Free Other Notice - District Court of Arizona - Arizona

1 Jon M. Sands
Federal Public Defender
2 Michael L. Burke _
Assrstant Federal Public De_fender
3 850 West Adams Street, Suite 201
Phoenix, Arizona 85007
4 mtehael [email protected]‘¤
Ari2ona_Bar No. 0131273
5 602.382.2816 _ _ _
6 602.889.3960 facsimile
7 Counsel for Petitioner
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF ARIZONA
IO Robert Allen Poyson, No. CIV 04-534-PHX—JAT
1 l Petitioner, Notice ofStI$pplemental Authority:
12 JCIC/{SO/Z V. OG
v.
13 _ DEATII PENALTY CASE
Dora B. Schriro, et. al.,
14 Respondents.
5 Robert Allen Poyson’s ("Pet1t1oner") Petition for a Writ of llabeas Corpus
l .... . . . . . .
6 under 28 U.S.C. § 22541s pending before this Court. Petitioner wrshes to apprise this
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7 Court of new legal precedent that 1S relevant to his petition. ln the event that this
I 8 Court finds some of his claims unexhausted and not proeedurally defaulted, Petitioner
19 has asked this Court to stay his petition, holding it in abeyance so that he can return
20 to the Arizona courts to exhaust those claims. The Ninth Circuit has recently decided
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I a case that bears on this request.
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lf a habeas petitioner demonstrates "good cause" for tarlmg to exhaust his
2 claims, the district court must stay the habeas proceedings, holdmg them in abeyance
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so that the petitroner may return to state court to exhaust the unexhausted claims.
2 .
5 Rhirzes v. Weber, 125 S. Ct. 1528, 1535 (2005). In Jackson v. Roe, No. 02—562l() (9th
6 Cir. Sept. 23, 2005), the Ninth Circuit ruled that a district court abuses its discretion
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1 when it does not allow a petitioner to use the stay-and—abeyancc procedure in the face
2 of good cause shown for 1`ailure to exhaust. Id., slip op. at 13663-64.
3 In Jockson, the district court had determined that the petitioner had tiled a
4 mixed petition. It did not rule on whether the unexhausted claim was proeedurally
5 defaulted, because it believed that under Rose v. Lundy, 455 U.S. 509 (_l982), it was
6 required to dismiss the mixed petition. lt felt that a stay was not appropriate because
7 there were "no extraordinary circumstances that wouldwarrant a stay." Jackson, slip
8 op. at 13654. The petitioner then asked for a stay to exhaust the uncxhaustcd claim,
9 but the district court denied the request. The Ninth Circuit concluded that, under
10 Rhines, the district court had improperly refused to grant a stay, and it remanded the
1 1 case for a determination under the R/zines "good cause" standard.
12 Under Jackson, then, a district court has no discretion not to grant a stay ifit
13 determines that there is "good cause" for failing to exhaust a claim included in a
14 mixed petition. This Court has not yet ruled on the procedural status ofPetitioner’s
15 claims. ln his traverse, Petitioner demonstrated good cause 1`or failing to exhaust
16 claims. Accordingly, ifthis Court determines that any ofPetitioner’s claims are not
17 exhausted, it must stay the proceedings, holding the casein abeyance until Petitioner
18 can return from state court having exhausted those claims.
19 Respectfully submitted this 27th day of September, 2005.
20
Jon M. Sands
21 Federal Public Defender
Michael L. Burke
22
23 s/ Michael L. Burke

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l Certificate of Service
2 1 hereby certify that on September 27, 2005, I electronically transmitted the
3 attached document to the Clerl<’s Office Using the CM/ECP System for filing and
4 transmittal of a Notice of Electronic Filing to the following CM/EGF registrants:
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6 hgigahlsgltomey General
7 Attorney General s Office
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Case 2:04-cv-00534-NVW

Document 42

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Case 2:04-cv-00534-NVW

Document 42

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Case 2:04-cv-00534-NVW

Document 42

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