(HC)Kakowski v. Pollard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN KAKOWSKI, No. 2:20-cv-00549 GGH P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 MARCUS POLLARD, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion to stay his federal habeas petitioner 19 pursuant to King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). ECF No. 7. Petitioner states he is 20 seeking a stay to exhaust his three unexhausted claims in the California Supreme Court. Id. 21 Pursuant to the King, 564 F.3d 1133, and Kelly v. Small, 315 F.3d 1063, 1070–71 (9th 22 Cir. 2002) stay procedure, (1) a petitioner amends his petition to delete any unexhausted claims; 23 (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the 24 petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the 25 petitioner later amends his petition and re-attaches the newly-exhausted claims to the original 26 petition. Kelly, 315 F.3d at 1070–71. The King/Kelly stay and abeyance procedure has no 27 requirement of a good cause showing or that the claims are potentially meritorious. However, 28 unlike a Rhines stay, the King/Kelly procedure does not itself toll the statute of limitations for the 1 unexhausted claims. If the claims are not timely pursuant to the one-year state of limitations set 2 forth in 28 U.S.C. § 2244(d), including relation-back to an exhausted claim, or statutorily or 3 equitably tolled if otherwise untimely, petitioner’s King/Kelly stay may have been a waste of time 4 as far as the federal courts are concerned. 5 Under the King/Kelly procedure, petitioner is required to file an amended petition deleting 6 his exhausted claims. Although petitioner has failed to do so here, rather than require petitioner to 7 file an amended petition due to statute of limitations concerns, the court will strike the 8 unexhausted claims (claim two—ineffective assistance of counsel based on trial counsel’s failure 9 to request instruction on the lesser included offense; claim three—petitioner’s sentence was 10 excessive and violated the 8th Amendment’s cruel and unusual punishment; claim four— 11 ineffective assistance of counsel based on trial counsel’s failure to raise an objection to the 12 sentence imposed) without prejudice. It will therefore be recommended that petitioner’s motion to 13 stay be granted pursuant to King and Kelly. 14 Petitioner is again reminded that no statute of limitations protection is imparted by a 15 King/Kelly stay, nor are exhausted claims adjudicated during the pendency of such a stay. 16 Accordingly, petitioner need not wait for the adoption of these findings and recommendations to 17 exhaust his claims in the California Supreme Court. 18 In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court 19 assign a district judge to this action. 20 Further, IT IS HEREBY RECOMMENDED that: 21 1. Petitioner’s motion to stay (ECF No. 7) be granted and this action be administratively 22 stayed pursuant to King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) and Kelly v. Small, 315 F.3d 23 1063, 1070–71 (9th Cir. 2002); 24 2. The unexhausted claims in the original action, claims two, three, and four, be stricken 25 without prejudice; 26 3. Within 30 days of the adoption of these findings and recommendations, petitioner be 27 directed to inform the court the status of his state court petition; and 28 4. Within 30 days of the California Supreme Court issuing a final order resolving 1 petitioner’s unexhausted claims, petitioner be directed to file a motion to lift the stay, along with 2 an amended petition containing all exhausted claims. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 5 after being served with these findings and recommendations, petitioner may file written 6 objections with the court. The document should be captioned “Objections to Magistrate Judge's 7 Findings and Recommendations.” Failure to file objections within the specified time may waive 8 the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.1991). 9 Dated: June 19, 2020 /s/ Gregory G. Hollows 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28