YVONNE GONZALEZ ROGERS, District Judge.
Petitioner, Fredrick D. Kilmer, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The following is a summary of the claims raised in the instant petition, in which Petitioner raises eight claims, some of which include subclaims:
(Pet., Attach. B at B1-B46 (footnote added).)
On January 31, 2012, the Court issued an Order to Show Cause directing Respondent to answer the instant petition.
In lieu of filing an answer, Respondent moved to dismiss the petition as a mixed petition under Rose v. Lundy, 455 U.S. 509, 510 (1982).
In an Order dated July 10, 2009, the Court determined the petition was subject to dismissal as a mixed petition, i.e., it contained both exhausted claims — federal petition Claims 6 (subclaim), 7, 8 — and unexhausted claims. Consequently, the Court granted Respondent's motion to dismiss, informed Petitioner of the deficiency, and provided him an opportunity to amend the mixed petition by striking the unexhausted claims and proceeding with only his exhausted clams, or, alternatively, requesting a stay of the petition for the purpose of exhausting his unexhausted claims in state court.
Before the Court is Petitioner's request to stay the petition in order for him to return to state court and exhaust state remedies for some of his unexhausted claims. (Docket No. 22.) Petitioner asks for a stay under two different procedures: (1) A stay under Rhines v. Weber, 544 U.S. 269 (2005), which must be supported by a showing of "good cause," and (2) a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), which does not require a showing of good cause, but requires Petitioner to amend his petition to delete the unexhausted claims, and then later amend the petition again and add the claims back into the petition once they are exhausted. Respondent opposes a Rhines stay, and argues that Petitioner fails to demonstrate good cause. Thus, Respondent argues that a stay under the procedures outlined in Kelly should be the only avenue available to Petitioner.
On July 5, 2013, Petitioner filed another motion entitled, "Request for a Ruling on the Motion to Stay & Abeyance Request, and Notice of Respondent[`]s Obstructive Actions Towards Petitioner[`]s Appeal Process." (Docket No. 25.)
For the reasons outlined below, the Court DENIES in part and GRANTS in part Petitioner's request to stay these proceedings and addresses his other pending requests. The Court also issues certain instructions to Petitioner and to the Clerk of the Court, as explained below.
A district court may stay a mixed habeas petition to allow the petitioner to exhaust state court remedies as to those claims that have not yet been presented to the state's highest court. See Rhines, 544 U.S. at 277-78. In Rhines, the Supreme Court discussed the stay-and-abeyance procedure, explaining that a stay and abeyance "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court," the claims are not meritless, and there are no intentionally dilatory litigation tactics by the petitioner. Id. If the stay is granted, the petitioner's newly-exhausted claims will be not barred by the statute of limitations, because those claims remain pending in federal court. King v. Ryan, 564 F.3d 1133, 1139, 1140. (9th Cir. 2009).
By contrast, where a petitioner deletes his unexhausted claims and seeks a stay of a fully-exhausted petition while he returns to state court to exhaust the unexhausted claims, no showing of good cause is required to stay the petition. Id. Once the claims are exhausted, however, the petitioner must amend his petition to add the newly-exhausted claims; importantly, such amendment must take place within the one-year statute of limitation set forth at 28 U.S.C. § 2244(d)(1), or the newly-exhausted claims will be dismissed as untimely. Id. at 1140-41.
Here, Petitioner first argues he is entitled to a stay of his mixed petition based on a showing of good cause under Rhines. Rhines did not describe the criteria for determining whether good cause for failure to exhaust exists. "Good cause" does not equate with "extraordinary circumstances," as the latter is a more difficult showing to make. See Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). However, the court
Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). In Wooten, the Ninth Circuit found that the petitioner had not shown good cause for the failure to first exhaust where the petitioner contended that he was "`under the impression'" that his counsel had included all the issues in his petition for review. Id. Accepting this excuse would make stay-and-abeyance orders routine because almost any petitioner could make this argument — and making stay-and-abeyance orders routine would run afoul of Rhines' instruction that stays only be granted in limited circumstances. Id.
Here, Petitioner offers several reasons in an effort to show good cause for failing to exhaust his unexhausted claims. First, Petitioner states that the "state courts refusing to follow Cal. law for an OSC, and by the courts refusing to examine or address [his] writ twice, was beyond [his] control. . . ." (Mot. to Stay at 4.) Second, Petitioner claims that he "had no control of the arguments being made by appellate counsel and was required to accept appellate counsel[`]s argument as being true and in accordance with the law for the furtherance of his appeal into Federal Court." (Id. at 3-4.) Third, Petitioner claims that "he can show good cause for relief from a procedural default when the default is due to ineffective assistance of counsel. . . ." (Id. at 4.)
In response to Petitioner's first reason, Respondent asserts that Petitioner claiming that California courts refused to follow California law in addressing his collateral review petition does not suffice to show good cause. This Court agrees. It is conclusively presumed that the state courts correctly interpreted and applied their own law. Lopez v. Schriro, 491 F.3d 1029, 1043 (9th Cir. 2007) (noting "state courts are presumed to know and correctly apply state law); Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) (noting that in reviewing petition, "a federal court is bound by the state court's interpretations of state law); see Bell v. Cone, 543 U.S. 447, 455 (2005) ("We do not think that a federal court can presume so lightly that a state court failed to apply its own law.").
The next two reasons relating to appellate counsel's alleged ineffectiveness or failure to present his unexhausted claims on appeal also is a common occurrence. Virtually all petitioners who have unexhausted claims have this same circumstance: if counsel presented the claim in the petition for review, it would have been exhausted. Circumstances such as these that exist for the vast majority of petitioners do not show good cause for excusing non-exhaustion. As explained above, allowing a stay for any of them would be contrary to Rhines' instruction for district courts to issue stays only in limited circumstances. See Wooten, 540 F.3d at 1024.
Having considered the reasons offered by Petitioner individually and collectively, the Court concludes that he has not shown good cause for his failure to exhaust state court remedies for his unexhausted claims. The motion for a stay and abeyance under Rhines is DENIED.
In the alternative, Petitioner seeks as stay pursuant to the procedure outlined in Kelly, and Respondent does not oppose such a stay. Thus, Petitioner seeks to delete his unexhausted claims, file a fully-exhausted petition, and then have the Court stay the fully-exhausted petition while he returns to state court. In light of Petitioner's express request (and Respondent's lack of opposition) to delete his unexhausted claims and stay the fully-exhausted petition, the Court, in the interest of expediency, will not require Petitioner to file an amended petition containing only exhausted claims together with a renewed request for a stay. Instead, the Court will retain the following exhausted claims: his claim of insufficient evidence to support his conviction (subclaim to federal petition Claim 6); his due process sentencing claim (federal petition Claim 7); and his Eighth Amendment cruel and unusual punishment claim (federal petition Claim 8). The Court will strike all the other claims, which have been deemed unexhausted (pursuant to the Court's March 19, 2013 Order Granting Respondent's Motion to Dismiss) from the petition. Therefore, the motion to stay the fully-exhausted petition under Kelly is GRANTED.
Nothing further will take place in this action until Petitioner exhausts the unexhausted claims, and moves to reopen this action, lift the Court's stay, and amend his petition to add the newly-exhausted claims, as directed below.
The Court notes that Petitioner also requests the Court "confirm the total days left [he] has to refile his exhausted claims in this Federal Court." (Mot. to Stay at 6.) However, the Court DENIES this request because it makes no ruling at this time on the issue of the timeliness of any future federal petition.
In Petitioner's "Request for a Ruling on the Motion to Stay & Abeyance Request, and Notice of Respondent[`]s Obstructive Actions Towards Petitioner[`]s Appeal Process," he requests the following:
(Pet'r July 5, 2013 Mot. at 4-5.)
First, Petitioner's request for a docket sheet is GRANTED.
Next, Petitioner's second request is construed as a motion for leave to file a request for an update relating to the Court's ruling on any pending motion. Petitioner must understand that the Court is tasked with handling numerous cases on a daily basis, and he should be aware that in the instant matter the Court will rule on any motion filed by either party in due course. The Court notes, however, that throughout the course of these proceedings, Petitioner has submitted various handwritten pleadings, motions, and letters. The majority of these documents have been submitted at Petitioner's own initiative and not in response to any Court Order or pleading filed by Respondent. Absent extraordinary circumstances, there appears to be no need for Petitioner to file any further update requests relating to any of the Court's rulings because no rulings need to be made until after he has exhausted his state judicial remedies. Therefore, his motion for leave to file a request for an update relating to the Court's ruling on any pending motion is DENIED as unnecessary.
Third, the Court construes Petitioner's discovery request as a motion for leave to conduct discovery. However, a habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery as a matter of ordinary course. See Bracy v. Gramley, 520 U.S. 899, 904 (1997). Rule 6(a) of the Federal Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, provides that a "party shall be entitled to invoke the processes of discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." Good cause for discovery under Rule 6(a) is shown "`where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief. . . .'" Bracy, 520 U.S. at 908-09. At this time, any such discovery requests are premature as Petitioner still needs to exhaust his state judicial remedies. Petitioner's motion for leave to conduct discovery is therefore DENIED as premature.
Fourth, Petitioner requests the Court to direct HDSP prison officials to allow him certain privileges (i.e., access to the HDSP law library), to "adhere to CDCR's Operational Manual," or to transfer him to another prison. (Id. at 5.) This request is DENIED because Petitioner has not shown a sufficient reason for this Court to interfere in the day-to-day operations of the prison. See Turner v. Safley, 482 U.S. 78, 84-86 (1987); Wright v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981) (courts should avoid enmeshing themselves in minutiae of prison operations in name of constitution). Furthermore, because HDSP is not in this judicial district, Petitioner must present any claims regarding his conditions of confinement at that prison in the United States District Court for the Eastern District of California. Finally, the Court notes that it is well-established that prisoners have no constitutional right to be incarcerated in a particular institution. Olim v. Wakinekona, 461 U.S. 238, 244-48 (1983). Therefore, an allegation that prison officials have "wrongfully" denied Petitioner's transfer to another institution cannot form the basis for a § 1983 claim. Id.
For the reasons stated above, the Court hereby orders as follows:
1. Petitioner's motion to stay under Rhines is DENIED; however, his motion to stay the fully-exhausted petition (as explained above) under Kelly is GRANTED. (Docket No. 22.)
These proceedings are hereby STAYED pending Petitioner's exhaustion of his state judicial remedies as to his unexhausted claims. Petitioner must act diligently in exhausting his state judicial remedies, or the stay may be lifted. He must file quarterly reports describing the progress of his state court proceedings, commencing
The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay of this action. Nothing further will take place in this action until Petitioner receives a final decision from the highest state court and, within
2. The Court has addressed Petitioner's July 5, 2013 "Request for a Ruling on the Motion to Stay & Abeyance Request, and Notice of Respondent[`]s Obstructive Actions Towards Petitioner[`]s Appeal Process," and further orders as follows:
a. Petitioner's request for a docket sheet is GRANTED. The Clerk shall mail Petitioner a copy of the docket sheet along with his copy of this Order.
b. Petitioner's motion for leave to file a request for an update relating to the Court's ruling on any pending motion is DENIED as unnecessary.
c. Petitioner's motion for leave to conduct discovery is DENIED as premature.
d. Petitioner's requests for the Court to direct HDSP prison officials to allow him certain privileges (i.e., access to the HDSP law library), to "adhere to CDCR's Operational Manual," and to transfer him to another prison are DENIED. Because HDSP is not in this judicial district, Petitioner must present any claims regarding his conditions of confinement at that prison in the United States District Court for the Eastern District of California.
3. This Order terminates Docket Nos. 22 and 25.
