Laucella v. Haviland

Filing 8

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge John F. Moulds on 10/26/09 ORDERING the clerk to assign a district judge to this case; and RECOMMENDING that petitioner's 3 motion to stay be granted; this action be stayed pend ing exhaustion of state remedies as to petitioner's 10th claim; and petitioner be directed to file a motion to lift the stay w/in 30 days from an order by the CA Supreme Court resolving the claim. Assigned and Referred to Judge Frank C. Damrell, Jr.; Objections to F&R duew/in 10 days.(Yin, K)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. JOHN W. HAVILAND, Respondent. / Petitioner is a state prisoner proceeding pro se and paid the filing fee. This action was transferred to the instant court on October 13, 2009. On October 2, 2009, petitioner filed a motion for stay and abeyance. Petitioner contends that grounds one through nine are fully exhausted, but that the February 25, 2009 order of the California Supreme Court denied his petition without prejudice to filing a petition for writ of habeas corpus in the trial court. (Pet's Ex. V, citing See In Re Lawrence, 44 Cal.4th 1181 (2008). Petitioner seeks leave to return to state court to exhaust his claims in ground ten, pursuant to In Re Lawrence. In Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), the United States Supreme Court held that a district court has authority to stay a mixed petition pending exhaustion of unexhausted claims in "limited circumstances," i.e., "when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 1535. The Court also held that it would be an abuse of discretion to stay federal habeas corpus proceedings pending exhaustion of a "plainly meritless" claim. Id. Petitioner has demonstrated good cause for his failure to exhaust his tenth claim in state court. See Rhines, 544 U.S. at 278. In re Lawrence was decided long after petitioner was 1 ORDER AND FINDINGS AND RECOMMENDATIONS IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA ROBERT LAUCELLA, Petitioner, No. 2:09-cv-2871 JFM (HC)

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convicted. The California Supreme Court suggested petitioner return to state court with this claim. There is no indication that petitioner has engaged in intentional dilatory tactics, and his underlying claim is potentially meritorious. Thus, petitioner's motion should be granted. Accordingly, IT IS ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and IT IS HEREBY RECOMMENDED that: 1. Petitioner's October 2, 2009 motion to stay be granted; 2. This action be stayed pending exhaustion of state remedies as to petitioner's tenth claim; and 3. Petitioner be directed to file a motion to lift the stay within thirty days from the date of any order by the California Supreme Court resolving the claim referred to in paragraph 2 of this recommendation. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). DATED: October 26, 2009.

/001; lauc2871.sty

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