Ansley v. Foulk

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 8/1/2017 GRANTING 10 Motion to Withdraw as Attorney; DIRECTING Clerk to amend the docket to reflect petitioner's pro se status and update petitioner's address of record; DISCHARGING 7 Order to Show Cause; and ORDERING this case to remain administratively closed pending petitioner's exhaustion of state court remedies. Petitioner is ordered to file a motion to lift the stay within 30 days of any decision by the CA Supreme Court. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD ANSLEY, 12 No. 2:14-cv-2376 CKD (HC) Petitioner, 13 v. 14 FRED FOULK, 15 ORDER Respondent. 16 17 Petitioner is a California inmate proceeding through counsel with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is counsel’s 19 motion to withdraw as attorney of record for petitioner pursuant to Local Rule 182(d). ECF No. 20 10. Counsel brings this motion on the grounds that petitioner is in breach of his fee agreement. 21 Local Rule 182(d) provides that attorneys may not withdraw from an action in which they 22 have appeared, leaving the client in propria persona, without leave of the court upon noticed 23 motion and notice to the client and all other parties who have appeared. The Local Rule 24 incorporates the requirements for withdrawal and the Rules of Professional Conduct of the State 25 Bar of California. The Rules of Professional Conduct of the State Bar of California provide in 26 pertinent part: 27 28 A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to 1 1 the client, allowing time for employment of other counsel, complying with rule 3–700(D), and complying with applicable laws and rules. 2 3 California Rules of Professional Conduct, Rule 3–700(A)(2). Pursuant to California Rules of Professional Conduct, Rule 3–700(C), withdrawal is 4 5 permitted in certain specified circumstances. Specifically, Rule 3–700(C)(1)(f) permits 6 withdrawal where the client breaches an agreement or obligation to the attorney as to expenses or 7 fees. 8 9 Counsel has complied with the requirements of Local Rule 182(d) by notifying petitioner by letter sent via Federal Express that he would be filing a motion to withdraw. ECF No. 10 at 4- 10 5. According to counsel, petitioner acknowledged receipt of this letter in subsequent written 11 correspondence. See ECF No. 10 at 4. Counsel has also provided the court with plaintiff's 12 current or last known address. ECF No. 10 at 2. 13 Based on counsel’s representations to the court during the July 26, 2017 order to show 14 cause hearing, it appears that petitioner’s ineffective assistance of counsel claim remains 15 unexhausted in state court. In light of this court’s ruling on counsel’s motion to withdraw, 16 additional time is warranted to allow petitioner to file a pro se habeas corpus petition in the 17 California Supreme Court concerning his allegations that his trial attorney was ineffective. Once 18 the California Supreme Court has ruled on petitioner’s habeas corpus application, then petitioner 19 is directed to file a “Motion to Lift the Stay” of his pending federal habeas corpus petition. Until 20 such time, this case will remain administratively closed. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Petitioner’s motion to withdraw as counsel of record, ECF No. 10, is granted; 23 2. The Clerk of Court is directed to amend the docket to reflect petitioner’s pro se status 24 and to update petitioner’s address of record to the following: Edward Ansley, C- 25 94688, California Men’s Colony, P.O. Box 8103, San Luis Obispo, CA 93409-8103; 26 3. This court’s May 30, 2017 order to show cause is discharged; 27 4. This case shall remain administratively closed pending petitioner’s exhaustion of state 28 court remedies with respect to his ineffective assistance of trial counsel claim; and, 2 1 2 3 5. Petitioner is ordered to file a motion to lift the stay within thirty days of any decision by the California Supreme Court. Dated: August 1, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 10 12/ansl2376.motiontowithdraw 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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