Blount v. Soto

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 10/13/2016 ORDERING Document 19 shall be DISREGARDED. Petitioner must file an affidavit or declaration advising the court of the following, listed in this order; failure to submit an affidavit or declaration addressing these issues will result in a recommendation that the motion for stay be denied and the court will proceed with screening the third amended petition. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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REGINALD BLOUNT,

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No. 2:15-cv-1809 KJM AC P

Petitioner,

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v.

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J. SOTO,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding without counsel on an application for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.
I.

Procedural History
A couple of months after filing original and first amended petitions (ECF Nos. 1, 3),

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petitioner filed a motion for extension of time to file attachments that indicated he may also be

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seeking to raise additional constitutional issues. ECF No. 7. He was ordered to file a notice

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clarifying whether he sought to amend the petition and add additional grounds for relief or

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whether he was seeking to provide additional documents without adding new claims. ECF No. 8.

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Petitioner proceeded to file the required notice, stating that he intended to add both an additional

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claim and additional documentation to support his existing claims. ECF No. 9. Upon receiving

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the clarification from petitioner, the court granted his motion for extension. ECF No. 10.

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Petitioner then filed a letter asking whether he needed to ask for a stay or file a new petition. ECF
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No. 11. The court informed petitioner that it could not tell him what action to take or how to

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manage his case, and advised him of the procedures for requesting a stay under Rhines v. Weber,

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544 U.S. 269 (2005), and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). ECF No. 12. Petitioner

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was also advised of the consequences of including unexhausted claims in his amended petition.

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Id. Petitioner proceeded to file a second amended petition. ECF No. 13. He has also filed a

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document that appeared to be a copy of a California Supreme Court habeas petition (ECF No. 14)

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and a motion for extension of time (ECF No. 16).

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After reviewing the second amended petition, the court was unable to determine which

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portions were intended to state grounds for relief and which portions were intended as exhibits. It

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also appeared that petitioner was seeking a Rhines stay. ECF No. 13 at 7. To further complicate

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matters, petitioner also filed a document captioned for the California Supreme Court and labeled

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“Evidentiary Hearing Request at Federal Stage to Amend and Granted to File to Ex[h]aust.” ECF

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No. 14. Appended to the petition form were the same documents petitioner had attached to his

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second amended federal petition, minus some transcripts and the typed state habeas petitions. Id.

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It accordingly appeared that petitioner may have intended to file that document with the

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California Supreme Court, and had inadvertently filed it in this case. In his motion for extension

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of time, which was actually a request for a stay pending exhaustion of his state court remedies for

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his new claim, petitioner indicated that he had recently filed a petition in the California Supreme

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Court that was awaiting disposition. ECF No. 16. However, a review of the California Supreme

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Court’s online docket did not show any cases initiated by petitioner within the last year, making it

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appear more likely that the California Supreme Court petition at ECF No. 14 had been intended

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for that court. ECF No. 17 at 3.

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Because the court was unable to understand the grounds petitioner was asserting in his

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second amended petition, the petition was be dismissed with leave to amend. ECF No. 17. The

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court also disregarded the substantially identical document with the California Supreme Court

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caption (ECF No. 14) and denied the motion for extension (ECF No. 16). Petitioner was then

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directed to file a third amended petition and given instructions on the form of the petition and

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what he would need to show if he was requesting a stay. ECF No. 17 at 3-4.
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Petitioner has now filed a third amended petition (ECF No. 18) and has once again also

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filed a second, nearly identical petition captioned for the California Supreme Court (ECF No. 19).

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As with the previous petition captioned for the California Supreme Court, the petition at ECF

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No. 19 will be disregarded. It is unclear what petitioner intended by filing the state court

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petitions in this court, but if he is attempting to exhaust his state court remedies, he needs to

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file the state court petitions with the California Supreme Court, not with this court.

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Petitioner is reminded that he does not require permission from this court to file a petition in the

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California Supreme Court and if he is seeking to file something in the California Supreme Court,

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he should do so without delay.

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In reviewing petitioner’s third amended petition, it has come to the court’s attention that

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included with the petition is a motion for a stay pursuant to Rhines. ECF No. 18 at 7-8.

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Petitioner states that he seeks a stay under Rhines to exhaust his newly added claim of actual

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innocence. Id. Petitioner asserts that his actual innocence claim is based upon recently receiving

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two affidavits from the victim and a material witness in which they recant their trial testimony.

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Id. The affidavits state that the affiants lied on the stand at the direction of the district attorney

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and that the district attorney coerced them into lying by threatening to charge them with kidnap

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and assault of petitioner if they did not testify as he wanted. Id. at 202, 207. It appears that

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petitioner’s claim for actual innocence is in fact a claim of prosecutorial misconduct, as he asserts

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that he was the victim of “prosecutorial vindictiveness” and that his Sixth and Fourteenth

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Amendment rights were violated when the prosecution coerced and threatened the victim and

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witness to provide testimony against him and concealed their original, favorable testimony. Id. at

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5, 18-19, 99-109.

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In order to obtain a stay and abeyance of a mixed federal petition under Rhines, petitioner

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must show that (1) there is good cause for failing to have first exhausted the claims in state court,

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(2) that the claim or claims at issue potentially have merit, and (3) that there has been no

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indication that petitioner has intentionally delayed pursuing the litigation. 544 U.S. at 277-78.

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Petitioner asserts that he did not receive the affidavits until after all of his state court proceedings

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had concluded. ECF No. 18 at 5, 8. However, the victim and witness affidavits are both dated
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November 12, 2012 (id. at 204, 210), approximately two months after the conclusion of

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petitioner’s trial (id. at 1, 140-41). Before the undersigned can issue a recommendation on

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petitioner’s request for a Rhines stay, petitioner must provide the court with a sworn declaration

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or affidavit addressing the issues of good cause and intentional delay. Specifically, petitioner’s

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sworn statement must advise the court of the following:

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1. When did petitioner first become aware of Avery Blount and David Beckhorn’s

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affidavits?

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2. When did petitioner first come into possession of the affidavits?

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3. Who was in possession of the affidavits before petitioner received them and what

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happened to the affidavits after they were signed in 2012?

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4. If there was any delay between when petitioner found out about the affidavits and

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when he received them, what was the cause of the delay and what steps did petitioner

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take to obtain the affidavits?

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If petitioner does not file an affidavit or declaration addressing these items, the court will

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recommend denial of his motion for stay and proceed to screen the third amended petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The document at ECF No. 19 shall be disregarded.

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2. Petitioner must file an affidavit or declaration advising the court of the following:

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a. When did petitioner first become aware of Avery Blount and David Beckhorn’s

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affidavits?

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b. When did petitioner first come into possession of the affidavits?

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c. Who was in possession of the affidavits before petitioner received them and what

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happened to the affidavits after they were signed in 2012?

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d. If there was any delay between when petitioner found out about the affidavits and

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when he received them, what was the cause of the delay and what steps did

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petitioner take to obtain the affidavits?

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3. Failure to submit an affidavit or declaration addressing these issues will result in a

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recommendation that the motion for stay be denied and the court will proceed with screening the

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third amended petition.

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DATED: October 13, 2016

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