Brown v. Madden

Filing 17

Order by Magistrate Judge Robert M. Illman granting 13 Motion to Stay. (Attachments: # 1 Certificate/Proof of Service)(rmilc1s, COURT STAFF) (Filed on 11/29/2017)

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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-RMI (PR) Petitioner, 9 v. 10 11 WARDEN RAYMOND MADDEN, United States District Court Northern District of California Respondent. ORDER GRANTING MOTION TO STAY AND ADMINISTRATIVELY CLOSING CASE Dkt. No. 13 12 13 14 Petitioner, a state prisoner, filed a pro se writ of habeas corpus pursuant to 28 U.S.C. § 15 2254. The court denied Petitioner’s first amended motion to stay with leave to amend. (Doc. 12.) 16 He has filed a second amended motion to stay and an amended petition. (Doc. 13.) 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)). 9 10 Legal Claims As grounds for federal habeas relief, petitioner asserts that: (1) the trial court committed United States District Court Northern District of California 11 misconduct in questioning several witnesses; (2) there were improper jury instruction; (3) his 12 sentence violates the Eighth Amendment; (4) trial counsel was ineffective for failing to address the 13 improper jury instruction; (5) trial counsel was ineffective for not objecting to the trial court’s ex 14 parte meeting and not performing an adequate pretrial investigation; (6) there was a Brady 15 violation; and (7) appellate counsel was ineffective for failing to raise several issues. Docket No. 16 13 at 6, 37-38. 17 Petitioner indicates that the first four claims are exhausted but the remaining claims are 18 unexhausted. Petitioner seeks a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) to exhaust 19 the remaining claims. Liberally construing the motion, petitioner has shown good cause for his 20 failure to exhaust the claims before filing this action, the claims do not appear patently meritless, 21 and there do not appear to be any intentionally dilatory litigation tactics by petitioner. Petitioner 22 is informed that before he may challenge either the fact or length of his confinement in a 23 habeas petition in this court, he must present to the California Supreme Court any claims he 24 wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim 25 raised in federal habeas petition must be exhausted). 26 27 28 CONCLUSION 1. Petitioner’s motion for a stay (Docket No. 13) is GRANTED and this case is STAYED to allow petitioner to present his unexhausted claims in state court. If petitioner is not granted 2 1 relief in state court, he may return to this court and ask that the stay be lifted. 2 2. The stay is subject to the following conditions: 3 (1) Petitioner must diligently pursue his state court habeas proceedings; and 4 (2) Petitioner must notify this court within thirty days after the state courts have completed 5 6 their review of his claim or after they have refused review of his claims. If either condition of the stay is not satisfied, this Court may vacate the stay and act on this 7 petition. See Rhines, 544 U.S. at 278 (district court must effectuate timeliness concerns of 8 AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.”). 9 The Clerk shall administratively close this case. The closure has no legal effect; it is purely a statistical matter. The case will be reopened and the stay vacated upon notification by 11 United States District Court Northern District of California 10 petitioner in accordance with section (2) above. 12 3. Petitioner must keep the court informed of any change of address and must comply with 13 the court's orders in a timely fashion. Failure to do so may result in the dismissal of this action for 14 failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v. Johnson, 15 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases). 16 17 IT IS SO ORDERED. Dated: November 29, 2017 ________________________ ROBERT M. ILLMAN United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 3

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