1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRYSTAL WANDICK, Case No. 1:20-cv-00745-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITION

SHOULD NOT BE DISMISSED FOR

13 v. FAILURE TO EXHAUST CLAIMS 14 CENTRAL CALIFORNIA WOMEN’S RESPONSE DUE IN 30 DAYS

FACILITY,

15 ECF No. 1 Respondent. 16

17 18 Petitioner Krystal Wandick, a state prisoner without counsel, seeks a writ of habeas corpus 19 under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review under Rule 20 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must dismiss a 21 habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See Valdez v. 22 Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th 23 Cir. 1998). Courts have “an active role in summarily disposing of facially defective habeas 24 petitions” under Rule 4. Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). 25 Petitioner seeks relief from her convictions of voluntary manslaughter and assault with a firearm. 26 See ECF No. 1 at 1. Because it appears that petitioner has failed to exhaust some of her claims at 27 28 1 the state level, we will order her to show cause why her petition should not be dismissed for 2 failure to exhaust her claims. 3 Discussion 4 A petitioner in state custody proceeding with a petition for a writ of habeas corpus must 5 exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on 6 comity and gives the state court the initial opportunity to correct the its alleged constitutional 7 deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 8 518 (1982). A petitioner can satisfy the exhaustion requirement by providing the highest state 9 court with a full and fair opportunity to consider each claim before presenting it to the federal 10 court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 11 365 (1995). 12 Here, the California Court of Appeal affirmed petitioner’s conviction on direct appeal on 13 November 5, 2019 and the California State Supreme Court denied review on January 15, 2020. 14 ECF No. 1 at 2-3. Petitioner raised one claim for relief in her direct appeal: that the evidence at 15 trial was insufficient to support her conviction. See id. Petitioner did not seek any state-level 16 habeas relief. In the instant petition, she now asserts four grounds for relief: that (1) the trial 17 court violated her constitutional rights and that her counsel was ineffective; (2) there was 18 insufficient evidence to support her conviction;1 (3) two of the witnesses’ trial testimony were not 19 credible due to their criminal records; and (4) one of the witnesses lied to the police. Id. at 5-11. 20 Petitioner states that she has not exhausted these claims before the state courts. Id. Accordingly, 21 it appears that only the second claim was exhausted at the state level and petitioner’s first, third, 22 and fourth claims are not exhausted. 23 When a habeas petition presents both exhausted and unexhausted claims, as appears to be 24 the case here, the petition is considered “mixed.” See Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 25 2017). Generally, “[f]ederal courts must dismiss habeas petitions that contain both exhausted and 26

27 1 Petitioner claims that a shooter was never identified. ECF No. 1 at 7. The court will construe this claim as a challenge to the sufficiency of the evidence presented at trial and therefore 28 consider this claim exhausted in the state courts. 1 unexhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 (1982). However, a petitioner may avoid 2 dismissal through seeking a stay and abeyance of her petition. See Butler v. Long, 752 F.3d 1177, 3 1180 (9th Cir. 2014). The purpose of a stay and abeyance is to give a petitioner the opportunity 4 to exhaust her claims in state court before presenting them in federal court. See Dixon, 847 F.3d 5 at 718-20. In this circuit, two procedures for staying a petition may be available while a 6 petitioner exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005); 7 Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). 8 Under Rhines, a stay and abeyance is available for mixed petitions where a petitioner can 9 show good cause for her failure to exhaust her claims in state court, that her claims are not plainly 10 meritless, and that she has not engaged in abusive litigation tactics. See Rhines, 544 U.S. at 278. 11 Upon this showing, the petition may be stayed while petitioner exhausts her claims at the state 12 level. Once a petitioner has exhausted her claims, she may return to federal court with her fully- 13 exhausted petition. If a petitioner desires a stay under Rhines, she must demonstrate that she is 14 entitled to a Rhines stay in her response this order. 15 Unlike a Rhines stay, a Kelly stay does not require a showing of good cause for delay. See 16 King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). Under Kelly, a case moves through three 17 stages: first, the petitioner amends her petition to delete any unexhausted claims; second, the 18 court, in its discretion, stays the amended, fully-exhausted petition, and holds it in abeyance while 19 the petitioner has the opportunity to proceed to state court to exhaust the deleted claims; and third, 20 once the deleted claims have been exhausted in state court, the petitioner may return to federal 21 court and amend her federal petition, adding the newly-exhausted claims. See Kelly, 315 F.3d at 22 1140-41. 23 However, petitioner is forewarned that under Kelly she will only be able to amend her 24 petition with her newly exhausted claims if those claims are timely when amendment is sought. 25 See King, 564 F.3d at 1140-41. Unlike filing an application for state habeas relief, filing a federal 26 habeas claim does not toll AEDPA’s statute of limitations. See Duncan v. Walker, 533 U.S. 167, 27 181 (2001). To be timely, her claims must either (1) meet AEDPA’s statute of limitations 28 wOAOe UVM EE RT MMU POR EE AY Tt

1 || requirements, see 28 U.S.C. § 2244(d) or (2) “relate back” to claims contained in the original 2 | petition that were exhausted at the time of filing. See King, 564 F.3d at 1143; Mayle v. Felix, 545 3 | U.S. 644, 664 (2005). A claim that simply arises from “the same trial, conviction, or sentence” 4 | does not necessarily relate back to the initial claims. See Mayle, 545 at U.S. 659. To “relate 5 | back,” the new claim must share a “common core of operative facts” with the claims in the 6 | pending petition. /d. If petitioner wishes to proceed with a stay under Kelly, she must notify us 7 | of her intention in her response to this order. 8 Alternatively, petitioner may proceed with her exhausted claim only. If this is petitioner’s 9 | intention, she is directed to notify the court in her response to this order. 10 | Order 11 Within thirty days of service of this order, petitioner must show cause why her petition 12 | should not be dismissed for failure to exhaust her claims. Petitioner should notify the court 13 | whether she wishes to: (1) seek a stay and abeyance under Rhines, which will require her to show, 14 | inter alia, good cause for her delay in exhaustion; (2) proceed with a stay under the Kelly 15 | procedure; or (3) proceed with her exhausted claim only. 16 7 IT IS SO ORDERED. 18 ( Caan Dated: _ June 2, 2020 19 UNI STATES MAGISTRATE JUDGE 20 21 | No. 206. 22 23 24 25 26 27 || * Generally, federal habeas claims are timely when filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking 28 | such review.” 28 U.S.C. § 2244(d)(1)(A).