Torres v. Peery
Filing
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ORDER DECLINING to ADOPT FINDINGS and RECOMMENDATIONS 6 ; ORDER GRANTING Petitioner's Motion for Stay and Abeyance 11 ; ORDER DIRECTING Petitioner to File Regular Status Reports, signed by Chief Judge Lawrence J. O'Neill on 4/18/17: 30-Day Deadline. (Hellings, J)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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OSCAR PABLO TORRES,
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No. 1:17-cv-00169-LJO-JLT (HC)
Petitioner,
ORDER DECLINING TO ADOPT
FINDINGS AND RECOMMENDATIONS
(Doc. No. 6)
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v.
ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE
(Doc. No. 11)
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SUZANNE PERRY, Warden,
ORDER DIRECTING PETITIONER TO
FILE REGULAR STATUS REPORTS
Respondent.
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On March 2, 2017, the Magistrate Judge issued Findings and Recommendations to
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summarily dismiss the petition for failure to exhaust state remedies. (Doc. No. 6.) The Findings
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and Recommendations were served upon all parties and contained notice that any objections were
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to be filed within twenty-one days from the date of service of that order. Over twenty-one days
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passed and no party filed objections. On March 27, 2017, the Court adopted the Findings and
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Recommendations, dismissed the petition, closed the case, and entered judgment. (Docs. No. 7-
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8.) On that same date, the Court received a purported motion for extension of time to file
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objections. (Doc. No. 9.) The Court vacated the order dismissing the petition and granted
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Petitioner an extension of time to file objections.
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On April 14, 2017, Petitioner filed objections. Upon review of the objections, the Court
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will decline to adopt the Findings and Recommendation and will order a stay of the proceedings
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pending exhaustion of state remedies.
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In his objections, Petitioner concedes that he has not exhausted Grounds 1-4, 6, and 8-10
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of the petition in the state courts. The only grounds for relief presented in the petition are those
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same enumerated grounds for relief. Therefore, the instant petition is completely unexhausted.
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Conceding that his petition is at least partially unexhausted, Petitioner requests a stay of the
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proceedings under Rhines v. Weber, 544 U.S. 269 (2005) and Pace v. DiGuglielmo, 544 U.S. 408
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(2005).
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Recently, the Ninth Circuit held that a district court has discretion to hold a completely
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unexhausted federal petition in abeyance pending exhaustion of state remedies. Mena v. Long,
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813 F.3d 907, 910 (9th Cir. 2016). Pursuant to Rhines, a district court may hold a petition in
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abeyance when “the petitioner had good cause for his failure to exhaust, his unexhausted claims
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are potentially meritorious, and there is no indication that the petitioner engaged in intentionally
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dilatory litigation tactics.” Rhines, 544 U.S. at 278. In this case, Petitioner states he is uncertain
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if his unexhausted claims will be untimely once the state courts address them. In light of this
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uncertainty, he has filed the instant “protective” petition. In Pace, the Supreme Court
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contemplated the filing of a protective petition in such a case. Pace, 544 U.S. at 416. Further, the
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Court noted that “[a] petitioner's reasonable confusion about whether a state filing would be
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timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Id. (citing Rhines,
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544 U.S. at 278). Therefore, Petitioner has shown good cause for a stay of his petition. Although
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the Court is not prepared at this time to make an assessment of the merits of the claims, a
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preliminary review of the claims indicates that Petitioner alleges constitutional violations that, if
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true, would entitle him to habeas relief. In addition, it appears that no prejudice would inure to
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the parties by granting the requested stay. Also, there is no indication that Petitioner has engaged
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in intentionally dilatory litigation tactics.
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Therefore, the Court will grant Petitioner’s motion for a stay of the proceedings and will
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hold the petition for writ of habeas corpus in abeyance pending exhaustion of Petitioner’s state
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remedies.
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However, the Court will not indefinitely hold the petition in abeyance. See Calderon v.
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U.S. Dist. Court for Northern Dist. of California (Taylor), 134 F.3d 981, 988 n. 11 (9th Cir.
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1998). No later than thirty (30) days after the date of service of this order Petitioner must inform
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the Court of the status of the habeas proceedings in state court, including the dates his cases were
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filed, the case numbers, and any outcomes. Further, Petitioner must proceed diligently to pursue
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his state court remedies, and every sixty (60) days after the filing of the initial status report
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Petitioner must file a new status report regarding the status of his state court habeas corpus
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proceedings. Following final action by the state courts, Petitioner will be allowed thirty (30) days
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within which to file a motion for leave to amend the instant petition to include the newly
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exhausted claims. Failure to comply with these instructions and time allowances will result in
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this Court vacating the stay nunc pro tunc to the date of this order. Kelly v. Small, 315 F.3d
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1063, 1071 (9th Cir. 2003).
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ORDER
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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March 2, 2017;
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The Court DECLINES to adopt the Findings and Recommendations issued on
Petitioner’s motion to stay the instant proceedings on his habeas petition (Doc.
1), is GRANTED;
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Proceedings on the instant petition are STAYED pending exhaustion of
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Petitioner’s state remedies concerning the unexhausted claims presented in his
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petition (Doc. No. 1);
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4.
Petitioner is DIRECTED to file a status report within thirty (30) days of the
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date of service of this order, advising the Court of the status of all pending
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habeas proceedings filed in state court, the dates when such cases were filed,
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and any outcomes;
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5.
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Petitioner is DIRECTED to file a new status report every sixty (60) days after
the filing of the initial status report; and
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Petitioner is GRANTED thirty (30) days following the final order of the state
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courts within which to file a motion for leave to amend the petition to include
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the newly exhausted claims.
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IT IS SO ORDERED.
Dated:
/s/ Lawrence J. O’Neill _____
April 18, 2017
UNITED STATES CHIEF DISTRICT JUDGE
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