Mcintosh v. Holder et al
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
RONALD J. MCINTOSH,
TENTATIVE RULING & ORDER
DIRECTING PETITIONER TO
ERIC H. HOLDER JR., et al.,
United States District Court
For the Northern District of California
No. C09-00750 CRB
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
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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