(HC) Abila v. Covello

Filing 5

ORDER signed by Magistrate Judge Kendall J. Newman on 08/02/22 DENYING 4 Motion to Stay. Petitioner is granted thirty days from the date of this order to file a renewed motion to stay and an amended petition raising his exhausted and unexhausted claims. The Clerk of the Court is directed to send petitioner the form for a habeas corpus petition pursuant to 28 U.S.C.§ 2254. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANGELO ALEX ABILA,

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No. 2: 22-cv-0264 KJN P

Petitioner,
v.

ORDER

P. COVELLO,
Respondent.

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Petitioner is a state prisoner, proceeding without counsel, with a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, petitioner’s motion to stay is

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denied without prejudice to filing a renewed motion to stay.

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The petition raises two claims: 1) the trial court imposed an illegal enhancement; and 2)

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the lawyer who represented petitioner during resentencing had a conflict of interest. (ECF No. 1.)

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Petitioner appears to claim that both of these claims are exhausted because they were presented in

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a habeas corpus petition filed in the California Supreme Court. (Id.) Petitioner also alleges that

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he has two habeas corpus petitions pending in the San Joaquin County Superior Court raising

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additional claims. (Id.)

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On March 22, 2022, the undersigned granted petitioner thirty days to inform the court

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whether he intended to proceed on his two exhausted claims only or if he requested a stay in order

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to exhaust the unexhausted claims raised in the habeas corpus petitions pending in the San
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Joaquin County Superior Court. (ECF No. 3.) In the March 22, 2020 order, the undersigned set

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forth the standards for stays pursuant to Rhines v. Weber, 544 U.S. 269 (2005), and Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2002). (Id.) A stay pursuant to Rhines is available only where

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(1) good cause is shown for petitioner’s failure to have exhausted all claims in state court prior to

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filing the federal petition; (2) the unexhausted claim or claims potentially have merit; and (3)

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there is no indication that petitioner has intentionally delayed pursuing the litigation. (Id.) In the

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March 22, 2022 order, the undersigned advised petitioner that if he sought a stay pursuant to

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Rhines, he shall file an amended petition containing both his exhausted and unexhausted claims

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within thirty days. (Id.)

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In response to the March 22, 2022 order, petitioner filed a motion to stay this action

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pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 4.) In the motion to stay, petitioner

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did not address the three factors set forth above required for a stay pursuant to Rhines. Petitioner

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also failed to file an amended petition raising all exhausted and unexhausted claims. For these

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reasons, petitioner’s motion to stay is denied without prejudice. Petitioner is granted thirty days

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from the date of this order to file a renewed motion to stay addressing the three Rhines factors set

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forth above. Within that time, petitioner shall also file an amended petition raising all of his

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exhausted and unexhausted claims.

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In the motion to stay, petitioner contends that he has a habeas corpus petition pending in

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the California Court of Appeal, no. C095665, raising all of his unexhausted claims. (Id.) The

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undersigned observes that records from California Court of Appeal case no. C095665 indicate

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that on June 6, 2022, the state appellate court remanded the matter to the San Joaquin Superior

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Court for consideration of a resentencing hearing. The June 6, 2022 order by the state appellate

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court also states, “The superior court may follow the procedure set forth in People v. Romero

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(1995) 8 Cal.4th 728, 740 fn.7, if the parties agree that petitioner’s remaining claims will become

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moot if petitioner receives a new sentencing hearing.”

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Based on the June 6, 2022 order by the California Court of Appeal, it appears that

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petitioner may have obtained some of the relief sought in the pending state court petitions and

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may no longer be pursuing several of the unexhausted claims discussed in the federal petition. In
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the renewed motion to stay and amended petition, petitioner shall clarify which claims he intends

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to pursue in this action.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to stay (ECF No. 4) is denied without prejudice;

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2. Petitioner is granted thirty days from the date of this order to file a renewed motion to

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stay and an amended petition raising his exhausted and unexhausted claims;

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3. The Clerk of the Court is directed to send petitioner the form for a habeas corpus

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petition pursuant to 28 U.S.C.§ 2254.
Dated: August 2, 2022

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