Perez v. Bitter

Filing 18

ORDER Granting Petitioner's 16 Motion to File a First Amended Petition to Withdraw his Unexhausted Claims; ORDER Deeming Petitioner's First Amended Petition Properly Filed; ORDER Granting Petitioner's 16 Motion for Stay of the Proceedings; ORDER Directing Petitioner to File Status Reports signed by Magistrate Judge Sheila K. Oberto on 03/28/2012. (Flores, E)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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CESAR MELGOZA PEREZ,

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Petitioner,

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v.
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M. D. BITER, Warden,
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Respondent.
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1:11-cv—01766–LJO-SKO-HC
ORDER GRANTING PETITIONER’S
MOTION TO FILE A FIRST AMENDED
PETITION TO WITHDRAW HIS
UNEXHAUSTED CLAIMS (DOC. 16)
ORDER DEEMING PETITIONER’S FIRST
AMENDED PETITION (DOC. 17)
PROPERLY FILED
ORDER GRANTING PETITIONER’S
MOTION FOR STAY OF THE
PROCEEDINGS
(Doc. 16)
ORDER DIRECTING PETITIONER TO
FILE STATUS REPORTS

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local

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Rules 302 and 303.

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motion to 1) withdraw unexhausted claims so that he may proceed

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with other, fully exhausted claims, 2) file a first amended

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petition (FAP) that contains only fully exhausted claims, and 3)

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stay the proceedings here pending exhaustion of the withdrawn

The matter has been referred to the

Pending before the Court is Petitioner’s

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claims in the state courts.

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2012.

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petition, and thus no response to the motion has been filed.

The motion was filed on January 13,

Respondent has not been ordered to respond to the

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I.

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A petition for a writ of habeas corpus may be amended or

Amendment of the Petition

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supplemented as provided in the rules of procedure applicable to

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civil actions to the extent that the civil rules are not

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inconsistent with any statutory provisions or the rules governing

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section 2254 cases.

28 U.S.C. § 2242; Rule 12 of the Rules

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Governing Section 2254 Cases in the United States District Courts

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(Habeas Rules).

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petitioner to amend the petition.

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680, 696 n.7 (1993).

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may amend its pleading once as a matter of course within twenty-

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one days after service of the pleading, a required responsive

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pleading, or a motion under Rule 12(b), (e), or (f), whichever is

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earlier.

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with the opposing party’s written consent or the Court’s leave.

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Further, the Court should freely give leave when justice so

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requires.

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Fed. R. Civ. P. 15(a) may be used to permit the
Withrow v. Williams, 507 U.S.

Fed. R. Civ. P. 15(a) provides that a party

In all other cases, a party may amend its pleading only

In this case, Petitioner seeks to withdraw the following

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claims: 1) denial of Petitioner’s right to the effective

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assistance of counsel guaranteed by the Sixth Amendment resulting

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from trial counsel’s failure to request that a detective and a

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prosecutorial investigator who were also principal witnesses

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against Petitioner be excluded from sitting at the counsel table

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throughout the trial; 2) denial of Petitioner’s right to the

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effective assistance of counsel guaranteed by the Sixth Amendment
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by trial counsel’s failure to object to and to exclude

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photographs of the deceased; 3) denial of Petitioner’s right

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under the Sixth Amendment to the effective assistance of counsel

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by trial counsel’s failure to object to the prosecutor’s a)

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vouching for the credibility of witnesses and b) improper remarks

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concerning Petitioner’s guilt before and during argument; and 4)

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denial of Petitioner’s right under the Fourteenth Amendment

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resulting from the insufficiency of the evidence to support

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convictions of the enhancements of discharging a firearm and

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being armed with a firearm.

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proceeding in the California Supreme Court concerning these

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claims in case number S198007.

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(Pet. 6-7.)

Petitioner has filed a

(Mot. 2.)

Petitioner seeks to amend the petition to state only the

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following claims, which Petitioner alleges have been fully

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exhausted:

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violation of the due process protections of the Fifth and

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Fourteenth Amendments by admission of the testimony of four

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witnesses who testified pursuant to a plea agreement that coerced

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them to testify for the prosecution; 2) denial of Petitioner’s

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Sixth and Fourteenth Amendment right to a fair trial resulting

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from prejudicial error in providing an incorrect instruction

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concerning corroboration of accomplice testimony, and denial of

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Petitioner’s Sixth and Fourteenth Amendment right to the

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effective assistance of counsel if counsel failed to preserve the

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issue for appeal; 3) violation of Petitioner’s Sixth and

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Fourteenth Amendment right to confrontation by admission of an

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autopsy report; 4) denial of Petitioner’s Fourteenth Amendment

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right to due process of law resulting from the trial court’s

1) denial of Petitioner’s right to a fair trial in

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compound errors of giving an incomplete instruction concerning

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flight after being accused of a crime in the absence of evidence

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to support the giving of the instruction in the first instance;

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and 5) violation of Petitioner’s Eighth Amendment protection

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against cruel and unusual punishment under the Constitution by

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the trial court’s sentencing Petitioner to fifty years to life.

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(FAP 2, 4-6, 9-13.)

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Petitioner’s request to amend the petition to withdraw the
unexhausted claims will be granted.

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II.

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With respect to petitions containing unexhausted claims, a

Motion to Stay Proceedings

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district court has discretion to stay a petition which it may

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validly consider on the merits.

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276 (2005);

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2009).

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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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F.3d 1133, 1138-41 (9th Cir. 2009).

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discretion to stay proceedings; however, this discretion is

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circumscribed by the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA).

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AEDPA’s objectives, “stay and abeyance [is] available only in

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limited circumstances” and “is only appropriate when the district

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court determines there was good cause for the petitioner’s

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failure to exhaust his claims first in state court.”

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78.

Rhines v. Weber, 544 U.S. 269,

King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.

A petition may be stayed either under Rhines, or under
King v. Ryan, 564

Under Rhines, the Court has

Rhines, 544 U.S. at 276-77.

In light of

Id. at 277-

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A petition may also be stayed pursuant to the procedure set

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forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003).

Under this three-step procedure: 1) the petitioner
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files an amended petition deleting the unexhausted claims; 2) the

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district court stays and holds in abeyance the fully exhausted

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petition; and 3) the petitioner later amends the petition to

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include the newly exhausted claims.

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1133, 1135 (9th Cir. 2009).

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allowed if the additional claims are timely.

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See, King v. Ryan, 564 F.3d

However, the amendment is only
Id. at 1140-41.

Here, Petitioner has already withdrawn his unexhausted

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claims and has moved for a stay of the proceedings to permit

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exhaustion of the claims by presenting the claims to the

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California Supreme Court for a ruling.
The Court will stay the proceedings according to the second

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step of the Kelly procedure.

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file status reports of his progress through the state courts.

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Once the California Supreme Court renders its opinion, provided

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the opinion is a denial of relief, Petitioner must file an

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amended petition including all of his exhausted claims.

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forewarned that claims may be precluded as untimely if they do

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not comport with the statute of limitations set forth in 28

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U.S.C. § 2244(d).

Petitioner will be instructed to

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III.

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Accordingly, it is ORDERED that:

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1)

He is

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Disposition

Petitioner’s motion to amend the petition to withdraw

the unexhausted claims is GRANTED; and
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The first amended petition (Doc. 17) is DEEMED properly

filed; and
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Petitioner’s motion for a stay of the proceedings is

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GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003); and
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4) The proceedings are STAYED pending exhaustion of state
remedies; and

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5) Petitioner is DIRECTED to file a status report of his

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progress in the state courts within thirty (30) days, and then

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every thirty (30) days thereafter until exhaustion is complete;

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and

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6) Within thirty (30) days after the final order of the

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California Supreme Court, Petitioner MUST FILE an amended

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petition in this Court including all exhausted claims.

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Petitioner is forewarned that failure to comply with this
Order will result in the Court’s vacating the stay.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 28, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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