Marcell J. Howard v. Warren L. Montgomery

Filing 90

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE by Judge Monica Ramirez Almadani for Report and Recommendation (Issued), 87 , NOTICE OF MOTION AND MOTION for Order for Granting Stay 80 It is ordered that (1) the Report and Recommendation of the Magistrate Judge is accepted and adopted; and (2) Petitioner's Motion for a Stay of his Federal Writ of Habeas Corpus (ECF No. 80) is denied. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MARCELL J. HOWARD,

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Petitioner,
v.
WARREN L. MONTGOMERY,
Warden,

Case No. 2:18-cv-01207-MRA (MAA)
ORDER ACCEPTING FINDINGS
AND RECOMMENDATIONS OF
UNITED STATES MAGISTRATE
JUDGE

Respondent.

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Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, the records

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on file, and the Report and Recommendation (“Report”) of the United States

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Magistrate Judge. Further, the Court has engaged in a de novo review of those

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portions of the Report to which objections have been made.

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The Report recommends denial of Petitioner’s second request to stay these

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proceedings while he pursues potential avenues for relief in the state courts. (ECF

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No. 87.) As stated below, Petitioner’s objections to the Report do not warrant a

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change to the Magistrate Judge’s findings or recommendation.

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Petitioner objects that the Court should stay the case while Petitioner returns
to the state court at the state court’s own invitation. (ECF No. 88 at 2.) The

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purported invitation was the California Supreme Court’s denial of Petitioner’s state

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habeas petition “without prejudice to any relief to which petitioner might be entitled

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after this court decides People v. Mumin, S271049.” (ECF No. 49-6.) This

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objection fails to address the Report’s finding that Petitioner concedes that he

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“hasn’t raised any Mumin claims, and isn’t going to.” (ECF No. 87 (citing ECF

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No. 85 at 2).)

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Petitioner objects that the Report failed to mention Curiel v. Miller, 830 F.3d

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864 (9th Cir. 2016) (en banc). (ECF No. 88 at 2.) In Curiel, the Ninth Circuit

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recognized that, in California, “[a] dismissal without prejudice for failure to plead

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with specificity invites a refiling of the habeas petition[.]” Curiel, 830 F.3d at 870-

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71. This objection is unfounded because the Report did substantively address

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Petitioner’s basic argument that he was “invited” to refile in state court, by

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concluding that “[d]espite the fact the state supreme court left open the possibility

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that Petitioner could seek further relief following its decision in Mumin, that did not

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cause the court’s decision in Petitioner’s case to be less than final.” (ECF No. 87

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(collecting supporting cases).)

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Petitioner objects that a stay is supported because further state court

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proceedings might “bear in some way” on these proceedings in at least three ways:

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“mooting these proceedings; resetting the AEDPA limitations period; or altering the

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standard of review.” (ECF No. 88 at 2.) This objection is entirely speculative.

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Petitioner has not identified any unexhausted claim that might “bear in some way”

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on these proceedings. Cf. Mediterranean Enterprises, Inc. v. Ssanyong Corp., 708

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F.2d 1458, 1465 (9th Cir. 1983) (holding that a stay pending arbitration was proper

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where the arbitrator “might well decide issues which bear in some way on the

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court’s ultimate disposition” of claims that were actually raised in the Complaint).

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Petitioner objects that this case presents an “unusual situation” where the

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California Supreme Court invited Petitioner to return to state court. (ECF No. 88 at

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3.) This objection, however, does not undermine the Report’s conclusion that, for
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purposes of this federal habeas action, the California Supreme Court’s denial of his

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habeas petition nonetheless was final and that his claims are exhausted. (ECF No.

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87 at 5-6.)

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Finally, Petitioner objects that, even though this case has been pending since

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2018, it would be “perverse” to treat it as a reason to deny his stay. (ECF No. 88 at

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3.) To the contrary, given how long this case has been pending, the Magistrate

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Judge properly concluded it would be improper to grant “an indefinite stay for

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speculative investigative purposes.” (ECF No. 87 at 8.) See also Rich v. Calderon,

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187 F.3d 1064, 1067 (9th Cir. 1999) (“[Habeas] was never meant to be a fishing

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expedition for habeas petitioners to ‘explore their case in search of its existence.’”)

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(quoting Calderon v. U.S.D.C. (Nicolaus), 98 F.3d 1102, 1106 (9th Cir. 1996)).

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In sum, Petitioner’s objections are overruled.
ORDER

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It is ordered that (1) the Report and Recommendation of the Magistrate Judge

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is accepted and adopted; and (2) Petitioner’s Motion for a Stay of his Federal Writ

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of Habeas Corpus (ECF No. 80) is denied.

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DATED: May 13, 2024

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___________________________________
MONICA RAMIREZ ALMADANI
UNITED STATES DISTRICT JUDGE

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