(HC) Horsley v. Cates ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN RAY HORSLEY, Case No. 1:23-cv-01248-EPG-HC 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO STAY 13 v. (ECF No. 2) 14 BRIAN CATES, ORDER DIRECTING PETITIONER TO 15 Respondent. FILE FULLY EXHAUSTED AMENDED PETITION 16 17 Petitioner Allen Ray Horsley, represented by counsel, is a state prisoner proceeding with 18 a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 19 On August 21, 2023, Petitioner filed a federal petition for writ of habeas corpus raising 20 five grounds for relief. (ECF No. 1.) That same day, Petitioner filed the instant motion to stay 21 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), or in the alternative pursuant to 22 Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 2.) Petitioner “seeks to have Grounds Four and 23 Five dismissed from the Petition, without prejudice, while he exhausts his remedies with respect 24 thereto in State Court.” (ECF No. 2 at 3.)1 25 Under Kelly, a three-step procedure is used: (1) the petitioner amends his petition to 26 delete any unexhausted claims; (2) the court in its discretion stays the amended, fully exhausted 27 petition, and holds it in abeyance while the petitioner has the opportunity to proceed to state 1 court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, 2 the petitioner may return to federal court and amend his federal petition to include the newly- 3 exhausted claims. 315 F.3d at 1070–71. However, a petitioner’s use of Kelly’s three-step 4 procedure is subject to the requirement of Mayle v. Felix, 545 U.S. 644 (2005), that any newly 5 exhausted claims that a petitioner seeks to add to a pending federal habeas petition must be 6 timely or relate back, i.e., share a “common core of operative facts,” to claims contained in the 7 original petition that were exhausted at the time of filing. King v. Ryan, 564 F.3d 1133, 1143 8 (9th Cir. 2009). As Kelly “does not require that a petitioner show good cause for his failure to 9 exhaust state court remedies,” King, 564 F.3d at 1135, the Court finds that Petitioner may 10 proceed with the Kelly procedure.2 11 “Pursuant to section 636, magistrate judges may hear and determine nondispositive 12 matters, but not dispositive matters, in § 2254 proceedings.” Mitchell v. Valenzuela, 791 F.3d 13 1166, 1168 (9th Cir. 2015) (citing Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004)). “[A] 14 motion to stay and abey section 2254 proceedings is generally (but not always) dispositive of the 15 unexhausted claims.” Mitchell, 791 F.3d at 1171. “To determine whether a motion is dispositive, 16 we have adopted a functional approach that looks to the effect of the motion, in order to 17 determine whether it is properly characterized as dispositive or non-dispositive of a claim or 18 defense of a party.” Id. at 1168–69 (internal quotation marks omitted) (quoting Flam v. Flam, 19 788 F.3d 1043, 1046 (9th Cir. 2015)). “[A] motion to stay is nondispositive where it ‘[does] not 20 dispose of any claims or defenses and [does] not effectively deny . . . any ultimate relief 21 sought.’” Mitchell, 791 F.3d at 1170 (second and third alterations in original) (quoting S.E.C. v. 22 CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). Cf. Bastidas v. Chappell, 791 23 F.3d 1155, 1164 (9th Cir. 2015) (analogizing a motion to stay to a motion to amend and noting 24 that while “[i]t should be no surprise that the magistrate judge’s decision to grant a motion to 25 amend is not generally dispositive; whether the denial of a motion to amend is dispositive is a 26 2 “Petitioner respectfully submits that Grounds Four and Five, once exhausted, will be timely when he seeks leave from this Honorable Court to amend the Petition to add these claims back in because they are ‘tied to a common 27 core of operative facts.’” (ECF No. 2 at 3 (quoting Mayle, 545 U.S. at 655).) In granting the Kelly stay, the Court expresses no opinion as to whether Grounds Four and Five are timely and/or relate back to the exhausted claims in 1 | different question entirely,” and observing that “the dispositive nature of a magistrate judge’s 2 | decision on a motion to amend can turn on the outcome”). Given that granting a stay in the 3 | instant proceeding “[does] not dispose of any claims or defenses and [does] not effectively deny any ultimate relief sought,” Mitchell, 791 F.3d at 1170 Gnternal quotation marks and citation 5 | omitted), the undersigned has authority to grant Petitioner’s request to stay. 6 Based on the foregoing, IT IS HEREBY ORDERED that: 7 1. Petitioner’s motion for a Kelly stay (ECF No. 2) is GRANTED; and 8 2. Within FOURTEEN (14) days of the date of service of this order, Petitioner is 9 DIRECTED to file an amended petition for writ of habeas corpus deleting Grounds Four 10 and Five. Thereafter, the Court will stay the proceedings pending exhaustion of state 11 remedies. 12 B IT IS SO ORDERED. Dated: _ September 13, 2023 [Jee Fey — 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28