Varnado v. Seibel et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/7/2018 RECOMMENDING 3 Motion to Stay be denied. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERION DEMONTA VERNADO,

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Petitioner,

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No. 2:17-CV-2413-TLN-CMK-P

vs.

FINDINGS AND RECOMMENDATIONS

KIMBERLY A. SEIBEL,

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Respondent.

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Petitioner, a state prisoner proceeding with retained counsel, brings this petition

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s

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motion for a stay-and-abeyance order (Doc. 3).

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In this case, the petition on file raises the following claims: (1) insufficient

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evidence – Claim I; (2) jury instruction error – Claim II; and (3) trial court evidentiary error –

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Claims III and IV. According to petitioner, these claims are all exhausted. Petitioner seeks a

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stay-and-abeyance order to allow him to exhaust a new claim of ineffective assistance of

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appellate counsel in failing to assert an argument relating to Proposition 57.

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The district court is not required to sua sponte consider stay and abeyance in the

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absence of a request from the petitioner, see Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir.

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2007), or to inform the petitioner that stay and abeyance may be available, see Brambles v.

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Duncan, 412 F.3d 1066, 1070-71 (9th Cir. 2005). When a stay-and-abeyance motion is filed,

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there are two approaches for analyzing the motion, depending on whether the petition is mixed or

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fully exhausted. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). If the petitioner seeks a

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stay-and-abeyance order as to a mixed petition containing both exhausted and unexhausted

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claims, the request is analyzed under the standard announced by the Supreme Court in Rhines v.

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Weber, 544 U.S. 269 (2005). See Jackson, 425 F.3d at 661. If, however, the petition currently

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on file is fully exhausted, and what petitioner seeks is a stay-and-abeyance order to exhaust

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claims not raised in the current federal petition, the approach set out in Kelly v. Small, 315 F.3d

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1063 (9th Cir. 2003), overruled on other grounds by Robbins, 481 F.3d 1143, applies. See

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Jackson, 425 F.3d at 661.

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Because the current petition on file is fully exhausted and petitioner seeks leave to

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exhaust a claim not currently raised in the petition, Kelly governs the court’s analysis. Under

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Kelly, the district court is required to “. . . consider the option of holding the exhausted petition

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in abeyance so that the petitioner would be able to exhaust his claims in state court before

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attempting to amend his federal petition to include the newly exhausted claims.” Jackson, 425

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F.3d at 661 (citing Kelly, 315 F.3d at 1070). Whether to exercise this option is within the

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discretion of the district court. See Kelly, 315 F.3d at 1070. However, the Ninth Circuit has

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recognized the “. . . clear appropriateness of a stay when valid claims would otherwise be

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forfeited.” Id. Moreover, a stay under such circumstances promotes comity by deferring the

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exercise of federal jurisdiction until after the state court has ruled. See id.

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In this case, petitioner has not demonstrated that there is a potential of the

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unexhausted claim being forfeited absent a stay-and-abeyance order. The instant federal petition

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appears to have been filed well within the one-year limitations period and whether any amended

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petition containing the new claim, once exhausted, would relate back to the filing date of the

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original petition is a matter not presently before the court. Moreover, petitioner does not outline

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any barriers which have prevented him from pursuing the unexhausted claim in state court up

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until now or whether he has in fact begun that process, and he does not require a stay-and-

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abeyance order from this court to do so.

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Based on the foregoing, the undersigned recommends that petitioner’s motion for
a stay-and-abeyance order (Doc. 3) be denied.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: August 7, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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