Brooks v. McDonald
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 8/23/11 ORDERING that 8 FINDINGS AND RECOMMENDATIONS are VACATED; 2 Motion to Stay is DENIED as moot; Petitioner is granted 30 days from the date of this order in which to file a renewed motion for a stay and abeyance addressing the issues set forth above.(Dillon, 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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PHARAOH E. BROOKS,
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Petitioner,
No. CIV S-11-1637 MCE DAD P
vs.
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M. MCDONALD, Warden,
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Respondent.
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ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
BACKGROUND
On June 16, 2011, petitioner commenced this action by filing a petition for writ of
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habeas corpus, challenging his 2008 judgment of conviction entered in the San Joaquin County
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Superior Court, together with a motion for a stay and abeyance. Petitioner represented that he
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had filed a “mixed” petition with this court and claimed that he had good cause for a stay and
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abeyance under Rhines v. Weber, 544 U.S. 269 (2005).
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On August 2, 2011, the court issued findings and recommendations,
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recommending that petitioner’s motion for a stay and abeyance be denied. According to
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petitioner’s form petition, he presented the six claims which he characterized as “unexhausted”
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on direct appeal to both the California Court of Appeal and the California Supreme Court. The
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court advised petitioner that if he had fairly presented his claims to the California Court of
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Appeal and the California Supreme Court on direct appeal, he had exhausted those claims by
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fairly presenting them to the state high court. See Picard v. Connor, 404 U.S. 270, 276 (1971);
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Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986). The court instructed petitioner to file
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objections to the findings and recommendations if the court had somehow misunderstood his
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form habeas application or motion for a stay and abeyance.
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In response to the court’s findings and recommendations, petitioner has filed
objections. Petitioner does not disagree with the findings and recommendations with regard to
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the six claims which he had previously characterized as “unexhausted.” However, petitioner
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contends that he believes he still has an unexhausted claim that he would like to present to the
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California Supreme Court. Specifically, petitioner wishes to now exhaust an ineffective
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assistance of counsel claim. In this regard, according to petitioner his trial attorney did not
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exercise due diligence in attempting to locate an out-of-state alibi witness. Petitioner states that
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if this court is unable to grant him a stay based on the information contained in his previous
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motion for stay and abeyance, he would request adequate time to file a new motion for a stay and
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abeyance.
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DISCUSSION
As petitioner is aware, the United States Supreme Court has affirmed the district
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court’s discretion to stay a federal habeas proceeding to allow a petitioner to present unexhausted
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claims to the state court where there is good cause for the petitioner’s failure to exhaust all
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claims in state court before filing a federal habeas petition. See Rhines v. Weber, 544 U.S. 269
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(2005). See also King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (analyzing the two procedures
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available to habeas petitioners who wish to proceed with exhausted and unexhausted claims for
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relief); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay
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fully exhausted federal petitions pending exhaustion of other claims); Calderon v. United States
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Dist.Court (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998). This discretion to issue a stay extends
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to “mixed” petitions. Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded that
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a district court has discretion to stay a mixed petition to allow a petitioner time to return to state
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court to present unexhausted claims.”). The Supreme Court has cautioned, however, that “stay
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and abeyance should be available only in limited circumstances” and that a stay “is only
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appropriate when the district court determines there is good cause for the petitioner’s failure to
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exhaust his claims first in state court.” Rhines, 544 U.S. at 277. Even if a petitioner shows good
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cause, the district court should not grant a stay if the unexhausted claims are plainly meritless.
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Id. Finally, federal proceedings may not be stayed indefinitely, and reasonable time limits must
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be imposed on a petitioner’s return to state court to exhaust additional claims. Id. at 277-78.
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Here, petitioner included the ineffective assistance of counsel claim that he now
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wishes to exhaust in his original federal habeas petition. In this regard, the petition pending
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before the court is a “mixed” petition. Under the Rhines procedure outlined by the Supreme
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Court, this court has discretion to stay a “mixed” petition to allow a petitioner time to return to
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state court to present his unexhausted claim. However, based on the information petitioner has
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provided to the court in his objections, it is not clear that the granting of a stay and abeyance is
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appropriate in this case. Specifically, petitioner has not provided sufficient facts and information
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to satisfy the requirements of Rhines. For example, the court is unable to determine whether
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petitioner had good cause for not exhausting all of his claims before filing this federal habeas
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action, whether petitioner’s unexhausted claim is potentially meritorious, or whether petitioner
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has been diligent in pursuing his unexhausted claim.
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In the interest of justice, the court will grant petitioner additional time to file a
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renewed motion for a stay and abeyance. Petitioner is advised that any renewed motion must (1)
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show good cause for petitioner’s failure to exhaust his ineffective assistance of counsel claim
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before filing this action, (2) demonstrate why his unexhausted claim is potentially meritorious,
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(3) describe the status of any state court proceedings on the unexhausted claim, and (4)
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demonstrate that petitioner has acted diligently in pursuing his unexhausted claim.
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CONCLUSION
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. The court’s August 2, 2011 findings and recommendations are vacated;
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2. Petitioner’s motion for a stay and abeyance (Doc. No. 2) is denied as moot; and
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3. Petitioner is granted thirty days from the date of this order in which to file a
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renewed motion for a stay and abeyance addressing the issues set forth above.
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DATED: August 23, 2011.
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broo1637.vac
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