(HC) Jones v. Sullivan ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELIUS L. JONES, No. 2:19-cv-1160 WBS DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 W. J. SULLIVAN, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 convictions for attempted 19 murder, assault with a deadly weapon, and assault likely to cause great bodily injury. Presently 20 before the court is petitioner’s request for stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 21 2003) and respondent’s statement of non-opposition. For the reasons set forth below, the court 22 will recommend that this action be stayed. 23 I. Background 24 This action proceeds on petitioner’s amended petition. (ECF No. 7.) Petitioner is 25 challenging his November 20, 2014 conviction in the Sacramento County Superior Court. (ECF 26 No. 7 at 1.) He claims that he did not receive a fair trial because the prosecutor violated his rights 27 //// 28 //// 1 under Batson1 and there was insufficient evidence to support the attempted murder conviction. 2 (ECF No. 7 at 5-7.) 3 After filing the petition, petitioner filed a motion for stay pursuant to Rhines v. Weber, 4 544 U.S. 269 (2005). (ECF No. 10.) The court determined that the petition did not contain any 5 unexhausted claims, provided petitioner with information regarding stays pursuant to Rhines and 6 Kelly, and denied the motion for stay without prejudice. (ECF No. 12.) Petitioner thereafter filed 7 a renewed motion for stay pursuant to Kelly. (ECF No. 13.) The court then directed respondent 8 to file a response to petitioner’s motion for stay. (ECF No. 14.) 9 II. Motion for Stay 10 A. Petitioner’s Motion and Respondent’s Response 11 Petitioner requested a stay of this action pursuant to Kelly. (ECF No. 13.) He also stated 12 that he is currently pursuing habeas relief in the California state courts. 13 The court directed respondent to file a response to petitioner’s motion for stay. (ECF No. 14 14.) Respondent does not oppose a Kelly stay. (ECF No. 17.) 15 B. Legal Standards 16 Under Kelly, a district court may stay a habeas petition setting forth only exhausted claims 17 in order to permit exhaustion of additional claims with the intention that they will be added by 18 amendment following exhaustion. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (citing 19 Kelly, 315 F.3d at 1063). The “Kelly procedure,” has been described by the Ninth Circuit as 20 involving a three-step process: 21 (1) Petitioner amends his petition, deleting any unexhausted claim; 22 (2) The court stays and holds in abeyance the amended, fully exhausted petition, allowing 23 petitioner the opportunity to proceed to state court to exhaust the deleted claims; and 24 //// 25 1 In Batsonv. Kentucky, 476 U.S. 76 (1986), the Supreme Court found that striking a prospective 26 juror because of racial bias violates the Fourteenth Amendment’s equal protection guarantee. See 27 Batson, 476 U.S. at 85 (“Exclusion of black citizens from service as jurors constitutes a primary example of the evil the Fourteenth Amendment was designed to cure.”) 28 1 (3) Petitioner later amends his petition and re-attaches the newly-exhausted claims to the 2 original petition. 3 King, 564 F.3d at 1135. A petitioner proceeding under the Kelly procedure may be able to amend 4 the petition to include the newly exhausted claims if they are timely under the statute of 5 limitations governing federal habeas petitions.2 If the claims are not timely, “a petitioner may 6 amend a new claim into a pending federal habeas petition . . . only if the new claim shares a 7 ‘common core of operative facts’ with the claims in the pending petition; a new claim does not 8 ‘relate back’ . . . simply because it arises from the ‘same trial, conviction, or sentence.’” King, 9 564 F.3d at 1141 (internal citations omitted). 10 C. Discussion 11 Petitioner has alleged that he did not have full access to the record until his direct appeal 12 was complete. (ECF No. 10.) He states that he is presently pursuing an ineffective assistance of 13 counsel claim in state court and there are other issues he wanted to raise on direct appeal that 14 were rejected by his counsel. Petitioner seeks a stay so that he may pursue his unexhausted 15 ineffective assistance of counsel claim. Respondent does not oppose the imposition of a Kelly 16 stay. 17 Because the petition contains only exhausted claims and respondent is not opposed, the 18 court will recommend that this action be stayed. Additionally, in recommending this action be 19 stayed the court makes no determination that the claims petitioner seeks to add are appropriate or 20 timely under Mayle v. Felix, 545 U.S. 644 (2005). 21 Petitioner will be instructed to file status reports of his progress through the state courts. 22 Once the California Supreme Court renders its opinion, provided the opinion is a denial of relief, 23 petitioner must file an amended petition including all of his exhausted claims. He is forewarned 24 //// 25 2 The habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period begins to run on the date on 26 which the state court judgment became final by the conclusion of direct review or the expiration 27 of time for seeking direct review, although the statute of limitations is tolled while a properly filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 28 2244(d). 1 | that claims may be precluded as untimely if they do not comport with the statute of limitations set 2 | forth in 28 U.S.C. § 2244(d). 3 I. Conclusion 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. Petitioner’s motion for stay (ECF No. 13) be granted. 6 2. These proceedings be stayed pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) 7 pending exhaustion of state remedies. 8 3. Petitioner be directed to file an initial status report of his progress in the state courts no 9 later than sixty (60) days after the date of service of this order, and then to file periodic 10 status reports every ninety (90) days thereafter until exhaustion is complete. 11 4. Petitioner be directed to file an amended petition in this court including all exhausted 12 claims within thirty (30) days after service of the final order of the California Supreme 13 Court. 14 5. The Clerk of the Court be directed to administratively close this case for purposes of case 15 status pending exhaustion. 16 These findings and recommendations are submitted to the United States District Judge 17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within forty-five (45) 18 || days after being served with these findings and recommendations, any party may file written 19 | objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 | shall be served and filed within thirty (30) days after service of the objections. The parties are 22 | advised that failure to file objections within the specified time may waive the right to appeal the 23 | District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 24 | Dated: March 31, 2020 25 26 07 | ppp ORAH BARNES DB: 1/Orders/Prisoner/THabeas/jone1160.stay fr UNITED STATES MAGISTRATE JUDGE 28