(HC) Clark v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT ARTHUR CLARK, No. 23-cv-1088 DAD KJN P 12 Petitioner, 13 v. ORDER AND NOTICE TO PRO SE HABEAS PETITIONER REGARDING 14 COVELLO, EXHAUSTION 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se. On September 18, 2023, respondent filed 18 a motion to dismiss. Petitioner was advised in the July 19, 2023 order that his opposition to the 19 motion is due thirty days from the date any motion to dismiss was filed. (ECF No. 9.) 20 Respondent alleges that petitioner failed to exhaust his state court remedies as to the 21 ineffective assistance of trial counsel claim (first claim), arguing petitioner’s first claim was not 22 presented to the California Supreme Court. 23 Federal law requires any habeas claim to be presented first to the state courts in order to 24 correct any constitutional error. See 28 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 25 509, 515-16 (1982) (explaining why federal habeas petitioners must exhaust claim by giving state 26 courts the first opportunity to correct constitutional error); O’Sullivan v. Boerckel, 526 U.S. 838, 27 845 (1999) (explaining that exhaustion requires the completion of “one complete round” of state 28 court review). 1 If petitioner has not yet presented all of claims to the highest state court, petitioner may 2 request the federal court to place the federal habeas petition on hold while petitioner returns to 3 state court(s) in order to fully exhaust the claim(s). This is referred to as a “stay and abeyance.” 4 Federal law provides for two very different types of a stay and abeyance. Any motion for a stay 5 should specify which type of stay petitioner seeks. 6 The first type of a stay is referred to as a “Rhines” stay. See Rhines v. Weber, 544 U.S. 7 269, 278 (2005). The court may stay a habeas petition containing exhausted and non-exhausted 8 claims if petitioner demonstrates (1) good cause for the failure to previously exhaust the claims in 9 state court, (2) the claims at issue potentially have merit, and (3) petitioner has been diligent in 10 pursuing relief. Rhines, 544 U.S. at 277-78; see also Mena v. Long, 813 F.3d 907, 910-12 (9th 11 Cir. 2016) (extending the Rhines stay and abeyance procedure to federal habeas petitions that are 12 wholly unexhausted). Petitioner should address all three of these factors if requesting a Rhines 13 stay. If the court grants the request for a Rhines stay, the entire federal habeas petition including 14 the unexhausted claim(s) will be put on hold. It does not require any amended federal habeas 15 petition to be filed by petitioner. 16 The second type of a stay is referred to as a “Kelly” stay. In Kelly v. Small, 315 F.3d 17 1063 (9th Cir. 2003), a stay and abeyance involves the following three-step process: (1) the 18 petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in 19 abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to return to 20 state court to exhaust the deleted claims; and, (3) petitioner later amends his petition and re- 21 attaches the newly-exhausted claims to the original petition. This is a more cumbersome 22 procedure than a Rhines stay because it requires petitioner to file multiple amended federal 23 habeas petitions, but it does not require a petitioner to demonstrate good cause for the failure to 24 exhaust. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). However, a Kelly stay runs the 25 risk of preventing review on the merits of any unexhausted claim for relief due to the one year 26 statute of limitations governing federal habeas claims. See King, 564 F.3d at 1140-41 27 (emphasizing that a “petitioner seeking to use the Kelly procedure will be able to amend his 28 unexhausted claims back into his federal petition once he has exhausted them only if those claims 1 | are determined to be timely. Demonstrating timeliness will often be problematic under the now- 2 | applicable legal principles.”) (emphasis added); see also 28 U.S.C. § 2244(d)(1) (stating that a 3 || one year period of limitation shall apply to all federal habeas petitions challenging a state court 4 || judgment). 5 Nothing in this notice prevents petitioner from returning to state court while there is a 6 || pending motion to dismiss the federal habeas petition based on lack of exhaustion. Ifthe state 7 || court issues a ruling on the constitutional claim(s) while the instant federal habeas case is 8 | pending, petitioner should file a “Notice of Exhaustion” in this court along with a copy of the 9 || state court ruling. 10 In light of the additional information provided above, the undersigned grants petitioner an 11 || extension of time to file his opposition to the motion to dismiss. Failure to oppose the motion to 12 || dismiss may result in a recommendation that the motion to dismiss be granted. 13 Accordingly, IT IS HEREBY ORDERED that petitioner is granted thirty days from the 14 | date of this order in which to file an opposition to the motion to dismiss. 15 | Dated: October 3, 2023 6 Aectl Aharon 17 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 18 /clar1088.cot 19 20 21 22 23 24 25 26 27 28