(HC) Avery v. Arias ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STERLING LAMONT AVERY, No. 2:23-cv-1612 DJC KJN P 12 Petitioner, 13 v. NOTICE TO PRO SE HABEAS PETITIONER REGARDING 14 ROBERTO ARIAS, Warden, EXHAUSTION 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se and in forma pauperis. On November 8, 18 2023, respondent filed a motion to dismiss alleging that petitioner’s claims five through ten are 19 not exhausted. Petitioner’s opposition is due thirty days thereafter. (ECF No. 5.) Thus, 20 petitioner is provided the following information in connection with exhaustion of state court 21 remedies. 22 Federal law requires any habeas claim to be presented first to the state courts in order to 23 correct any constitutional error. See 28 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 24 509, 515-16 (1982) (explaining why federal habeas petitioners must exhaust claim by giving state 25 courts the first opportunity to correct constitutional error); O’Sullivan v. Boerckel, 526 U.S. 838, 26 845 (1999) (explaining that exhaustion requires the completion of “one complete round” of state 27 court review). 28 //// 1 If you have not yet presented all your claims to the highest state court, you may request 2 the federal court to place your federal habeas petition on hold while you return to state court(s) in 3 order to fully exhaust your claim(s). This is referred to as a “stay and abeyance.” Federal law 4 provides for two very different types of a stay and abeyance. Any motion you file for a stay 5 should specify which type of stay you are seeking. 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). You should address all three of these factors if you are requesting a Rhines 13 stay. If the court grants your 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 you to file any amended federal 15 habeas petition. 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 you to file multiple amended federal habeas 23 petitions, but it does not require a petitioner to demonstrate good cause for the failure to exhaust. 24 See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). However, a Kelly stay runs the risk of 25 preventing review on the merits of any unexhausted claim for relief due to the one year statute of 26 limitations governing federal habeas claims. See King, 564 F.3d at 1140-41 (emphasizing that a 27 “petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back 28 into his federal petition once he has exhausted them only if those claims are determined to be 1 | timely. Demonstrating timeliness will often be problematic under the now-applicable legal 2 || principles.”) (emphasis added); see also 28 U.S.C. § 2244(d)(1) (stating that a one year period of 3 || limitation shall apply to all federal habeas petitions challenging a state court judgment). 4 Nothing in this notice prevents you from returning to state court while there is a pending 5 || motion to dismiss your federal habeas petition based on lack of exhaustion. Ifthe state court 6 || issues a ruling on your constitutional claim(s) while your federal habeas case is pending, you 7 || should file a “Notice of Exhaustion” in this court along with a copy of the state court ruling. 8 || Dated: November 15, 2023 Foci) Aharon 10 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 1] /aver1612.exh 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28