Valdez v. Boe, CASE NO. 3:18-cv-05369-BHS-JRC

SAMUEL F. VALDEZ, Petitioner, v. JERI BOE, Respondent.

CASE NO. 3:18-cv-05369-BHS-JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

July 20, 2018

ORDER DENYING MOTION FOR STAY AND ABEYANCE

The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. §§ 636 (b)(a)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.

Petitioner Samuel F. Valdez initially filed this petition in May of 2018. Dkt. 1. After the Court directed service on respondent (Dkt. 5), but before respondent filed a response, plaintiff filed a motion for a stay and abeyance (Dkt. 7). He states he has now filed a timely pleading in the state courts to exhaust an unidentified number of unexhausted grounds, and requests that the Court stay his case until he has fully exhausted those grounds. Id. Respondent opposes the stay, stating that although petitioner has filed additional pleadings with the state courts, it is unclear whether any of petitioner's claims in his habeas petition are actually unexhausted. Dkt. 8. Respondent requests that the Court deny petitioner's motion without prejudice, allowing respondent to respond to the habeas petition and submit the relevant state court records before determining whether any of petitioner's habeas grounds are unexhausted. Id.

A state prisoner seeking habeas corpus relief in federal court must exhaust available state relief prior to filing a petition in federal court. See 28 U.S.C. § 2254. Claims for relief that have not been exhausted in state court are not cognizable in a federal habeas corpus petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). However, exhaustion of state court remedies is an affirmative defense that may be expressly waived by the State. 28 U.S.C. § 2254(b)(3); Libby v. Neven, 580 Fed. App'x 560, 564 (9th Cir. 2014); see also Razo v. Thomas, 700 F. Supp. 2d 1252, 1262-63 (D. Hawaii 2010) (citing Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003); Franklin v. Johnson, 290 F.3d 1223, 1239 (9th Cir. 2002)). When a petitioner has submitted a mixed petition - a petition with both exhausted and unexhausted grounds - the district court may generally exercise one of three options: (1) dismiss the mixed petition without prejudice; (2) stay the mixed petition to allow the petitioner to present his unexhausted grounds to the state court; or (3) allow the petitioner to withdraw the unexhausted grounds and proceed with the remaining grounds. See Rhines v. Weber, 544 U.S. 269, at 274-79 (2005).

Here, petitioner has submitted five grounds for habeas relief, but has not identified which grounds are unexhausted in his motion to stay. Respondent has not yet filed a response raising exhaustion as a defense, and the Court has not yet received the relevant state court records to determine which grounds petitioner has exhausted and which grounds he has not. Further, it is possible that, even if petitioner's habeas grounds are unexhausted, the State may waive theexhaustion defense. Even though petitioner filed a motion pursuant to Washington Criminal Rule 7.8 with the state court, seeking relief...