Anand Jon Alexander v. Kim Holland

Filing 23

ORDER MODIFYING MAGISTRATE JUDGE NAKAZATOS JANUARY 22, 2013 AND MARCH 5, 2013 ORDERS by Judge Dean D. Pregerson: After conducting this review, the Court finds that the Magistrate Judges determination that the original petition oughtto be stricken was neither erroneous nor contrary to law. As a result, the Court overrules Petitioners objections to Magistrate Judge Nakazatos order striking his original petition and accepts that portion of his order.However, as to whether Petitioner has demonstrate d an entitlement to a Rhines stay,the Court finds that Petitioner has demonstrated good cause for his delay in beginning exhaustion of his unexhausted claims such that he is entitled to a Rhines stay. The Court sustains Petitioners objections to Magi strate Judge Nakazatos orders as to the rulings on his entitlement to a Rhines stay. Petitioners motion for a Rhines stay is GRANTED. As a result, the First Amended Petition, containing both exhausted and unexhausted claims, should be the operative petition. (lc)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANAND JON ALEXANDER,

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Petitioner,

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v.

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KIM HOLLAND,

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Respondent.
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Case No. CV 13-09302 DDP (AN)
ORDER MODIFYING MAGISTRATE JUDGE
NAKAZATO’S JANUARY 22, 2013 AND
MARCH 5, 2013 ORDERS

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The Court has conducted a de novo review of the record,

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including Petitioner’s Objections (Docket Nos. 13, 21) and

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Magistrate Judge Nakazato’s orders ruling on Petitioner’s motion to

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stay and striking Petitioner’s original petition (Docket Nos. 10,

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17.) After conducting this review, the Court finds that the

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Magistrate Judge’s determination that the original petition ought

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to be stricken was neither erroneous nor contrary to law. As a

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result, the Court overrules Petitioner’s objections to Magistrate

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Judge Nakazato’s order striking his original petition and accepts

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that portion of his order.

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However, as to whether Petitioner has demonstrated an
entitlement to a Rhines stay, the Court finds that Petitioner has

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demonstrated good cause for his delay in beginning exhaustion of

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his unexhausted claims such that he is entitled to a Rhines stay.

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Petitioner claims he was forced to retain new counsel in July 2013

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after discovering that his appellate counsel had been negligent.

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Given the voluminous trial record in this case, Petitioner’s need

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to hire new counsel in light of his prior counsel’s alleged

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failings, prior counsel’s delay in handing over relevant documents,

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and new counsel’s lack of familiarity with the case at the time he

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was hired, the Court finds that five months between new counsel’s

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hire and the filing of both state and federal habeas petitions is

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reasonable. This length of time does not suggest either that new

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counsel has been less than diligent or that the delay is motivated

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by an improper purpose. Therefore, the Court sustains Petitioner’s

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objections to Magistrate Judge Nakazato’s orders as to the rulings

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on his entitlement to a Rhines stay. Petitioner’s motion for a

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Rhines stay is GRANTED. As a result, the First Amended Petition,

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containing both exhausted and unexhausted claims, should be the

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operative petition.

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IT IS SO ORDERED.

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Dated: November 19, 2014
DEAN D. PREGERSON
United States District Judge

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