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 Ex parte requests are only considered in extraordinary circumstances not generally

encountered in the course of civil litigation. 

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

THOMAS F. RISELEY,

Petitioner, No. CIV S-04-2417 DFL JFM P

vs.

WARDEN, PLEASANT

VALLEY STATE PRISON,

 

Respondent. ORDER

 /

On April 13, 2005, petitioner submitted a response to this court’s March 16, 2005

order directing petitioner to file an amended complaint. Petitioner’s document was not served on

respondent. Petitioner marked his filing “ex parte due to lack of access to law library.” Id. This

response is not properly the subject of an ex parte request. Ordinarily, petitioner’s filing would

not be considered in the absence of proof that the document had been served on all parties to this

action. However, since petitioner's deadline to file an amended petition has now passed and

respondent received electronic notice of petitioner’s filing, the court will consider his response.

Petitioner is cautioned, however, that all documents must be served on parties to this litigation

before they will be considered by this court. See Local Rule 5-135.1 Failure to comply with this

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 In his filing, petitioner asked whether the intentional use of false testimony by the state

would serve to by-pass the requirement that he first exhaust his state court remedies. Petitioner

is advised that the exhaustion requirement is a procedural requirement, not relevant to the merits

of any particular claim. Thus, petitioner is required to exhaust his state court remedies before

pursuing his federal habeas claims herein.

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rule will result in a recommendation that this action be dismissed for petitioner’s failure to

comply with court orders. Petitioner is advised that he may serve a handwritten copy of his filing

on counsel for respondent.

On March 30, 2005, the United States Supreme Court issued an opinion that

affects this case. Rhines v. Weber, _____ U.S. _____, 125 S.Ct. 1528 (March 30, 2005). 

Petitioner is no longer required to file an amended petition raising only exhausted claims. 

Petitioner indicates in his response that he intends to return to state court to exhaust his sixth and

seventh claims for relief.2 However, petitioner must file a motion to stay this action. In that

motion, petitioner must also demonstrate that good cause existed for his failure to exhaust his

sixth and seventh claims at the same time he exhausted his other claims. “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 the district court determines there was good cause for the

petitioner's failure to exhaust his claims first in state court.” Rhines, supra.

On the other hand, petitioner remains free to “delete the unexhausted claims and

to proceed with the exhausted claims if dismissal of the entire petition would unreasonably

impair the petitioner's right to obtain federal relief.” Rhines, quoting Rose v. Lundy, 455 U.S.

509, 520 (plurality opinion) ("[A petitioner] can always amend the petition to delete the

unexhausted claims, rather than returning to state court to exhaust all of his claims"). If

petitioner chooses not to file a motion for stay, he may seek leave of court to delete claims six

and seven and the court will proceed on the claims previously exhausted. 

In addition, petitioner states he has written his state-appointed appeals attorney in

an effort to obtain certain documents needed to pursue exhaustion of claims six and seven, but

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 Petitioner is cautioned that if the motion for stay is granted, time constraints on

exhaustion will be set. "‘District courts should explicitly condition the stay on the prisoner's

pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered

and returning to federal court within a similarly brief interval, normally 30 days after state court

exhaustion is completed.’ And if a petitioner engages in abusive litigation tactics or intentional

delay, the district court should not grant him a stay at all.” Rhines, quoting Zarvela v. Artuz, 254

F.3d 374, 381 (C.A.2 2001).

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counsel has failed to respond. Petitioner also seeks appointment of counsel to handle the

exhaustion of these claims. There currently exists no absolute right to appointment of counsel in

habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18

U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of

justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the

court does not find that the interests of justice would be served by the appointment of counsel at

the present time. Thus, petitioner’s motion for the appointment of counsel will be denied. The

court will direct petitioner’s former attorney, however, to provide petitioner with the documents

needed to exhaust claims six and seven.

In light of these rulings, petitioner’s request for suspension of proceedings is

denied.

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Accordingly, IT IS HEREBY ORDERED that:

1. Within twenty days from the date of this order, petitioner shall file a motion to

stay these proceedings; said motion shall be briefed according to Local Rule 78-230(m);

2. Petitioner’s April 13, 2005 request for appointment of counsel is denied;

3. Within fifteen days from the date of this order, petitioner’s state appellate

attorney, Alan Siraco, is directed to provide petitioner with the documents necessary to exhaust

claims six and seven or to notify this court why such documents cannot be provided. The Clerk

of the Court is directed to serve a copy of this order on Mr. Siraco:

Alan Siraco

Attorney at Law

2777 Yulupa Avenue

Santa Rosa, CA 95405 

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IT IS SO ORDERED.

DATED: April 22, 2005.

/001

rise2417.fb 

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