 and abeyance within the court’s deadline will result in a recommendation that this action be 28 dismissed as unexhausted; 1 3. Respondent is hereby directed to file an opposition or a notice of non-opposition to 2 petitioner’s stay and abeyance motion within fourteen days from service of the motion for stay; 3 4. Petitioner’s reply, if any, is due seven days thereafter; and 4 5. If petitioner exhausts any claims in the California Supreme Court prior to this court’s 5 resolution of the pending motion, petitioner shall immediately file a notice of exhaustion in this 6 court. 7 6. No extensions of time will be granted except in the most compelling of circumstances. 8 Dated: March 2, 2020 /s/ Gregory G. Hollows 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28