Ayobi v. Espinosa

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 1/10/18 GRANTING 7 Motion to Proceed IFP and DENYING 8 Motion to Stay and abey this action. Petitioner shall, within thirty days after service of this order, file an amended petition for writ of habeas corpus on the form provided herewith and subject to the requirements set forth herein; petitioner may attach pertinent exhibits or request that the court electronically attach the exhibits she included with her original petition. Petitioner may also, within thirty days after service of this order, file a renewed request to stay and abey this action pending the exhaustion of her unexhausted claim(s) in the California Supreme Court. The Clerk of Court is directed to send petitioner, together with a copy of this order:(1) the courts form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,and (2) a complete copy of the original petition 1 . (Plummer, M) Modified on 1/10/2018 (Plummer, M).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAJIA AYOBI, 12 Petitioner, 13 14 No. 2:17-cv-02349 AC P v. ORDER ESPINOSA, Warden, 15 Respondent. 16 Petitioner is a state prisoner attempting to pursue a petition for writ of habeas corpus 17 18 under 28 U.S.C. § 2254, to challenge her 2013 murder conviction. By order filed November 16, 19 2017, this court directed petitioner to submit an updated application to proceed in forma pauperis 20 and an amended petition for writ of habeas corpus.1 See ECF Nos. 4, 6 (extending time). Examination of the in forma pauperis application reveals that petitioner is unable to afford 21 22 the costs of suit. Accordingly, her application to proceed in forma pauperis, ECF No. 7, will be 23 24 25 26 27 28 1 The court reasoned, ECF No. 4 at 1-2 (fn. omitted): [T]he petition is not set forth on the form used in this district for seeking a writ of habeas corpus and, more importantly, appears improperly to challenge the ruling of the Superior Court on collateral review. Petitioner must exhaust her claims in the California Supreme Court before bringing them in federal court. While it may be that petitioner exhausted her claims in the California Supreme Court on direct review, see e.g. ECF No. 1 at 22, this is not clear from the present petition. 1 1 granted. See 28 U.S.C. § 1915(a). 2 Petitioner has not yet filed an amended federal petition for writ of habeas corpus but 3 instead filed a motion to stay this action under Rhines v. Weber, 544 U.S. 269 (2005), pending 4 petitioner’s exhaustion of her Brady claim in the California Supreme Court. See Brady v. 5 Maryland, 373 U.S. 83 (1963). Petitioner states that this claim “has been filed” in the California 6 Supreme Court, see ECF No. 8 at 2 (averred on December 28, 2017), although review of 7 petitioner’s cases before that court indicates that her recent claim may have been resolved by the 8 date she filed her motion to stay and abey.2 9 Petitioner’s initial federal petition appears to allege both exhausted and unexhausted 10 claims. See e.g. ECF No. 1 at 26 (wherein petitioner noted that she had not presented to the 11 California Supreme Court her claims of “Ineffective Trial Attorney. Ineffective Appellate 12 Attorney.”). A federal habeas corpus petition that includes both exhausted and unexhausted 13 claims is a “mixed” petition subject to dismissal. See Rhines, 544 at 273. However, a district 14 court may stay a mixed petition in “limited circumstances,” specifically, when (1) petitioner 15 demonstrates good cause for failure to first exhaust the claim(s) in the state courts, (2) the 16 claim(s) at issue are potentially meritorious, and (3) petitioner has not been dilatory in pursuing 17 the litigation. Id. at 277-78. Here petitioner states that she previously failed to exhaust her Brady 18 claim due to the ineffectiveness of her defense counsel. She states that the Assistant District 19 Attorney made an admission on the record of his Brady violation, demonstrating the potential 20 merit of this claim. See ECF No. 8 at 2. Petitioner does not, however, inform the court when she 21 learned of this potential claim and whether she has acted diligently. 22 2 23 24 25 26 27 28 Review of petitioner’s cases filed in the California Supreme Court indicates that she filed a petition for writ of habeas corpus on August 3, 2017, which was denied on October 18, 2017 (contents are not available online). See Cal. S. Ct. Case No. S243574. The only other case filed by petitioner in the California Supreme Court was a petition for review, following a decision by the Third District California Court of Appeal. See Cal. S. Ct. Case No. S227090. See http://appellatecases.courtinfo.ca.gov/search.cfm?dist=0 . This court may take judicial notice of its own records and the records of other courts. See United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). 2 1 This court is unable to assess the merits of petitioner’s stay request due to her failure to 2 file an amended petition. See n.1, supra. If petitioner’s Brady claim has now been exhausted, she 3 must say so in an amended petition. An amended petition should also clearly identify and provide 4 supporting information for petitioner’s previously exhausted claims. Accordingly, the court will 5 deny the instant stay request without prejudice to petitioner filing a new request together with an 6 amended petition for writ of habeas corpus. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. Petitioner’s application to proceed in forma pauperis in this action, ECF No. 7, is 9 10 11 12 granted. 2. Petitioner’s motion to stay and abey this action, ECF No. 8, is denied without prejudice. 3. Petitioner shall, within thirty days after service of this order, file an amended petition 13 for writ of habeas corpus on the form provided herewith and subject to the requirements set forth 14 herein; petitioner may attach pertinent exhibits or request that the court electronically attach the 15 exhibits she included with her original petition. 16 4. Petitioner may also, within thirty days after service of this order, file a renewed request 17 to stay and abey this action pending the exhaustion of her unexhausted claim(s) in the California 18 Supreme Court. 19 20 21 5. Petitioner’s failure to timely comply with this order will result in a recommendation that this action be dismissed without prejudice. 6. The Clerk of Court is directed to send petitioner, together with a copy of this order: 22 (1) the court’s form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, 23 and (2) a complete copy of the original petition (ECF No. 1). 24 DATED: January 10, 2018 25 26 27 28 3

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