United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Bridget S. Bade United States Magistrate Judge
August 20, 2018, Petitioner filed a petition for writ of
habeas corpus pursuant to 28 U.S.C.§ 2254. (Doc. 1.) On
October 25, 2018, he filed a motion to stay this proceeding
while he seeks a writ of certiorari in the United States
Supreme Court. (Doc. 9.) Thus, Petitioner may believe that he
is required to present his claims to the United States
Supreme Court before seeking habeas corpus review in this
Court. As set forth below, Petitioner is not required to
present his claim to the Supreme Court and he has not
established any basis to stay this proceeding. Therefore, the
Court recommends that the motion to stay be denied.
Exhaustion of State Remedies
the federal court may grant habeas corpus relief to a state
prisoner, the prisoner must exhaust remedies available in the
state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan
v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state
remedies, a petitioner must afford the state courts the
opportunity to rule upon the merits of his federal claims by
“fairly presenting” them to the state's
“highest” court in a procedurally appropriate
manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004)
(“[t]o provide the State with the necessary
‘opportunity,' the prisoner must ‘fairly
present' his claim in each appropriate state court . . .
thereby alerting that court to the federal nature of the
claim”); Castille v. Peoples, 489 U.S. 346,
349 (1989) (same). In Arizona, unless a prisoner has been
sentenced to death, the “highest court”
requirement is satisfied if the petitioner has presented his
federal claim to the Arizona Court of Appeals either through
the direct appeal process or post-conviction proceedings.
Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir.
Stay and Abeyance Procedure
Rhines v. Weber, 544 U.S. 269, 277 (2005), a
district court has limited discretion to hold in abeyance a
habeas petition containing both exhausted and unexhausted
claims (a mixed petition) to allow a petitioner to exhaust
his claims while the federal proceedings are stayed.
Rhines, 544 U.S. at 277. A district court also has
the discretion to stay and hold in abeyance a fully
unexhausted petition. Mena v. Long, 813 F.3d 907,
912 (9th Cir. 2016).
a federal habeas petition frustrates AEDPA's
[Anti-Terrorism and Effective Death Penalty Act] objective of
encouraging finality by allowing a petitioner to delay the
resolution of federal proceedings.” Rhines,
544 U.S. at 277. “Because granting a stay
effectively excuses a petitioner's failure to present his
claims first to the state courts, stay and abeyance is only
appropriate when” (1) there is good cause for
petitioner's failure to exhaust his claims first in state
court; (2) the unexhausted claims are potentially
meritorious; and (3) there is no indication that the
petitioner has engaged in intentionally dilatory litigation
tactics. Id. at 277-278.
requests a stay to seek review of “one 14th Amendment
question of law that has gone unanswered” in the United
States Supreme Court. (Doc. 9 at 1.) Petitioner is referring
to the Fourteenth Amendment claim that he raises in Ground
One. (Doc. 1 at 6, Doc. 11.) In Ground One, Petitioner
asserts that his “right to gather evidence under police
authority” was violated. (Doc. 1 at 6; Doc. 11 at 2.)
Petitioner is not required to present his claims to the
Supreme Court to satisfy the exhaustion requirement.
Additionally, assuming Petitioner failed to exhaust Ground
One in state court, he has not shown good cause for his
failure to exhaust that claim or shown that it is potentially
meritorious. See Rhines, 544 U.S. at 277-278.
Therefore, Petitioner has not satisfied the criteria for
staying this § 2254 proceeding.
IT IS RECOMMENDED that Petitioner's
motion to stay (Doc. 9) be DENIED.
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1) of the Federal Rules of Appellate
Procedure should not be filed until entry of the District
Court's judgment. The parties shall have fourteen days
from the date of service of a copy of this recommendation
within which to file specific written objections with the
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
6, 72. The parties have fourteen days within which to file a
response to the objections. Failure to file timely objections
to the Magistrate Judge's Report and Recommendation may