Fregia v. McDonald

Filing 13

ORDER TO STAY PROCEEDINGS AND ADMINISTRATIVELY CLOSE CASE 11 12 (Illston, Susan) (Filed on 5/19/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARK ANTHONY FREGIA,

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United States District Court
For the Northern District of California

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No. C 11-3595 SI (pr)

Petitioner,

ORDER TO STAY PROCEEDINGS
AND ADMINISTRATIVELY CLOSE
CASE

v.
MIKE McDONALD, warden,

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Respondent.
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INTRODUCTION

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Mark Anthony Fregia, an inmate at High Desert State Prison in Susanville, filed this pro

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se action for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action is now before

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the court for consideration of respondent's motion to dismiss for failure to exhaust state court

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remedies and Fregia's motion for a stay and abeyance. For the reasons discussed below, both

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motions will be granted and the action will be stayed to permit exhaustion of state court

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remedies.

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BACKGROUND

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Fregia was convicted in Contra Costa County Superior Court of two counts of murder,

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one count of attempted manslaughter, arson, mayhem, kidnapping and carjacking. He was

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sentenced to life in prison without the possibility of parole in February 2008. The California

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Court of Appeal affirmed the judgment of conviction in 2009 and the California Supreme Court

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denied his petition for review in 2010. Fregia then filed this action.

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The petition alleged that the trial court erred in denying the defense's Batson/Wheeler

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motions (Arguments I and II), and that his right to due process was violated by the prosecutor's

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misconduct (Arguments III and IV).

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respondent to show cause why the petition should not be granted.

The court found the claims cognizable and ordered

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Thereafter, Fregia filed a first amended habeas petition – actually, he filed two of them.

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He filed a first amended petition on November 14, 2011 (Docket # 9), and filed another

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document also labeled as a first amended petition on November 21, 2011 (Docket # 10). In a

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letter attached to the latter, Fregia explained that Docket # 10 was submitted to correct two errors

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he had made in Docket # 9, i.e., he had neglected to sign Docket # 9 and had misidentified a

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person on page 22 of the supporting brief. The operative pleading is now the first amended

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petition (Docket # 9), as amended by Docket # 10. The first amended petition repeated the

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claims from the original petition and added two new claims, i.e., a claim that the reasonable

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doubt standard of proof was diminished in violation of his right to due process and a claim that

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the felony murder instructions given at trial violated his right to due process.

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Respondent then moved to dismiss on the ground that state court remedies had not been

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exhausted. Specifically, respondent argued that state court remedies had not been exhausted for

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the two new claims in the first amended petition.

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Fregia filed an opposition to the motion to dismiss, and a motion for a stay and abeyance.

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Fregia did not dispute respondent's contention that he had not exhausted state court remedies for

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the two new claims in the first amended petition, and instead stated that he was attempting to

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exhaust them so they could be considered by this court. Respondent did not file an opposition

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to Fregia's motion for a stay and abeyance.

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DISCUSSION

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Prisoners in state custody who wish to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are required first to exhaust state

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judicial remedies, either on direct appeal or through collateral proceedings, by presenting the

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highest state court available with a fair opportunity to rule on the merits of each and every claim

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they seek to raise in federal court. See 28 U.S.C. § 2254(b), (c).

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The parties agree that Fregia has not exhausted state court remedies for the two new

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claims in the first amended petition, and agree that Fregia has a habeas petition pending in state

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court trying to exhaust those claims. Fregia's first amended petition contains both exhausted and

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unexhausted claims and therefore is a "mixed" petition. See Rhines v. Weber, 544 U.S. 269, 277

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(2005). The court cannot adjudicate the merits of a habeas petition containing any claim as to

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which state remedies have not been exhausted, such as a mixed petition. See Rose v. Lundy, 455

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U.S. 509, 522 (1982); cf. 28 U.S.C. § 2254(b)(2) (petition may be denied (but not granted)

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notwithstanding failure to exhaust). Respondent's motion to dismiss is GRANTED. (Docket

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# 11.)

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Upon granting a motion to dismiss such as respondent's, the court typically requires a

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petitioner to choose what to do with his mixed petition problem – i.e., dismiss the unexhausted

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claims, dismiss the action, or seek a stay and abeyance – but that is unnecessary here because

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Fregia already has chosen to seek a stay and abeyance.

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appropriate when the district court determines there was good cause for the petitioner's failure

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to exhaust his claims first in state court," the claims are not meritless, and there are no

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intentionally dilatory litigation tactics by the petitioner. See Rhines v. Weber, 544 U.S. 269, 277-

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78 (2005). Fregia urged in his unopposed motion that he failed to first exhaust the new claims

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in state court because appellate counsel failed to raise them on appeal, and he urged that the

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claims were meritorious. He does not appear to be engaging in dilatory litigation tactics. Upon

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due consideration, petitioner's motion for a stay and abeyance is GRANTED. (Docket # 12.)

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Fregia repeatedly makes reference to his appellate attorney's alleged ineffective

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assistance. However, he has not asserted ineffective assistance of appellate counsel as a claim

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for federal habeas relief. The court assumes that Fregia intentionally has chosen not to assert

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such a claim. If Fregia does want to assert an ineffective assistance of counsel claim, he must

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further amend his first amended petition to specifically allege it. Therefore, when petitioner

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moves to reopen the action, he must also move to amend to add that claim if he wants to assert

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A stay and abeyance "is only

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it at all. Petitioner is cautioned that any ineffective assistance of counsel claim cannot be

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entertained in this court unless and until state court remedies have been exhausted for it.

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CONCLUSION

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Respondent's motion to dismiss is GRANTED. (Docket # 11.) Petitioner's motion for
a stay and abeyance is GRANTED. (Docket # 12.)

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This action is now STAYED and the clerk shall ADMINISTRATIVELY CLOSE the

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action. Nothing further will take place in this action until Fregia exhausts any unexhausted

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claims and, within thirty days of doing so, moves to reopen this action, lift the court’s stay and

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amend his first amended petition to add any new claims. Fregia must act diligently to get his

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state court petition filed and promptly return to federal court after his state court proceedings

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have concluded.

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IT IS SO ORDERED.
DATED: May 19, 2012
SUSAN ILLSTON
United States District Judge

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