Jones v. Davey

Northern District of California, cand-4:2015-cv-01560

ORDER by Judge Haywood S. Gilliam, Jr. DENYING {{8}} REQUEST FOR STAY AND REQUIRING ELECTION BY PETITIONER.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 DAMON L. JONES, 7 Case No. 15-cv-01560-HSG (PR) Petitioner, 8 ORDER DENYING REQUEST FOR v. STAY AND REQUIRING ELECTION 9 BY PETITIONER DAVE DAVEY, Warden, 10 Re: Dkt. No. 8 Respondent. 11 12 Northern District of California United States District Court 13 On April 6, 2015, petitioner Damon L. Jones, an inmate at Corcoran State Prison, filed a 14 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 12, 2015, the Court 15 issued an Order on Initial Review in which it found that Petitioner had filed a mixed petition 16 containing exhausted and unexhausted claims. In the Order, the Court explained to Petitioner that 17 a federal court must dismiss a mixed petition and provided him with an opportunity to amend the 18 petition by withdrawing the unexhausted claims and proceeding only on the exhausted claims, or 19 to dismiss the mixed petition and return to federal court with a new petition once all claims were 20 exhausted. The Court also explained that Petitioner could seek a stay of the petition while he was 21 exhausting his claims in state court. Now before the Court is Petitioner's motion to stay his 22 petition. 23 DISCUSSION 24 The United States Supreme Court has held that a district court may stay mixed habeas 25 petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78 26 (2005). The district court's discretion to stay a mixed petition is circumscribed by AEDPA's 27 stated purposes of reducing delay in the execution of criminal sentences and encouraging 28 petitioners to seek relief in the state courts before filing their claims in federal court. Rhines, 544 1 U.S. at 277. Because the use of a stay and abeyance procedure has the potential to undermine 2 these dual purposes of AEDPA, its use is only appropriate where the district court has first 3 determined that there was good cause for the petitioner's failure to exhaust the claims in state 4 court and that the claims are potentially meritorious. Id. Moreover, where granting a stay, the 5 district court must effectuate the timeliness concerns in AEDPA by placing "reasonable limits on a 6 petitioner's trip to state court and back." Id. at 278. An assertion of good cause turns on whether 7 the petitioner can set forth a reasonable excuse supported by sufficient evidence to justify the 8 failure to exhaust. See Blake v. Baker, 745 F.3d 977, 983-84 (9th Cir. 2014) (reversing denial of 9 stay when petitioner supported his good cause argument with evidence including a 10 neuropsychological and psychological evaluation and many declarations). Good cause for failure 11 to exhaust does not require "extraordinary circumstances." Jackson v. Roe, 425 F.3d 654, 661-62 12 (9th Cir. 2005). But Rhines made it clear that district courts should only stay mixed petitions in Northern District of California United States District Court 13 "limited circumstances." Id. at 661. 14 Here, petitioner has not attempted to show good cause to justify a Rhines stay. Nor is there 15 anything in the record to suggest he could make the requisite showing. As Petitioner has not 16 demonstrated good cause, the Court need not consider the other Rhines factor, i.e., whether the 17 claims are potentially meritorious, and the motion for a stay will be denied. 18 Due to a critical one-year statute of limitations on the filing of federal habeas petitions 19 under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), see 28 U.S.C. 20 § 2244(d), the Court is reluctant to dismiss the mixed petition (and possibly cause a later-filed 21 petition to be time-barred) without giving Petitioner the opportunity to elect whether to proceed 22 with just his exhausted claims, or to try to exhaust the unexhausted claims before having this 23 Court consider all his claims. Therefore, instead of an outright dismissal of the action, the Court 24 will allow Petitioner to choose whether he wants to: 25 (1) dismiss the unexhausted claims and go forward in this action with only the 26 exhausted claims, or 27 (2) dismiss this action and return to state court to exhaust all claims before filing a 28 new federal petition presenting all of his claims. 2 1 If he chooses option (1) and goes forward with only his exhausted claims, he may face 2 dismissal of any later-filed petition. See 28 U.S.C. § 2244(b). If he chooses option (2), dismissing 3 this action and returning to state court to exhaust all claims before filing a new federal petition, his 4 new federal petition might be rejected as time-barred. See 28 U.S.C. § 2244(d). 5 CONCLUSION 6 For the foregoing reasons, Petitioner's motion for a stay is DENIED. Petitioner must serve 7 and file within 28 days of the filing date of this Order, a notice in which he states whether he 8 elects to (1) dismiss the unexhausted claims and go forward in this action with only the remaining 9 claims, or (2) dismiss this action and return to state court to exhaust all of his claims before 10 returning to federal court to present all of his claims in a new petition. If he chooses either Option 11 (1) or Option (2), his filing need not be a long document; it is sufficient if he files a one-page 12 document entitled "Election By Petitioner" and states simply: "Petitioner elects to proceed under Northern District of California United States District Court 13 Option ___ provided in the Court's Order Denying Request for Stay and Requiring Election by 14 Petitioner." Petitioner would have to insert a number in place of the blank space to indicate which 15 of the two options he chooses. If Petitioner does not choose one of the two options by the 16 deadline, the Court will dismiss the action. 17 This Order terminates Docket No. 8. 18 IT IS SO ORDERED. 19 Dated: 10/1/2015 20 ______________________________________ HAYWOOD S. GILLIAM, JR. 21 United States District Judge 22 23 24 25 26 27 28 3