Opinion
No. 2:15-cv-2461 AC P
01-16-2019
JOHN ALAN PARVIN, Petitioner, v. JAMES ROBERTSON, Acting Warden, Pelican Bay State Prison, Respondent.
ORDER
Petitioner is a state prisoner proceeding pro se and in forma pauperis with a fully briefed petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner subsequently filed two motions to stay and abey this action under King v. Ryan, 564 F. 3d 1133 (9th Cir. 2009). ECF Nos. 21, 22. The proposed amended petition filed in relation to these motions is incomplete - it ends at page "22 of 30." See ECF No. 23. Moreover, petitioner's very short motions fail to identify the claim(s) that petitioner seeks to exhaust in the state courts. See ECF Nos. 21-2. One of petitioner's motions states that the claim(s) he is attempting to exhaust is/are "pending in [the] Third Appellate District C086643." ECF No. 22 at 1. Review of the docket in that case indicates that it was decided on December 21, 2018. It thus appears that the time for seeking review in the California Supreme Court has not yet expired. See Rules 8.264 & 8.500, California Rules of Court.
This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). --------
This court construes petitioner's motion under King as a request to proceed with a "Kelly stay." Petitioner is informed of the following requirements for pursing such request. In King, the Ninth Circuit Court of Appeals described the "Kelly procedure" as a three-step process, as follows:
(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). Significantly, "the Kelly procedure . . . is not premised upon a showing of good cause." King, 564 F.3d at 1140. Cf. Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (a stay under Rhines is appropriate only when, inter alia, petitioner has demonstrated good cause for failing to previously exhaust her claims in the state courts). However, "[a] petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition once he has exhausted them only if those claims are determined to be timely" under AEDPA's statute of limitations. Id. at 1140-41. Thus the Kelly procedure, in contrast to the procedure approved in Rhines, does not protect a petitioner's unexhausted claims from expiring during a stay. King, 564 F.3d at 1140-41; see also Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll AEDPA's statute of limitations). "[T]he Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner's unexhausted claims from untimeliness in the interim." King, 564 F.3d at 1141.
Under Kelly, if a newly exhausted claim is time-barred, it may be added in an amended petition only if it "relates back" to petitioner's original exhausted claims. A new claim does not "relate back" to the original petition simply because it arises from "the same trial, conviction, or sentence." Mayle v. Felix, 545 U.S. 644, 662-64 (2005). Rather, the new claim must be of the same "time and type" as the original exhausted claims, and share a "common core of operative facts" with those claims. Id. at 659. "A Kelly stay may be denied where the petitioner's new claims are deemed to be untimely and do not relate back to exhausted claims," that is, if "granting such a stay to permit exhaustion . . . would be futile." Spivey v. Gipson, 2013 WL 4517896, *9, 18 (E.D. Cal. 2013) (citing King, 564 F.3d at 1141-43). "If amendment is futile, a stay is inappropriate." Figueroa v. Lea, 2014 WL 1028500, * 5 (S.D. Cal. 2014) (citing Haskins v. Schriro, 2009 WL 3241836, *3 (D. Ariz. 2009).
Due to the lack of clarity in petitioner's motions, including the identity of petitioner's exhausted and unexhausted claims, and in light of petitioner's incomplete proposed amended petition, IT IS HEREBY ORDERED that:
1. Petitioner's motions to stay this action, ECF Nos. 21 and 22, are DENIED without prejudice;////
2. The First Amended Petition at ECF No. 23 is hereby STRICKEN;
3. If petitioner still seeks a stay of this action, he shall, within thirty (30) days after the filing date of this order, file and serve a motion to stay under Kelly. Such a motion must clearly identify petitioner's unexhausted claims, and must be accompanied by a "Proposed Amended Petition" pursuant to 28 U.S.C. § 2254;
4. If petitioner timely files a new motion to stay this action, respondent shall, within twenty-one (21) days thereafter, file and serve a response to the motion;
5. Petitioner may file and serve a reply to respondent's response within fourteen (14) days after service of the response;
6. The Clerk of Court is directed to (1) substitute James Robertson, Warden of Pelican Bay State Prison, as respondent; and (2) send petitioner, together with a copy of this
order, a blank copy of the form used by prisoners in this district for pursuing a habeas corpus action under 28 U.S.C. § 2254.
IT IS SO ORDERED. DATED: January 16, 2019
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE