Steele v. Katavich

Filing 41

ORDER signed by District Judge Troy L. Nunley on 10/4/2017 FINDINGS AND RECOMMENDATIONS 32 are ADOPTED in FULL; Petitioner's 29 Motion to Stay is DENIED; Respondent's 11 Motion to Dismiss is GRANTED; Petitioner's 4 petition fo r a writ of habeas corpus is DISMISSED; within 30 days from the date this order is entered, Petitioner is directed to file an amended petition raising only his exhausted claims (7), (8), and (11); The Court DECLINES to issue the certificate of appealability; and Petitioner's 39 4/20/2017 motion is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUSTIN STEELE,

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No. 2:15-cv-01836-TLN-KJN
Petitioner,

v.

ORDER

JOHN N. KATAVICH, Warden,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed this application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On January 5, 2017, the magistrate judge filed findings and recommendations herein

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which were served on all parties and which contained notice to all parties that any objections to

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the findings and recommendations were to be filed within fourteen days. Petitioner has filed

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objections to the findings and recommendations, as well as various other documents.

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Petitioner contends that he timely filed his motion for stay. (ECF No. 37.) However,

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Petitioner incorrectly relies on Rule 26(a)(2) of the Federal Rules of Appellate Procedure, (ECF

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No. 37 at 1-2), which governs filings in the United States Court of Appeals for the Ninth Circuit.

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Filings in this Court are governed by Rule 6 of the Federal Rules of Civil Procedure. In any

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event, the undersigned need not determine whether or not Petitioner’s motion to stay this action
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was timely brought because the magistrate judge also found that the motion should be denied on

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the merits. Petitioner argues that in his haste to file his motion, he left out “crucial evidence” on

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which Petitioner relies. (ECF No. 37 at 2.) Petitioner now provides a copy of his appellate

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counsel’s August 21, 2013, and June 25, 2014, letters, and again argues that counsel “incorrectly”

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instructed Petitioner “on where to file [a] habeas petition.” (ECF Nos. 37 at 4; 40 at 3.)

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However, in the June 25, 2014 letter, appellate counsel informed Petitioner that if he

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chose to file a federal habeas petition, the deadline to do so was September 10, 2015, and that he

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must write to the District Court, 501 “I” Street, Ste. 4-200, Sacramento, CA 95814, to obtain

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“2254 petition” and “in forma pauperis” forms. (ECF No. 37 at 9-10.) Such information is

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accurate, and the deadline comports with the September 10, 2015, statute of limitations deadline

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properly calculated by the magistrate judge. (ECF No. at 6 n.3.) Moreover, counsel’s letters

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confirm that Petitioner cannot demonstrate good cause under Pace v. DiGuglielmo, 544 U.S. 408,

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416-17 (2005) or Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008). Such letters demonstrate

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that: (1) Petitioner received a copy of the opening brief filed by appellate counsel; (2) appellate

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counsel explained to Petitioner why counsel raised the issues he did, and did not raise others; (3)

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counsel informed Petitioner that the California Supreme Court denied review on June 11, 2014;

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(4) counsel properly informed Petitioner how to obtain a habeas form from this Court, including

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the Court’s correct address; and (5) properly informed Petitioner that the deadline for filing the

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federal petition was September 10, 2015, which Petitioner reiterated in his initial filing in this

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Court. (ECF No. 37 at 5–10.) Thus, appellate counsel did not improperly advise Petitioner.

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To the extent Petitioner contends that appellate counsel failed to inform Petitioner that he

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could avail himself of collateral challenges through petitions for writs of habeas corpus in state

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court, such allegation does not demonstrate good cause.

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But even assuming Petitioner could demonstrate good cause, he fails to demonstrate

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diligence. As the magistrate judge noted, on January 28, 2016, Petitioner claimed he needed an

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additional sixty days in which to file his habeas petition in state court to exhaust all of his state

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court remedies. (ECF No. 15 at 2.) Petitioner had not filed a state court habeas petition as of

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January 4, 2017. (ECF No. 32 at 4.) On April 27, 2017, state court records reflect that Petitioner
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did not file a state habeas corpus petition until April 2, 2017, when he filed three state habeas

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petitions in the Sacramento County Superior Court in Case No. 17HC00137. Thus, Petitioner

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waited over two years and nine months between June 11, 2014, when the California Supreme

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Court denied the petition for review, and the date he filed his first state court petition for writ of

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habeas corpus. Such delay demonstrates Petitioner’s lack of diligence.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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Finally, on April 20, 2017, Petitioner filed a motion styled “Notice of motion to set aside

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default and default judgment memorandum.” (ECF No. 39.) No default or default judgment has

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been entered, but it appears that Petitioner attempts to explain his delay in filing objections.

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Because Petitioner’s objections have been considered, petitioner’s motion is unnecessary and is

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denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed January 5, 2017, are ADOPTED in full;

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2. Petitioner’s motion for stay (ECF No. 29) is DENIED;

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3. Respondent’s motion to dismiss (ECF No. 11) is GRANTED;

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4. Petitioner’s petition for a writ of habeas corpus (ECF No. 4) is DISMISSED;

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5. Within thirty days from the date this order is entered, Petitioner is directed to file an

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amended petition raising only his exhausted claims (7), (8), and (11). Petitioner is cautioned that

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failure to file such amended petition will result in a recommendation that this action be dismissed.

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Rose v. Lundy, 455 U.S. 509 (1982);

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6. The Court declines to issue the certificate of appealability referenced in 28 U.S.C.
§ 2253; and
7. Petitioner’s April 20, 2017 motion (ECF No. 39) is DENIED.
Dated: October 4, 2017

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Troy L. Nunley
United States District Judge