Hayes v. Adams

Filing 25

ORDER DENYING 24 Petitioner's Motion for Stay of Proceedings, signed by Magistrate Judge Gary S. Austin on 10/19/2010. (Jessen, A)

(HC) Hayes v. Adams

Doc. 25

1 2 3 4 5 6 7 8 9 10 CONROY J. HAYES, 11 Petitioner, 12 v. 13 DERREL G. ADAMS, 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. 18 On October 5, 2009, Petitioner filed a petition for writ of habeas corpus. After conducting a 19 preliminary review of the petition, on October 19, 2009, the Court issued an order directing 20 Respondent to file a response to the petition. Respondent filed an answer to the petition on 21 January 19, 2010. On March 1, 2010, Petitioner filed a traverse. The case has been pending decision 22 on the merits since then. 23 On September 7, 2010, Petitioner filed the instant motion to stay proceedings pending 24 exhaustion of a newly discovered claim. Respondent did not file an opposition. 25 DISCUSSION 26 A district court has discretion to stay a petition which it may validly consider on the merits. 27 Rhines v. Weber, 544 U.S. 269, 276 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) 1:09-CV-01749 OWW GSA HC ORDER DENYING PETITIONER'S MOTION FOR STAY OF PROCEEDINGS [Doc. #24]

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981, 987-88 (9th Cir. 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 1102 (1997). However, the Supreme Court held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light of AEDPA's objectives, "stay and abeyance [is] available only in limited circumstances" and "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. Even if Petitioner were to demonstrate good cause for that failure, "the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless." Id. In this case, the Court does not find good cause to excuse Petitioner's failure. This case is fully briefed and has been pending a decision on the merits since March 1, 2010. The new claim is clearly untimely under AEDPA and Petitioner has not demonstrated diligence. Petitioner states he only became aware of the claim's existence upon review of voir dire transcripts which he did not obtain until August 17, 2010. However, Petitioner had ample time to seek these transcripts following judgment in his case on May 17, 2006. He claims he was unable to secure the transcripts until August 17, 2010, because his attempts in the superior court and with his appellate counsel did not prove fruitful until he filed a formal motion in the appellate court. Nevertheless, Petitioner concedes he contacted his appellate counsel for a copy of the transcripts on August 6, 2008. He also concedes he received a response from appellate counsel on August 8, 2008, wherein counsel specifically informed Petitioner that he must apply directly to the appellate court by formal motion for a copy of the transcripts. (See Pet'r's Mot. for Stay, Ex. F.) Moreover, as the letter indicates, appellate counsel reminded Petitioner that he had already informed Petitioner of this procedure in his letter of June 10, 2007. (See Pet'r's Mot. for Stay, Ex. F.) Petitioner should have attempted to secure these transcripts soon after June 10, 2007, and not when he actually did so three years later on July 20, 2010. His three-year delay clearly shows a lack of diligence. Petitioner's various excuses for his untimeliness are without merit. He claims he could not seek his transcripts sooner because he was placed in administrative segregation. According to his exhibits, he was placed in administrative segregation on May 10, 2010, and returned to regular programming on July 14, 2010. (See Pet'r's Mot. for Stay, Ex. H.) This two-month impediment does 2

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not excuse a three-year delay. Petitioner also claims he acted diligently by continuing to seek his transcripts in the superior court and with counsel. As noted above, however, Petitioner was informed on June 10, 2007, and again on August 8, 2008, that in order to obtain the transcripts he had to file a formal motion with the appellate court. His failure to do so until July 20, 2010, does not show diligence. Staying the case at this juncture in order to allow Petitioner to pursue another round of review in the state courts frustrates AEDPA's objective of encouraging finality and undermines AEDPA's objective of streamlining federal habeas proceedings. Rhines, 544 U.S. at 277. The Court does not find good cause to grant a stay. Accordingly, Petitioner's motion for stay of the proceedings is hereby DENIED.

IT IS SO ORDERED. Dated: 6i0kij

October 19, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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