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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WILLIAM A. ROMERO, No. CIV S-04-0459-MCE-CMK-P

Petitioner, 

vs. FINDINGS AND RECOMMENDATIONS

D. RUNNELS,

Respondent.

 /

Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On June 13, 2005, petitioner filed a motion to stay

the instant federal petition and hold proceedings in abeyance (“stay-and-abeyance”) pending

exhaustion in state court of a claim of actual innocence based on newly discovered DNA

evidence. Respondents filed an opposition on July 1, 2005. Petitioner filed a reply on August 2,

2005. Petitioner did not, however, include proper proof of service with his reply. On August 11,

2005, petitioner was directed to re-serve his reply. He did so on August 25, 2005, and filed proof

of such re-service on August 30, 2005. On December 7, 2005, the undersigned issued an order

denying petitioner’s stay-and-abeyance motion. The court now sua sponte revisits the question

of whether a stay-and-abeyance order should issue in this case.

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2

There are two approaches for analyzing a stay-and-abeyance motion, depending

on whether the petition on file is mixed or fully exhausted. See Jackson v. Roe, 425 F.3d 654,

661 (9th Cir. 2005). If the petitioner seeks a stay-and-abeyance order as to a mixed petition

containing both exhausted and unexhausted claims, the request is analyzed under the standard

announced by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). See Jackson, 425

F.3d at 661. If, however, the petition currently on file is fully exhausted, and what petitioner

seeks is a stay-and-abeyance order to exhaust claims not raised in the current federal petition, the

approach set out in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), applies. See Jackson, 425

F.3d at 661. 

Under Rhines, as a threshold condition for this court to exercise its discretion to

issue a stay-and-abeyance order, the court must determine that there was good cause for failing to

exhaust his claims before raising them in this case. See Rhines v. Weber, 544 U.S. at 277. If

there is good cause for petitioner’s failure to exhaust, it may be an abuse of discretion to deny

stay and abeyance where there is no indication of intentional dilatory litigation tactics. See id. at

278. Stay and abeyance is not appropriate where the unexhausted claim is plainly meritless. See

id. at 277.

Under Kelly, the district court is required to “. . . consider the option of holding

the exhausted petition in abeyance so that the petitioner would be able to exhaust his claims in

state court before attempting to amend his federal petition to include the newly exhausted

claims.” Jackson, 425 F.3d at 661 (citing Kelly, 315 F.3d at 1070). Whether to exercise this

option is within the discretion of the district court. See Kelly, 315 F.3d at 1070. However, the

Ninth Circuit has recognized the “. . . clear appropriateness of a stay when valid claims would

otherwise be forfeited.” Id. Moreover, a stay under such circumstances promotes comity by

deferring the exercise of federal jurisdiction until after the state court has ruled. See id. 

/ / /

/ / /

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3

In this case, the current petition on file contains only exhausted claims. 

Therefore, Kelly – not Rhines – applies. petitioner seeks to stay proceedings and hold

consideration of his fully exhausted petition in abeyance pending the state court’s determination

of his DNA actual innocence claim. Petitioner’s motion, however, was based on Rhines and did

not discuss Kelly. Similarly, respondent’s opposition focused entirely on the Rhines standard

and did not mention Kelly. Because this court must consider the Kelly option, See 315 F.3d at

1070, the court now does so. 

Under Kelly, the district court would stay proceedings and hold consideration of

the fully exhausted petition in abeyance pending exhaustion in state court of a new claim. See id.

Following exhaustion, the petitioner would then have to return to court and seek leave to amend

the petition to include the newly exhausted claim. See id. If the motion is granted, the amended

petition will be fully exhausted and the district court can then proceed to adjudicate the merits of

all the claims. Under this approach, the parties litigate issues concerning amendment of the

petition – in particular, the issue of relation-back of claims – after the state court has ruled on the

new claim. 

This understandably differs from the Rhines approach, which requires

consideration of issues such as whether petitioner has good cause for failure to exhaust before

coming to federal court and whether petitioner engaged in intentional dilatory litigation tactics. 

When a petitioner files a mixed federal petition – to which Rhines applies – it means that he

knew of the unexhausted claim when he filed but did not first present the claim to the state court. 

In contrast, Kelly applies to situations where the petitioner did not know of the unexhausted

claim at the time he filed his federal petition. Thus, there is no concern over why the petitioner

failed to go to state court first. Because the concern does exist in mixed petition scenarios,

Rhines requires the threshold good cause determination and precludes stay-and abeyance for

intentionally dilatory petitioners. See 544 U.S. at 277. 

/ / /

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1 Because, under Kelly, the question of whether leave to amend the petition is saved

for a later day following exhaustion, petitioner’s motion for leave to amend the petition (Doc. 29)

was filed prematurely. Therefore, the order denying leave to amend (Doc. 34) should be vacated

and petitioner’s motion should be denied without prejudice to renewal following exhaustion in

state court. Finally, petitioner’s motions for reconsideration of the order denying leave to amend

(Docs. 38 & 41) should be denied as moot. 

4

In this case, there is no concern over why petitioner did not present his actual

innocence claim before filing this federal habeas petition. According to petitioner, DNA

evidence obtained after the petition was filed shows four possible DNA donors and excludes

petitioner. This factual predicate was not known to petitioner when he filed in federal court. In

addition, it is possible that federal review of the new claim could be forfeited if not eventually

included in this petition. Finally, in the interests of comity and litigating all federal issues in one

action, a stay-and-abeyance order would be appropriate to allow the state court to decide the

matter first, and then allow this court to resolve all exhausted claims in one proceeding. 

For these reasons, a stay-and-abeyance order is appropriate in this case.1 

Based on the foregoing, the undersigned recommends that:

1. The December 5, 2005, order (Doc. 23) be vacated;

2. Petitioner’s stay-and-abeyance motion (Doc. 15) be granted based on Kelly

v. Small, 315 F.3d 1063 (9th Cir. 2003);

3. These proceedings be stayed and consideration of the instant petition,

containing only exhausted claims, be held in abeyance pending exhaustion in state court of

petitioner’s DNA claim;

4. Petitioner be directed to inform this court in writing of the state court’s

decision, and to file a motion in this court to lift the stay and to amend the petition to include the

newly exhausted claim, within 30 days of the state court’s decision; 

5. The April 6, 2006, order (Doc. 34) be vacated;

6. Petitioner’s motion for leave to amend (Doc. 29) be denied without

prejudice as premature; and

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7. Petitioner’s motions for reconsideration (Docs. 38 & 41) be denied as

moot. 

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, any party may file written

objections with the court. The document should be captioned “Objections to Magistrate Judge's

Findings and Recommendations.” Failure to file objections within the specified time may waive

the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: August 22, 2006.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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