Brown v. Madden
Filing
12
Order by Judge Nandor J. Vadas denying 10 Amended Motion to Stay and Dismissing Amended Petition with leave to amend. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 9/26/2017)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
EUREKA DIVISON
7
8
JERRY BROWN,
Case No. 17-cv-2691-NJV (PR)
Petitioner,
9
v.
10
11
WARDEN RAYMOND MADDEN,
United States District Court
Northern District of California
Respondent.
ORDER DENYING AMENDED
MOTION TO STAY, DISMISSING
PETITION AND GRANTING LEAVE
TO AMEND
Dkt. No. 10
12
13
14
Petitioner, a state prisoner, filed a pro se petition for writ of habeas corpus pursuant to 28
15
U.S.C. § 2254. The court dismissed Petitioner’s original and amended motions to stay. (Docs. 7,
16
9.) He has filed a first amended motion to stay. (Doc. 10.)
17
BACKGROUND
18
Petitioner was found guilty of various sexual related offenses. People v. Brown, No.
19
A139357, 2015 WL 7572482, at *1 (Cal. Ct. App Nov. 25, 2015). He was sentenced to a
20
determinate term of 37 years and a consecutive indeterminate term of life imprisonment with the
21
possibility of parole. Id. His conviction was affirmed on direct appeal by the California Court of
22
Appeal and the California Supreme Court denied a petition for review. Id.; People v. Brown, No.
23
S231288 (Feb. 3, 2016).
DISCUSSION
24
25
Standard of Review
26
This court may entertain a petition for writ of habeas corpus "in behalf of a person in
27
custody pursuant to the judgment of a State court only on the ground that he is in custody in
28
violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v.
1
Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading
2
requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of
3
habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court
4
must “specify all the grounds for relief available to the petitioner . . . [and] state the facts
5
supporting each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
6
“‘[N]otice’ pleading is not sufficient, for the petition is expected to state facts that point to a ‘real
7
possibility of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine,
8
431 F.2d 688, 689 (1st Cir. 1970)).
Legal Claims
9
The original habeas petition filed in this court asserted that: (1) the trial court committed
10
United States District Court
Northern District of California
11
misconduct in questioning several witnesses; (2) there were improper jury instruction; (3)
12
petitioner's sentence violates the Eighth Amendment; (4) counsel was ineffective for failing to
13
address the improper jury instruction; and (5) counsel was ineffective for not objecting to the trial
14
court’s misconduct while questioning several witnesses. It was not clear what claims had been
15
exhausted and what claims petitioner was seeking to exhaust. 1 (Doc. 1.) The court denied
16
petitioner's motion to stay with leave to amend to provide more information. The court described
17
the manner to request a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) or Kelly v. Small,
18
315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). Petitioner’s
19
amended motion for stay was missing the referenced attachments so petitioner has filed a first
20
amended motion to stay with a proposed petition. (Docs. 10, 11.)
Petitioner’s first amended petition raises different claims and contends that: (1) there was a
21
22
Brady violation; (2) counsel was ineffective for failing to object to ex parte meetings between the
23
trial court, prosecutor and four jurors; (3) counsel was ineffective for failing to perform an
24
adequate pretrial investigation; and (4) appellate counsel was ineffective for failing to raise several
25
26
27
28
1
The claims presented to the California Court of Appeal were that the trial court erred by: (1)
questioning petitioner and his wife when they testified; (2) instructing the jury it could use a
finding that petitioner fled the scene of a crime to indicate his awareness of guilt; (3) imposing a
sentence that was cruel and unusual; and (4) imposing an excessive restitution find. Brown, 2015
WL 7572482, at *1
2
1
issues. (Doc. 11.) Petitioner does not indicate if any of these claims were exhausted but they all
2
appear to be unexhausted. Petitioner has not raised claims from the original petition and it is not
3
clear if seeks relief for those claims or to dismiss them.
4
In his amended motion to stay, petitioner states that he wishes to proceed with a King/Kelly
stay. However, “[p]ursuant to the Kelly procedure, (1) a petitioner amends his petition to delete
6
any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted
7
petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted
8
claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims
9
to the original petition.” King v. Ryan, 564 F.3d at 1134 (citing Kelly, 315 F.3d at 1070-71).
10
Petitioner has failed to follow this procedure and instead appears to bring a fully unexhausted
11
United States District Court
Northern District of California
5
petition. Therefore, the first amended motion to stay is denied and first amended petition is
12
dismissed with leave to amend for petitioner to file a second amended motion to stay and second
13
amended petition. Petitioner may choose to proceed pursuant to either Rhines or King/Kelly.
14
In Rhines the United States Supreme Court found that a stay and abeyance of a mixed
15
federal petition should be available only in the limited circumstance that good cause is shown for a
16
failure to have first exhausted the claims in state court, that the claim or claims at issue potentially
17
have merit and that there has been no indication that petitioner has been intentionally dilatory in
18
pursuing the litigation. Rhines, supra, at 277-78. If petitioner wishes to stay this action
19
pursuant to Rhines, he shall file a motion addressing the Rhines factors and file an amended
20
petition that identifies all the claims he wishes to proceed with and he must identify which
21
claims are already exhausted and which claims need to be exhausted.
22
In the alternative, petitioner may file a motion for a stay pursuant to the three-step
23
procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and King v. Ryan, 564 F.3d
24
1133 (9th Cir. 2009). A petitioner seeking to avail himself of the Kelly three-step procedure is not
25
required to show good cause, as under Rhines, but rather must show that the amendment of any
26
newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655
27
(2005), by sharing a “common core of operative facts” and Duncan v. Walker, 533 U.S. 167
28
(2001), by complying with the statute of limitations. King, 564 F.3d at 1141-43 (finding district
3
1
court’s dismissal of unexhausted claims was improper because petitioner was not required to show
2
good cause to avail himself of the Kelly three-part procedure but affirming the dismissal as
3
harmless because the unexhausted claims did not relate back to the claims in the original petition
4
that were fully exhausted at the time of filing). However, no statute of limitations protection is
5
imparted by such a stay, nor are exhausted claims adjudicated during the pendency of such a stay. 2
6
If petitioner wishes to seek a King/Kelly stay he must file a second amended petition and
7
delete any unexhausted claims and a file a motion for a stay stating he seeks a King/Kelly stay
8
and discussing how the amendment of any newly exhausted claims shares a common core of
9
operative facts as the exhausted claims and comply with the statute of limitations.
CONCLUSION
11
United States District Court
Northern District of California
10
1. The first amended motion for a stay (Doc. 10) is DENIED and proposed amended
12
petition (Doc. 11) is DISMISSED with leave to amend in accordance with the standards set forth
13
above. The second amended motion and petition must be filed within twenty-eight (28) days of
14
the date this order is filed and must include the caption and civil case number used in this order
15
and the words SECOND AMENDED MOTION and SECOND AMENDED PETITION on the
16
respective first pages of the documents.
17
2. Petitioner must keep the court informed of any change of address and must comply with
18
the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for
19
failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson,
20
104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).
IT IS SO ORDERED.
21
22
Dated: September 26, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge
23
24
25
2
26
27
28
Petitioner is cautioned that the habeas corpus statute imposes a one-year statute of limitations for
filing non-capital habeas corpus petitions in federal court. In most cases, the one year period will
start to run on the date on which the state court judgment became final by the conclusion of direct
review or the expiration of time for seeking direct review, although the statute of limitations is
tolled while a properly filed application for state post-conviction or other collateral review is
pending. 28 U.S.C. § 2244(d).
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?