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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD ANSLEY,

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No. 2:14-cv-2376 CKD (HC)

Petitioner,

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v.

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FRED FOULK,

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ORDER

Respondent.

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Petitioner is a California inmate proceeding through counsel with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Currently pending before the court is counsel’s

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motion to withdraw as attorney of record for petitioner pursuant to Local Rule 182(d). ECF No.

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10. Counsel brings this motion on the grounds that petitioner is in breach of his fee agreement.

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Local Rule 182(d) provides that attorneys may not withdraw from an action in which they

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have appeared, leaving the client in propria persona, without leave of the court upon noticed

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motion and notice to the client and all other parties who have appeared. The Local Rule

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incorporates the requirements for withdrawal and the Rules of Professional Conduct of the State

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Bar of California. The Rules of Professional Conduct of the State Bar of California provide in

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pertinent part:

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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
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the client, allowing time for employment of other counsel,
complying with rule 3–700(D), and complying with applicable laws
and rules.

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California Rules of Professional Conduct, Rule 3–700(A)(2).
Pursuant to California Rules of Professional Conduct, Rule 3–700(C), withdrawal is

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permitted in certain specified circumstances. Specifically, Rule 3–700(C)(1)(f) permits

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withdrawal where the client breaches an agreement or obligation to the attorney as to expenses or

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fees.

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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-

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5. According to counsel, petitioner acknowledged receipt of this letter in subsequent written

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correspondence. See ECF No. 10 at 4. Counsel has also provided the court with plaintiff's

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current or last known address. ECF No. 10 at 2.

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Based on counsel’s representations to the court during the July 26, 2017 order to show

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cause hearing, it appears that petitioner’s ineffective assistance of counsel claim remains

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unexhausted in state court. In light of this court’s ruling on counsel’s motion to withdraw,

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additional time is warranted to allow petitioner to file a pro se habeas corpus petition in the

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California Supreme Court concerning his allegations that his trial attorney was ineffective. Once

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the California Supreme Court has ruled on petitioner’s habeas corpus application, then petitioner

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is directed to file a “Motion to Lift the Stay” of his pending federal habeas corpus petition. Until

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such time, this case will remain administratively closed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to withdraw as counsel of record, ECF No. 10, is granted;

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2. The Clerk of Court is directed to amend the docket to reflect petitioner’s pro se status

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and to update petitioner’s address of record to the following: Edward Ansley, C-

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94688, California Men’s Colony, P.O. Box 8103, San Luis Obispo, CA 93409-8103;

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3. This court’s May 30, 2017 order to show cause is discharged;

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4. This case shall remain administratively closed pending petitioner’s exhaustion of state

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court remedies with respect to his ineffective assistance of trial counsel claim; and,
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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

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12/ansl2376.motiontowithdraw

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