Mcintosh v. Holder et al

Filing 241

TENTATIVE RULING & ORDER DIRECTING PETITIONER TO RESPOND. Signed by Judge Charles R. Breyer on 04/07/2017. (crblc2, COURT STAFF) (Filed on 4/7/2017)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 RONALD J. MCINTOSH, Plaintiff, 7 8 9 TENTATIVE RULING & ORDER DIRECTING PETITIONER TO RESPOND v. ERIC H. HOLDER JR., et al., Defendant. 10 United States District Court For the Northern District of California No. C09-00750 CRB / 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The Court has determined that the alleged suppression of triggerman Drax Quartermain’s history of mental illness is a timely, stand-alone claim for relief under Brady v. Maryland, 373 U.S. 83 (1963). See 28 U.S.C. § 2244(d)(1)(D). But because McIntosh never presented this claim in state court, it is unexhausted.1 See id. § 2254 (b)(1)(A). The Court has also determined that his other claims, whatever their merit, remain untimely. This leaves McIntosh with two options. First, he could voluntarily dismiss his new, unexhausted Brady claim, which would allow the Court to rule on his Rule 60(b) motion as to his other claims. See Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017). (The Court would deny that motion.) Second, he could move to stay and abey these proceedings while he exhausts state-court remedies.2 Id. (The Court would grant such a motion.) The Court ORDERS McIntosh to indicate within 30 days which of these two options he will pursue. IT IS SO ORDERED. Dated: April 7, 2017 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 25 26 27 1 28 2 The government has not waived the exhaustion requirement as to this claim. McIntosh may present to the state court not just his new claim but also new evidence regarding his remaining claims, subject of course to state-law procedural hurdles. See Cullen v. Pinholster, 563 U.S. 170, 206 (Breyer, J., concurring).

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