Condon v. People Of California

Filing 17

ORDER Granting 16 Motion to Amend the Petition; ORDER Directing Clerk of Court to Change Name of Respondent; ORDER Granting Motion for Stay and Abeyance, signed by Magistrate Judge Gary S. Austin on 7/24/13. Thirty-Day Deadline. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JULIE CONDON,

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Petitioner,
v.

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TAMARA KABBAN-MILLER, Warden,
Respondent.

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1:13-cv-00792 GSA HC
ORDER GRANTING MOTION TO AMEND
PETITION
ORDER DIRECTING CLERK OF COURT TO
CHANGE NAME OF RESPONDENT
ORDER GRANTING MOTION FOR STAY AND
ABEYANCE
[THIRTY DAY DEADLINE]

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. She has consented to the jurisdiction of the Magistrate Judge pursuant

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to 28 U.S.C. § 636(c).

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On May 13, 2013, Petitioner filed a First Amended Petition along with a motion to stay the

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petition pending exhaustion of state remedies. After conducting a preliminary review of the petition,

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the Court determined that Petitioner had failed to name a proper respondent. In addition, the Court

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found Petitioner had failed to demonstrate good cause for a stay. Petitioner was granted an

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opportunity to amend the petition to name a proper respondent, and her motion for stay was denied

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without prejudice. On July 22, 2013, Petitioner filed the instant motion to amend the petition. She

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also renews her motion for stay and abeyance.
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DISCUSSION

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I.

Motion to Amend

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Pursuant to Rule 15 of the Federal Rules of Civil Procedure, a party may amend its pleading

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once as a matter of course, and thereafter only with leave of court or consent of the opposing party.

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Leave of court should freely be given when justice so requires. See Fed. R. Civ. P. 15. In this case,

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Petitioner seeks to amend her petition to name Tamara Kabban-Miller, the warden at her institution, as

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the respondent in this matter. Since the warden is the proper respondent in a habeas action, her motion

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will be granted. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992). Petitioner also seeks

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to amend her petition to include six additional claims. Insofar as leave should freely be given and

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Respondent has not yet filed an answer to the petition, the motion to amend will be granted. However,

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the sixth claim Petitioner seeks to include has already been dismissed by this Court. Therefore, that

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claim is disregarded.

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II.

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Motion for Stay and Abeyance
Petitioner renews her motion for stay and abeyance. A district court has discretion to stay a

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mixed petition and allow the petitioner to return to state court to exhaust her state remedies. Rhines v.

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Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-

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88 (9th Cir.1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.1997). However, the Supreme

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Court has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty

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Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light of AEDPA’s objectives, “stay and abeyance

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[is] available only in limited circumstances” and “is only appropriate when the district court

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determines there was good cause for the petitioner’s failure to exhaust his claims first in state court.”

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Id. at 277.

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In this case, the Court finds good cause to grant the motion for stay. Petitioner states she was

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ill and undergoing interferon therapy from December of 2011 to May of 2012. Further, she states she

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was not provided a copy of the record by appellate counsel until after the direct appeal. In addition, it

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appears that Petitioner was acting with due diligence. Petitioner states the California Supreme Court

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denied her petition for review on November 14, 2012. She then filed in federal court on April 5, 2013.

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She has also filed a petition in the Tuolumne County Superior Court to exhaust her state remedies.
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Based on the alleged date of the California Supreme Court’s denial, Petitioner appears to be within the

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statute of limitations. Accordingly, it appears that Petitioner has not intentionally or unduly delayed.

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Good cause having been shown, the Court will grant a stay of the proceedings so Petitioner can

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complete exhaustion of the additional claims.
However, the Court will not indefinitely hold the petition in abeyance. Rhines, 544 U.S. at

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277. Petitioner must diligently pursue her state court remedies. She is directed to file a status report

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within thirty (30) days of the date of service of this Order, and she must file a status report every

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ninety (90) days thereafter advising the Court of the status of the state court proceedings. Following

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final action by the state courts, Petitioner will be allowed thirty (30) days to file a motion to lift the

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stay. Failure to comply with these instructions and time allowances will result in this Court vacating

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the stay nunc pro tunc to the date of this order, and dismissal of the unexhausted claims. Rhines, 544

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U.S. at 278.
ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion to amend is GRANTED;

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2) The Clerk of Court is DIRECTED to change the name of Respondent to Tamara Kabban-

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Miller;

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3) Petitioner’s motion for stay is GRANTED; and

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4) Petitioner is DIRECTED to file a status report within thirty (30) days of the date of service

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of this Order, and then every ninety (90) days thereafter. Following final action by the California

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Supreme Court, Petitioner is DIRECTED to notify the Court by filing a motion to lift the stay.

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IT IS SO ORDERED.

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Dated:

July 24, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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