Davidson v. Warden

Filing 24

ORDER signed by District Judge Garland E. Burrell, Jr on 11/21/17 ORDERING that the Petitioner's Motion for Stay is DENIED; the Court again ADOPTS in full the Findings and Recommendations recommending the DENIAL of the habeas corpus petition; the Clerk shall reinstate the Judgment entered on August 28, 2017, 20 , and CLOSE this case; and No Certificate of Appealability shall be granted. (Becknal, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARRINGTON DAVIDSON,

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No. 2:16-cv-00689-GEB-GGH

Petitioner,

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v.

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DAVID DAVEY,

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ORDER

Respondent.

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PROCEDURAL BACKGROUND

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On August 28, 2017, this court issued an Order adopting the Findings and
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Recommendations of the Magistrate Judge assigned to this case, to which petitioner had filed no
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objections, denying the petition for habeas corpus and directing the Clerk to close the case. ECF
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No. 19. Judgment was entered the same day. ECF No. 20. On September 18, 2017, petitioner
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moved for an extension of time to file objections explaining that he had been moved to a new
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prison at or about the time the Findings and Recommendations were issued and due to various
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rules at his new prison he could not gain access to the law library for the purpose of drafting
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objections. ECF No. 21.
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On October 11, 2017, the Magistrate Judge issued an Order to reopen the case and to grant
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petitioner until October 30, 2017, to file objections. ECF No. 22. Nothing was filed on

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October 30, 2017, but on November 3, 2017, petitioner filed a Motion to Stay the proceedings to

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allow him to exhaust state remedies for new claims. ECF No. 23.

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DISCUSSION
Petitioner was permitted to file objections. He has not presented any argument which

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would justify a change in this Court’s adoption of the Findings and Recommendations. Instead,

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petitioner presents an unjustified request to start all over by permitting him to commence

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exhaustion proceedings for supposed new claims.

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In his Motion to Stay, petitioner professes his desire to raise issues regarding the pre-trial

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police investigation of his case, the sufficiency of the evidence introduced at trial, and

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prosecutorial misconduct. In Rhines v. Weber, 544 U.S. 269 (1005), the Supreme Court

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permitted the district court to stay a federal habeas corpus petition to exhaust claims which had

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previously not been exhausted. To qualify for a stay under Rhines, however, the court held that a

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petitioner must: (1) show good cause for his failure to exhaust all his claims before filing this

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action; (2) explain and demonstrate how his unexhausted claim is potentially meritorious;

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(3) describe the status of any pending state court proceedings on his unexhausted claim; and

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(4) explain how he has diligently pursued his unexhausted claim. Rhines, 544 U.S. at 277–278.

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What constitutes good cause has not been precisely defined except to indicate at the outer

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end that petitioner must not have engaged in purposeful dilatory tactics, id., and that

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“extraordinary circumstances” need not be found. Jackson v. Roe, 425 F.3d 654, 661–62 (9th

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Cir. 2005); see also Rhines, 544 U.S. at 279 (Stevens, J., concurring) (the “good cause”

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requirement should not be read “to impose the sort of strict and inflexible requirement that would

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trap the unwary pro se prisoner”) (internal citation omitted); id. (Souter, J., concurring) (pro se

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habeas petitioners do not come well trained to address tricky exhaustion determinations).

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“But as the Jackson court recognized, we must interpret whether a petitioner has “good

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cause” for a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the

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district court should only stay mixed petitions in ‘limited circumstances.’ We also must be

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mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to
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exhaust their claims in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d

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1019, 1023-1024 (9th Cir. 2008), quoting Jackson, 425 F.3d at 661) (internal citations omitted).

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Recently, the Ninth Circuit stated that “a reasonable excuse, supported by evidence to justify a

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petitioner’s failure to exhaust,” will demonstrate good cause under Rhines. Blake v. Baker,

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745 F.3d 977, 982 (9th Cir. 2014).

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Petitioner here has not provided any “good cause” for why he did not act sooner even in

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the course of this action that was filed over two years ago. See ECF No. 1. Doing nothing more

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than identify claims, he does not put forth any argument regarding the merit that underlies his

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claims, nor does he attempt to show diligent efforts to pursue exhaustion. In essence, he does not

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even attempt to meet the requirements for stay and abeyance.

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CONCLUSON
In light of the foregoing, this court will not exercise discretion to grant a motion for stay
and abeyance in this case. IT IS THEREFORE ORDERED that:

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Petitioner’s Motion for Stay is DENIED;

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2.

The Court again adopts in full the Findings and Recommendations recommending

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the denial of the habeas corpus petition;
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The Clerk shall reinstate the Judgment entered on August 28, 2017, ECF No. 20,

and close this case; and

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4.

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IT IS SO ORDERED.

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No Certificate off Appealability shall be granted.

Dated: November 21, 2017

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