Gooden v. Pima County Jail et al
Filing
31
ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that the 29 Report and Recommendation is ADOPTED. It is further Ordered that the Pro Se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Doc. 13 ) is DISMISSED without prejudice. Signed by Judge Cindy K Jorgenson on 12/5/2014. (MFR)
1
2
3
4
5
6
IN THE UNITED STATES DISTRICT COURT
7
FOR THE DISTRICT OF ARIZONA
8
9
Dennis Shamar Gooden,
Petitioner,
10
11
ORDER
v.
12
No. CV-13-00909-TUC-CKJ
Pima County Jail, et al.,
13
Defendants.
14
15
16
On October 8, 2014, Magistrate Judge Bernardo P. Velasco issued a Report and
17
Recommendation (Doc. 29) in which he recommended that the Pro Se Petition for Writ
18
of Habeas Corpus Under 28 U.S.C. § 2254 be dismissed without prejudice to Petitioner
19
filing a Petition and action after he has exhausted his state court remedies. The Report
20
and Recommendation notified the parties that they had fourteen days to file any
21
objections. No objections have been filed.
22
The Court has reviewed and considered the Pro Se Petition for Writ of Habeas
23
Corpus Under 28 U.S.C. § 2254; the Answer to the Petition, with exhibits; the Reply and
24
exhibits; and the Report and Recommendation.
25
26
27
28
The Court has also reviewed the Pima County Superior Court file for case number
CR20052741.
As noted in the Report and Recommendation, on June 27, 2013,
Petitioner, acting on his own behalf, filed a “Post Conviction Relief Rule 32” in Pima
County Superior Court. That petition has not been ruled on. In addition, on January 6,
1
2014, Petitioner filed in state court a Second Amended Petition for a Writ of Habeas
2
Corpus by a Person in State Custody.
3
Court record, it is actually a federal form and is designated as a “Petition Under 28
4
U.S.C. § 2254.” In fact, it is the same document that was filed with this Court on
5
December 18, 2013. (Docs. 12, 13.)
6
Court.
Although the petition was docketed in the State
The petition has not been ruled on by the State
7
The Report and Recommendation considered whether “inordinate delay” should
8
excuse the exhaustion requirement in this case, or shift the burden to the state to
9
demonstrate why exhaustion should still be required. See Coe v. Thurman, 922 F.2d 528,
10
530-33 (9th Cir. 1990). However, it appears to have considered delay only as to the
11
Second Amended Petition; the petition filed in June 2013 has also not been ruled on.
12
(Doc. 29 at 5.)
13
As the Report and Recommendation states, if “there is either an absence of
14
available State corrective process or the existence of circumstances rendering such
15
process ineffective to protect the rights of the prisoner,” exhaustion is not required. 28
16
U.S.C. § 2254(b)(1)(B). Excessive delay in the appellate process may render a state
17
corrective process ineffective and thus waive the requirement for exhaustion of remedies
18
at the state level. Coe, 922 F.2d at 530–531. The Report and Recommendation observes
19
that Petitioner did not allege that the State had unduly delayed disposition of his appeal
20
and thus the exhaustion requirement should be excused; in fact he asserts that he has
21
essentially abandoned his state court proceedings by not filing anything in the state
22
appellate courts. (Doc. 29 at 5.) Moreover, he filed no objections to the Report and
23
Recommendation.
24
The Ninth Circuit has stated that there is “no talismanic number of years or
25
months” constituting unacceptable delay. Coe, 922 F.2d at 531. The court found a four-
26
year delay to be “alarming,” Coe, id., but it has also observed that a two-year delay is not
27
“extreme.” Hamilton v. Calderon, 134 F.3d 938, 939 (9th Cir. 2008). This Court finds
28
that a seventeen-month delay is not unusual or unacceptable and does not meet the
-2-
1
threshold requirement of establishing undue delay. See Barker v. Wingo, 407 U.S.514,
2
530 (1972) (“Until there is some delay which is presumptively prejudicial, there is no
3
necessity for inquiry into the other factors that go into the balance.”).
4
Petitioner was released from custody in June 2014. (Doc. 28.)
Moreover,
5
Accordingly, after an independent review, IT IS ORDERED:
6
1.
The Report and Recommendation (Doc. 29) is ADOPTED;
7
2.
The Pro Se Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254
8
9
(Doc. 13) is DISMISSED without prejudice.
Dated this 5th day of December, 2014.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?