Owens v. People of the State of California et al

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/8/2016 RECOMMENDING that petitioner's 1/28/2016, letter 14 be denied to the extent it constitutes a motion for relief from judgment. Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNETH O. OWENS,

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No. 2:15-cv-01286 KJM GGH

Petitioner,
v.

FINDINGS & RECOMMENDATIONS

PEOPLE OF THE STATE OF
CALIFORNIA, et al.,
Respondents.
Petitioner, a state prisoner proceeding pro se, filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 and a motion for stay and abeyance on June 18, 2015. ECF

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Nos. 1, 2. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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On July 20, 2015, the undersigned (1) ordered petitioner to show cause why the petition

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should not be dismissed for failure to exhaust his state court remedies, and (2) recommended that

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his motion for stay and abeyance be denied. ECF No. 7. On August 3, 2015, petitioner filed

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objections to the findings and recommendations. ECF No. 9. In those objections petitioner

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conceded that his claims had not been exhausted, as they were pending before the California

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Courts of Appeal. Id. at 1. On October 8, 2015, the presiding district judge adopted the findings

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and recommendations and referred the matter back to the undersigned for resolution of the order

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to show cause. ECF No. 10. On October 19, 2015, the court recommended that the petition be
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dismissed without prejudice in light of petitioner’s concession that none of his claims had been

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exhausted. ECF No. 11. The court adopted the undersigned’s findings and recommendations on

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January 12, 2016. ECF No. 12.

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On January 28, 2016, petitioner filed a letter stating the following:
I’m responding to the judgment entered 1-12-16[.] I asked for a stay
of abeyance on 7-20-15 and which it was denied. I responded to the
denial and was dismissed without prejudice because I am still
exhausting my state remedies. So once I exhaust my state remedies
I can refile my habeas appeal? Because I wasn’t filing my habeas I
was asking for a stay of abeyance. So thank you and god bless.

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ECF No. 14. It is unclear what petitioner is requesting, if anything, from this filing. It is possible

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that petitioner is simply seeking clarification regarding the dismissal of his petition. In short, the

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court dismissed the petition because the petitioner has not exhausted his state court remedies.

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Petitioner seems to believe that his motion for stay and abeyance should have been granted.

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Motions for stay and abeyance, however, are filed in cases with habeas petitions raising a mixture

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of exhausted and unexhausted claims (known as mixed petitions). They allow a petitioner to

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pursue his unexhausted claims in state court while his exhausted claims remain stayed in federal

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court, ensuring they do not become barred by the Antiterrorism and Effective Death Penalty Act

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of 1996’s (AEDPA) statute of limitations. Rhines v. Weber, 544 U.S. 269, 277–78 (2005); see

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also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). As petitioner again concedes in the

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pending filing, none of his claims are exhausted. Accordingly, a motion for stay and abeyance

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simply does not apply to his petition at this point, as the totally unexhausted petition must be

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dismissed. Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). Petitioner may re-file his petition

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once his claims are exhausted, but he will receive no tolling on the AEDPA statute of limitations

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for filing this premature federal petition.

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To the extent petitioner is seeking relief from the court’s judgment, the court will

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recommend that the motion be denied. Motions for relief from judgment can be made on a

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variety of grounds, including:

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(1) mistake, inadvertence, surprise, or excusable neglect;

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(2) newly discovered evidence that, with reasonable diligence,
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could not have been discovered in time to move for a new trial
under Rule 59(b);

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(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

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(4) the judgment is void;

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(5) the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or

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(6) any other reason that justifies relief.

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Fed. R. Civ. P. 60(b). Petitioner has not asserted any of the aforementioned grounds for relief

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from judgment, much less made an argument establishing such relief is warranted.

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In accordance with the foregoing, THE COURT HEREBY RECOMMENDS that

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petitioner’s January 28, 2016, letter (ECF No. 14) be DENIED to the extent is constitutes a

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motion for relief from judgment.

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These findings and recommendations are submitted to the presiding United States District

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Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being

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served with these findings and recommendations, petitioner may file written objections with the

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court. Id.; see also Local Rule 304(b). Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158

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F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156–57 (9th Cir. 1991).

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Dated: February 8, 2016
/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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/GGH17; owen1286.recon

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