(HC) Saechao v. Matteson ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LAI FOU SAECHAO., No. 2:23-cv-0909 DAD DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 GISELLE MATTESON, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, filed an application for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Following issuance of findings and recommendations to deny a 20 stay that petitioner requested under Rhines v. Weber, 544 U.S. 269, 277-78 (2005), petitioner has 21 now moved for a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) (“Kelly”). (ECF No. 22 11.) The undersigned recommends that a motion to stay be granted under the Kelly procedure. 23 I. Background 24 The first amended petition raises three apparently exhausted grounds for relief as follows: 25 (1) insufficient evidence to support felony murder conviction; (2) instructional error in the failure 26 to instruct on theft as the target of the underlying felony; and (3) violation of Double Jeopardy by 27 use of the same conduct to support the offense and elevate the sentence. (ECF No. 6 at 2-3.) 28 Petitioner raised these grounds on direct appeal. (Id. at 20.) Petitioner seeks to return to state court 1 to exhaust the following additional claims: (1) ineffective assistance of counsel; (2) prosecutorial 2 misconduct; and (3) newly discovered evidence. (See ECF No. 11; ECF No. 7 at 1-2.) 3 II. Applicable Law and Analysis 4 A. Exhaustion 5 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has 6 exhausted the remedies available in state court. A district court may not adjudicate a federal 7 habeas corpus petition unless the petitioner has exhausted state remedies on each of the claims 8 raised in the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). A petitioner satisfies the 9 exhaustion requirement by providing the highest state court with a full and fair opportunity to 10 consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 11 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 12 (1986). A “mixed petition,” meaning a petition containing both exhausted and unexhausted 13 claims, is subject to dismissal. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991). 14 B. Procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) 15 “[T]he Kelly procedure... is not premised upon a showing of good cause.” King v. Ryan, 16 564 F.3d 1133, 1140 (9th Cir. 2009). Under Kelly, a case moves through three stages: first, the 17 petitioner amends his petition to delete any unexhausted claims; second, the court, in its 18 discretion, stays the amended, fully-exhausted petition, and holds it in abeyance while the 19 petitioner has the opportunity to proceed to state court to exhaust the deleted claims; and third, 20 once the deleted claims have been exhausted in state court, the petitioner may return to federal 21 court and amend his federal petition, adding back the newly-exhausted claims. See Kelly, 315 22 F.3d at 1070-71 (citing Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998)). 23 Under Kelly, a petitioner can only amend his petition with his newly exhausted claim if 24 that claim is “timely” when amendment is sought. See King, 564 F.3d at 1140-41. Unlike filing 25 an application for state habeas relief, filing a federal habeas claim does not toll AEDPA’s statute 26 of limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001). To be timely, a claim must either 27 (1) meet AEDPA’s statute of limitations requirements, see 28 U.S.C. § 2244(d)6 or (2) “relate 28 back” to claims contained in the original petition that were exhausted at the time of filing. See 1 King, 564 F.3d at 1143; Mayle v. Felix, 545 U.S. 644, 664 (2005). A claim that simply arises 2 from “the same trial, conviction, or sentence” does not necessarily relate back to the initial 3 claims. See Mayle, 545 at U.S. 659. To “relate back,” the new claim must share a “common core 4 of operative facts” with the claims in the pending petition. Id. 5 Thus, after a stay under Kelly, petitioner will either need to meet one of the two 6 requirements: his amended petition must be timely under AEDPA or his newly exhausted claims 7 must “relate back” to his previously exhausted claims. The undersigned expresses no opinion as 8 to whether petitioner will be able to meet either of these requirements. See Pliler v. Ford, 542 9 U.S. 225, 233 (2004) (finding that district courts need not “give specific advisements as to the 10 availability and wisdom” of various options when seeking a stay of habeas petition). 11 Here, petitioner has already submitted a first amended petition which contains only his 12 exhausted claim. (ECF No. 6.) Petitioner has, therefore, satisfied the first step under Kelly. 13 Absent any other procedural bars, this route will allow petitioner’s exhausted claim to be 14 considered by this court. As set forth, petitioner will later need to either show that any newly 15 exhausted claims are timely or that they relate back to his original exhausted claim. Therefore, 16 while it is being recommended that petitioner’s motion to stay be granted under Kelly, the court 17 does not at this time reach the question of whether either of petitioner’s unexhausted claims may 18 later be presented in this action by way of amendment. The court will address that question when, 19 and if, petitioner seeks leave to present his newly exhausted claims to this court in a further 20 amended federal petition under the third step of Kelly. 21 III. Conclusion and Recommendation 22 For the foregoing reasons, IT IS RECOMMENDED as follows: 23 1. Petitioner’s motion to stay under the procedure authorized by the Ninth Circuit in 24 Kelly, 315 F.3d 1063 (ECF No. 11), be GRANTED; 25 2. This action be STAYED pending further exhaustion of state remedies; 26 3. Petitioner be DIRECTED to file an initial status report detailing his progress in the 27 state courts within sixty (60) days of the date of service of any order adopting these findings and 28 //// 1 || recommendations, and then to file periodic status reports every ninety (90) days thereafter until 2 | exhaustion is complete; 3 4. Petitioner be DIRECTED to file an amended petition containing all exhausted claims 4 | within thirty (30) days following the final order of the state courts; 5 5. Petitioner be forewarned that failure to comply with the order to file status reports will 6 | result in the court vacating the stay; and 7 6. The Clerk of the Court be directed to administratively close this case for purposes of 8 || case status, pending exhaustion. 9 These findings and recommendations are submitted to the United States District Judge 10 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) 11 | days after being served with these findings and recommendations, petitioner may file written 12 || objections with the court. The document should be captioned “Objections to Findings and 13 || Recommendations.” Failure to file objections within the specified time may waive the right to 14 | appeal the District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: September 18, 2023 16 17 18 ORAH BARNES DLB7 UNITED STATES MAGISTRATE JUDGE 19 | s2ec0909-kellystay 20 21 22 23 24 25 26 27 28