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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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DANIEL LLOYD HOWARD,

Case No. 16-cv-4759-NJV (PR)

Petitioner,
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ORDER GRANTING MOTION TO
STAY AND ADMINISTRATIVELY
CLOSING CASE

v.
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United States District Court
Northern District of California

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PEOPLE OF THE STATE OF
CALIFORNIA,

Dkt. Nos. 10, 13

Respondent.

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Petitioner, a California prisoner, proceeds with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner originally filed a motion for stay but no petition. The

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motion for a stay was dismissed with leave to amend and petitioner was ordered to file a petition.

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He has now filed an amended petition which contains a motion to stay. (Doc. 13.)I

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BACKGROUND
Petitioner was found guilty of one count of first degree murder, one count of conspiracy to

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commit murder, two counts of attempted murder, one count of criminal threats, and one count of

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kidnapping. People v. Howard, No. A139179, 2015 WL 7736634, at *1 (Cal. Ct. App. Nov. 30,

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2015). The California Court of Appeal affirmed the two counts of attempted murder, the count of

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criminal threats, and the kidnapping count. Id. at 24. The court reversed the first degree murder

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and the conspiracy to commit murder convictions. Id. The court stated that if the prosecution

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elects not to retry the first degree murder charge, the judgment will be modified to be a second

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degree murder conviction. The case was remanded to the trial court to either retry the charges or

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modify the judgment. Id. The California Supreme Court denied the petition for review on March

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9, 2016. It is not clear if petitioner will be retried on the murder and conspiracy counts.

DISCUSSION

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Standard of Review

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This court may entertain a petition for writ of habeas corpus "in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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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.

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United States District Court
Northern District of California

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“‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real

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possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine,

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431 F.2d 688, 689 (1st Cir. 1970)).

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Legal Claims

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As grounds for federal habeas relief, petitioner asserts that: (1) the trial court’s denial of his

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motion to sever various counts violated due process; (2) the prosecution abused its discretion by

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joining various counts; (3) it was a due process violation to mandate retrial on the reversed counts;

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(4) appellate counsel was ineffective; (5) trial counsel was ineffective; (6) there was prosecutorial

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misconduct; and (7) the trial court abused its discretion by not hearing certain motions together.

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Plaintiff states that the first claim is exhausted but the remaining claims are unexhausted.

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In Rhines v. Weber, 544 U.S. 269 (2005) the United States Supreme Court found that a

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stay and abeyance of a mixed federal petition should be available only in the limited circumstance

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that good cause is shown for a failure to have first exhausted the claims in state court, that the

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claim or claims at issue potentially have merit and that there has been no indication that petitioner

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has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78.

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Liberally construing the motion, petitioner has shown good cause for his failure to exhaust

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the claims before filing this action, the claims do not appear patently meritless, and there does not

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appear to be any intentionally dilatory litigation tactic by petitioner. Petitioner is informed that
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before he may challenge either the fact or length of his confinement in a habeas petition in this

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court, he must present to the California Supreme Court any claims he wishes to raise in this Court.

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See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in federal habeas petition

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must be exhausted).
CONCLUSION

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1. Petitioner’s motion (Docket No. 10) is DENIED as moot.

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2. Petitioner’s motion for a stay (Docket No. 13) is GRANTED and this case is STAYED

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to allow petitioner to present his unexhausted claims in state court. If petitioner is not granted

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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:

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United States District Court
Northern District of California

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(1) Petitioner must diligently pursue his state court habeas proceedings; and

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(2) Petitioner must notify this court within thirty days after the state courts have completed

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their review of his claim or after they have refused review of his claims.

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If either condition of the stay is not satisfied, this Court may vacate the stay and act on this

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petition. See Rhines v. Webber, 544 U.S. 269, 278 (2005) (district court must effectuate timeliness

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concerns of AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.”).

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The Clerk shall administratively close this case. The closure has no legal effect; it is

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purely a statistical matter. The case will be reopened and the stay vacated upon notification by

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petitioner in accordance with section (3) above.

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4. Petitioner must keep the court informed of any change of address and must comply with

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the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for

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failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,

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104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: May 19, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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