Howard v. People of the State of California

Filing 14

ORDER Granting Motion to Stay Case and Administratively Closing Case. Case stayed. Signed by Judge Nandor J. Vadas on 5/19/2017. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 5/19/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISON 7 8 DANIEL LLOYD HOWARD, Case No. 16-cv-4759-NJV (PR) Petitioner, 9 ORDER GRANTING MOTION TO STAY AND ADMINISTRATIVELY CLOSING CASE v. 10 United States District Court Northern District of California 11 12 PEOPLE OF THE STATE OF CALIFORNIA, Dkt. Nos. 10, 13 Respondent. 13 14 Petitioner, a California prisoner, proceeds with a petition for a writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. Petitioner originally filed a motion for stay but no petition. The 16 motion for a stay was dismissed with leave to amend and petitioner was ordered to file a petition. 17 He has now filed an amended petition which contains a motion to stay. (Doc. 13.)I 18 19 BACKGROUND Petitioner was found guilty of one count of first degree murder, one count of conspiracy to 20 commit murder, two counts of attempted murder, one count of criminal threats, and one count of 21 kidnapping. People v. Howard, No. A139179, 2015 WL 7736634, at *1 (Cal. Ct. App. Nov. 30, 22 2015). The California Court of Appeal affirmed the two counts of attempted murder, the count of 23 criminal threats, and the kidnapping count. Id. at 24. The court reversed the first degree murder 24 and the conspiracy to commit murder convictions. Id. The court stated that if the prosecution 25 elects not to retry the first degree murder charge, the judgment will be modified to be a second 26 degree murder conviction. The case was remanded to the trial court to either retry the charges or 27 modify the judgment. Id. The California Supreme Court denied the petition for review on March 28 9, 2016. It is not clear if petitioner will be retried on the murder and conspiracy counts. DISCUSSION 1 2 Standard of Review 3 This court may entertain a petition for writ of habeas corpus "in behalf of a person in 4 custody pursuant to the judgment of a State court only on the ground that he is in custody in 5 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. 6 Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading 7 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 8 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 9 must “specify all the grounds for relief available to the petitioner . . . [and] state the facts supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. 11 United States District Court Northern District of California 10 “‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real 12 possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 13 431 F.2d 688, 689 (1st Cir. 1970)). 14 Legal Claims 15 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court’s denial of his 16 motion to sever various counts violated due process; (2) the prosecution abused its discretion by 17 joining various counts; (3) it was a due process violation to mandate retrial on the reversed counts; 18 (4) appellate counsel was ineffective; (5) trial counsel was ineffective; (6) there was prosecutorial 19 misconduct; and (7) the trial court abused its discretion by not hearing certain motions together. 20 Plaintiff states that the first claim is exhausted but the remaining claims are unexhausted. 21 In Rhines v. Weber, 544 U.S. 269 (2005) the United States Supreme Court found that a 22 stay and abeyance of a mixed federal petition should be available only in the limited circumstance 23 that good cause is shown for a failure to have first exhausted the claims in state court, that the 24 claim or claims at issue potentially have merit and that there has been no indication that petitioner 25 has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78. 26 Liberally construing the motion, petitioner has shown good cause for his failure to exhaust 27 the claims before filing this action, the claims do not appear patently meritless, and there does not 28 appear to be any intentionally dilatory litigation tactic by petitioner. Petitioner is informed that 2 1 before he may challenge either the fact or length of his confinement in a habeas petition in this 2 court, he must present to the California Supreme Court any claims he wishes to raise in this Court. 3 See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition 4 must be exhausted). CONCLUSION 5 6 1. Petitioner’s motion (Docket No. 10) is DENIED as moot. 7 2. Petitioner’s motion for a stay (Docket No. 13) is GRANTED and this case is STAYED 8 to allow petitioner to present his unexhausted claims in state court. If petitioner is not granted 9 relief in state court, he may return to this court and ask that the stay be lifted. 3. The stay is subject to the following conditions: 11 United States District Court Northern District of California 10 (1) Petitioner must diligently pursue his state court habeas proceedings; and 12 (2) Petitioner must notify this court within thirty days after the state courts have completed 13 their review of his claim or after they have refused review of his claims. 14 If either condition of the stay is not satisfied, this Court may vacate the stay and act on this 15 petition. See Rhines v. Webber, 544 U.S. 269, 278 (2005) (district court must effectuate timeliness 16 concerns of AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.”). 17 The Clerk shall administratively close this case. The closure has no legal effect; it is 18 purely a statistical matter. The case will be reopened and the stay vacated upon notification by 19 petitioner in accordance with section (3) above. 20 4. Petitioner must keep the court informed of any change of address and must comply with 21 the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for 22 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 23 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 24 25 IT IS SO ORDERED. Dated: May 19, 2017 ________________________ NANDOR J. VADAS United States Magistrate Judge 26 27 28 3

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