Garduno v. McDonald

Filing 21

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/6/2011 DENYING petitioner's 19 Motion to Stay the Petition. (Marciel, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN LAWRENCE GARDUNO,

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Petitioner,

No. CIV S-11-0469 CKD P

vs.
MIKE D. MCDONALD,
Respondent.

ORDER
/

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On August 12, 2011, petitioner filed a motion to stay and hold in abeyance claims

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pertaining to his 1995 and 2009 convictions, respectively, while he exhausts such claims in state

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court. See Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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For the reasons set forth below, the court will deny petitioner’s motion.

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Stay of Claim Challeging 2009 Conviction

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This action is proceeding on the first amended petition (hereinafter “FAP”) in

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which petitioner challenges his 2009 conviction for assault with a firearm and possession of a

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firearm by a felon. The jury also found that petitioner had four prior convictions. (FAP; Lod.

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Doc. No. 4 at 1.) In the FAP, petitioner claims that his trial counsel in 2008 was ineffective for

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failing to investigate the 1995 prior conviction, and raises various other challenges to the 1995

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conviction that, in part, formed the basis of his 2009 sentence.

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Briefing on the FAP is well underway: Respondent has filed an answer, and this

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court by concurrent order will grant petitioner’s August 31, 2011 motion for a second extension

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of time to file his traverse. Notably, respondent does not contend that any of petitioner’s claims

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as to the 2009 conviction are unexhausted, but addresses them on the merits. (See Dkt. No. 14 at

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6-7 (recounting petitioner’s state court challenges to his 2009 conviction and sentence).)

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Petitioner currently seeks a stay in order to “present in the state court the issue of ineffective

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assistance of his trial counsels during the sentence in 2009 conviction.” However, respondent

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has already addressed the merits of that claim in the answer, and petitioner may further argue its

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merits in his traverse. Dkt. No. 14 at 13-15. This being so, the court will deny petitioner’s

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request to stay his ineffective assistance claim concerning his 2009 conviction. (See Dkt. No. 19

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at 3.)

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Stay of Claims Challenging 1995 Conviction

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Petitioner also seeks to stay claims or potential claims directly attacking his 1995

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conviction. As petitioner acknowledges in his motion, the court informed petitioner in June

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2011 that he had only one active case pending: the instant action challenging the 2009

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conviction. Petitioner states that he mailed a separate petition challenging the 1995 conviction,

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which the court apparently never received. At any rate, the undersigned cannot grant a motion to

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stay a petition challenging the 1995 conviction when no such petition has been filed. Thus, the

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court will deny the instant motion in its entirety.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s August 12, 2011
motion to stay the petition (Dkt. No. 19) is denied.

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Dated: September 6, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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gard0469.ord