Jeff v. Brown et al

Filing 5

ORDER GRANTING Petitioner's 2 Motion for Stay of Proceedings on Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Administratively Close Case; ORDER DIRECTING Petitioner to File Regular Status Reports; ORDER DIRECTING Petitioner to Notify Court Within Thirty Days of Any Final Order Regarding Exhaustion of Ground 8 signed by Magistrate Judge Jennifer L. Thurston on 9/30/2010. CASE CLOSED. Initial Status Report due by 11/3/2010.(Bradley, A)

(HC) Jeff v. Brown et al

Doc. 5

1 2 3 4 5 6 7 8 9 10 ROBERT GEORGE JEFF, III, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) Petitioner, ) ) ) v. ) ) ) MATTHEW CATE, et al., ) ) Respondents. ) ____________________________________) 1:10-cv-01510-JLT HC ORDER GRANTING PETITIONER'S MOTION FOR STAY OF PROCEEDINGS ON PETITION FOR WRIT OF HABEAS CORPUS (Doc. 2) ORDER DIRECTING CLERK OF COURT TO ADMINISTRATIVELY CLOSE CASE ORDER DIRECTING PETITIONER TO FILE REGULAR STATUS REPORTS ORDER DIRECTING PETITIONER TO NOTIFY COURT WITHIN THIRTY DAYS OF ANY FINAL ORDER REGARDING EXHAUSTION OF GROUND 8 Petitioner is a state prisoner proceeding through retained counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner originally filed his federal petition on August 18, 2010. (Doc. 2). In that instant petition, Petitioner challenges his 2007 conviction and the resulting 18-years-to-life sentence in the Kings County Superior Court for gross vehicular manslaughter while intoxicated, driving under the influence of alcohol and causing bodily injury to another, failure to stop at the scene of an injury accident, and driving with a license suspended or revoked for driving under the influence of a drug or alcohol. The petition raises the following grounds for relief: (1) error in denial of Petitioner's

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pre-trial Trombetta motion;1 (2) error in denial of Petitioner's motion for new trial on Trombetta grounds; (3) denial of Petitioner's motion for new trial; (4) failure to afford Petitioner a timely arraignment; (5) failure to afford Petitioner a timely preliminary hearing; and (6) ineffective assistance of trial counsel in failing to conduct a proper investigation. (Doc. 2). Although Petitioner does not provide a copy of the Petition for Review filed in the California Supreme Court, and although Petitioner does not expressly delineate which claims are exhausted and which are not, it appears to the Court that Grounds One, Two, and Three may have been exhausted, but that Grounds Four, Five, and Six may not have been. In the petition, Petitioner appears to request a stay of the case while he exhausts the latter three grounds through habeas corpus proceedings already commenced in the state courts. DISCUSSION Traditionally, a district court has had the discretion to stay a petition which it may validly consider on the merits. Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-988 (9th Cir. 1998); Greenawalt v. Stewar7, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 1002 (1997). However, the Ninth Circuit has held that Taylor in no way granted "district courts carte blanche to stay even fully exhausted habeas petitions." Taylor, 134 F.3d at 988 n. 11. Granting a stay is appropriate where there is no intention on the part of the Petitioner to delay or harass and in order to avoid piecemeal litigation. Id. In addition, the Ninth Circuit has indicated that it is proper for a district court, in its discretion, to hold a petition containing only exhausted claims in abeyance in order to permit the petitioner to return to state court to exhaust his state remedies. Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2004); Ford v. Hubbard, 305 F.3d 875, 882-883 (9th Cir. 2002); James v. Pliler, 269 F.3d 1124, 1126-1127 (9th Cir. 2002); Taylor, 134 F.3d 981. Notwithstanding the foregoing, until recently, federal case law continued to require that the Court dismiss "mixed" petitions containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509 (1982). That changed with the United States Supreme Court's decision in Rhines v. Weber, 544 U.S. 269 (2005). Recognizing that "[a]s a result of the interplay between AEDPA's 1-

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C a lifo r n ia v. Trombetta, 467 U.S. 479 (1984).

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year statute of limitations2 and Lundy's dismissal requirement, petitioners who come to federal court with `mixed' petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims," the Supreme Court held that federal courts may now issue "stay and abey" orders under appropriate circumstances to permit petitioners to exhaust unexhausted claims before proceeding with their federal petitions. Rhines, 544 U.S. at 276-277. In so holding, the Supreme Court noted that the procedure should be "available only in limited circumstances." 544 U.S. at 277. Specifically, the Court said it was appropriate only when (1) good cause exists for petitioner's failure to exhaust; (2) petitioner's unexhausted claims are not "plainly meritless" and (3) there is no indication that petitioner engaged in "abusive litigation tactics or intentional delay." Id. at 277-278; Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2005). When a petitioner has met these requirements, his interest in obtaining federal review of his claims outweighs the competing interests in finality and speedy resolution of federal petitions. Rhines, 544 U.S. at 278. In a ruling subsequent to Rhines, the Ninth Circuit re-affirmed the vitality of both the Rhines two-step stay procedure as well as the Kelly three-step stay procedure: Rhines allows a district court to stay a mixed petition, and does not require that unexhausted claims be dismissed while the petitioner attempts to exhaust them in state court. In contrast, the three-step procedure outlined in Kelly allows the stay of fully exhausted petitions, requiring that the unexhausted claims be dismissed. King v. Ryan, 564 F.3d 1133, 1139-1140 (9th Cir. 2009). There are, however, significant distinctions between the two procedures. First, claims exhausted during a Rhines stay are not subject to timeliness challenges since the mixed petition remains pending throughout the stay procedure. Id. at p. 1140. In contrast, any claim exhausted during a Kelly stay must "relate back" to the claims in the original petition under the doctrine set forth in Mayle v. Feliz, 545 U.S. 644 (2005), or else be timely filed under the AEDPA's one-year statute of limitation. Id. Additionally, petitioners seeking to avail themselves of a Rhines stay must make the additional showing of good cause, something not required under Kelly. Id. at 1143. Here, it appears that Petitioner is seeking to invoke the Rhines procedure since he is not requesting dismissal of the unexhausted claims, but rather seeks a stay of this mixed petition until
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T h e Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA), 28 U.S.C. § 1244(d).

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such time as the unexhausted claims have been exhausted. That appears to be precisely the scenario that the Rhines procedure was designed to cover: "Rhines applies to stays of mixed petitions, whereas the [Kelly] three-step procedure applies to stays of fully exhausted petitions...." King, 564 F. 3d at 1140, quoting Jackson v. Roe, 425 F. 3d 654, 661 (9th Cir. 2005). (Emphasis in original). Under Rhines, the Court must first determine whether good cause exists for Petitioner's failure to exhaust and whether there is any indication that Petitioner engaged in "abusive litigation tactics or intentional delay." Rhines, 544 U.S. at 277-278. Petitioner has appended various declarations to his petition which indicate that his retained counsel has diligently proceeded with an investigation of claims that were not raised in the direct appeal. Although retained counsel has experienced various unexpected medical delays in the course of his investigation, nothing in the record suggests in any way that either Petitioner or his retained counsel have been anything other than diligent. Moreover, the fact that two of the three unexhausted claims require detailed legal knowledge that is normally beyond the ken of a pro se petition, and the fact that the ineffective assistance of counsel claim relies in part upon facts that have only recently come to light through further investigation by retained counsel, provide a further basis for the Court's finding that there is good cause for Petitioner's failure to exhaust these three claims at an earlier point in the criminal justice process. Nothing in the record suggests that Petitioner has engaged in "abusive litigation tactics or intentional delay." Therefore, neither of these criteria presents an obstacle to granting a stay under Rhines. Additionally, in order to grant a Rhines stay, the Court must also make a finding that the claim or claims a petitioner is seeking to exhaust are not "plainly meritless." Rhines, 544 U.S. at 277-278. Here, Petitioner has included lengthy legal argument, as well as various declarations, to support his allegations that the state court failed to provide timely arraignment and preliminary hearing proceedings, and also that trial counsel was ineffective. The Court expresses no opinion regarding the likelihood that such claims would ultimately entitle Petitioner to relief in these proceedings; suffice it to say that, based on Petitioner's allegations and supporting evidence, the 4

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Court cannot, at this juncture, find that Grounds Four, Five, and Six are "plainly meritless." Therefore, good cause having been presented and good cause appearing therefore, the Court will grant Petitioner's motion for a stay of the proceedings and will hold the petition for writ of habeas corpus in abeyance pending exhaustion of Petitioner's state remedies. However, the Court will not indefinitely hold the petition in abeyance. See Taylor, 134 F.3d at 988 n. 11. No later than thirty (30) days after the date of service of this Order Petitioner must inform the Court of the status of the habeas proceedings in state court, including the dates his cases were filed, the case numbers, and any outcome.3 Further, Petitioner must proceed diligently to pursue his state court remedies, and every sixty (60) days after the filing of the initial status report Petitioner must file a new status report regarding the status of his state court habeas corpus proceedings. Following final action by the state courts, Petitioner will be allowed thirty (30) days within which to notify the Court that he has fully exhausted Grounds Four, Five, and Six. At that point, the Court will issue a briefing schedule regarding the claims in the instant petition. Failure to comply with these instructions and time allowances will result in this Court vacating the stay nunc pro tunc to the date of this order. Rhines, 544 U.S. at 277-278. ORDER Accordingly, IT IS HEREBY ORDERED that: 1. Petitioner's motion to stay the instant proceedings on his habeas petition (Doc. 2), is GRANTED; 2. Proceedings on the instant petition are STAYED pending exhaustion of Petitioner's state remedies; 3. Petitioner is DIRECTED to file a status report within thirty (30) days of the date of service of this order, advising the Court of the status of all pending habeas proceedings filed in state court, the dates when such cases were filed, and any outcomes; 4. Petitioner is DIRECTED to file a new status report every sixty (60) days after the filing of the initial status report; and 5. Petitioner is DIRECTED to notify the Court within thirty days of any final order of the
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T h e filing should be entitled "Status Report."

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state courts regarding newly exhausted grounds; 6. The Clerk of the Court is DIRECTED to ADMINISTRATIVELY CLOSE the case. The Court will direct the Clerk of the Court to re-open the case when and if the stay is lifted.

IT IS SO ORDERED. Dated: September 30, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

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