Adams v. Cash

Filing 8

ORDER signed by Magistrate Judge Allison Claire on 9/10/2013 GRANTING petitioner's 6 request to stay pending exhaustion of ground one of the instant petition; petitioner must inform the court within 30 days of the decision by the State Supreme Court regarding the pending petition; and the Clerk shall administratively close this case. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CORY ADAMS,

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No. 2:13-cv-1712 AC P
Petitioner,

v.

ORDER

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BRENDA M. CASH, Warden,

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Respondent.

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Petitioner, a state prisoner proceeding with retained counsel, has filed a petition for a writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has paid the filing fee. Petitioner has

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also consented to the jurisdiction of the undersigned. ECF No. 7. The petition challenges

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petitioner’s 2009 conviction for child sexual abuse on the following grounds: (1) ineffective

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assistance of trial counsel; and (2) due process violation by the exclusion of defense expert

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testimony on the key trial issue. Id. at 21-33.

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Petitioner has filed a motion for a stay and abeyance. ECF No. 6. On the date the instant

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federal petition was filed, August 21, 2013, only ground two was exhausted. Petitioner informs

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the court that a habeas petition was filed in the California Supreme Court on or about August 19,

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2013, presenting the allegations of ground one: that trial counsel rendered ineffective assistance,

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in violation of the Sixth Amendment, by failing to call a qualified expert regarding the physical

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symptoms of child abuse. Petitioner seeks a stay of the instant petition pending exhaustion of
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ground one, pursuant to Rhines v. Webber, 544 U.S. 269 (2005). Under Rhines, the district court

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may stay a habeas petition containing both exhausted and unexhausted claims pending further

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exhaustion. Id. at 277. It would be an abuse of discretion to deny a stay where the petitioner had

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good cause for the failure to previously exhaust, the unexhausted claims are potentially

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meritorious, and there is no indication that petitioner has been intentionally dilatory in pursuing

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the litigation. Rhines, supra, at 277-78.

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Petitioner has sufficiently satisfied these criteria. He has proffered facts demonstrating

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that he acted diligently in seeking a new trial on ineffective assistance grounds immediately

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following his conviction. The trial court denied the new trial motion on grounds that petitioner

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had not presented an expert witness qualified in the physical symptoms of child abuse.

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Appointed appellate counsel challenged the denial of the new trial motion, but failed to seek

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expansion of his appointment or otherwise address the failure of proof regarding available expert

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witness testimony. On conclusion of appeal, petitioner retained habeas counsel in a reasonably

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diligent effort to pursue collateral relief in state and federal court. Habeas counsel promptly

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pursued, for the first time, development of the necessary expert opinion. This procedural history

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demonstrates cause for the failure to previously exhaust the claim. The claim is not plainly

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meritless.1 Nor, as petitioner notes, has there been any finding as yet of procedural default.

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Martinez v. Ryan, 132 S. Ct. 1309, 1316 (2012). Finally, the state Supreme Court habeas petition

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has already been filed.

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The court finds a stay warranted pending exhaustion of ground one in state court.

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Accordingly, IT IS ORDERED that:

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1. Petitioner’s request for a stay (ECF No. 6), pending exhaustion of ground one of the

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instant petition, is granted;

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2. Petitioner must inform the court within thirty days of the decision by the state Supreme

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Court regarding the pending petition exhausting ground one, the ineffective assistance of counsel

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According to petitioner, as a result of a complaint he filed against his trial attorney with the
California State Bar, petitioner was determined “to be owed $30,000, in part because of [his
attorney’s] failure to perform sufficient investigation.” Petition at 19.
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claim; and

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3. The Clerk of the Court is directed to administratively close this case.
DATED: September 10, 2013

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AC:009
adam1712.ord

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