Saucedo v. Brazelton

Filing 11

ORDER TO STAY AND ADMINISTRATIVELY CLOSE CASE 7 8 (Illston, Susan) (Filed on 10/23/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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STEVEN R. SAUCEDO, JR.,

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United States District Court
For the Northern District of California

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No. C 13-1696 SI (pr)

Petitioner,

ORDER TO STAY AND
ADMINISTRATIVELY CLOSE CASE

v.
P. D. BRAZELTON, warden,
Respondent.
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INTRODUCTION

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Steven R. Saucedo filed this action pursuant to 28 U.S.C. § 2254 to challenge his Santa

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Clara County Superior Court conviction. Respondent filed an answer to the petition and asserted

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that state judicial remedies had not been exhausted for one of petitioner’s claims, i.e., the claim

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that petitioner received ineffective assistance of counsel. Petitioner then filed a traverse as well

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as a motion for a stay and abeyance of these proceedings so that he could exhaust his ineffective

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assistance of counsel claim. Respondent did not oppose the 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). A petition that contains both

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

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277 (2005). The court cannot adjudicate the merits of a habeas petition containing any claim

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

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Lundy, 455 U.S. 509, 522 (1982); cf. 28 U.S.C. § 2254(b)(2) (petition may be denied (but not

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granted) notwithstanding failure to exhaust).

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Petitioner has moved for a stay and abeyance so that he may exhaust state court remedies

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as to the ineffective assistance of counsel claim, which he concedes is unexhausted. He can

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obtain a stay only if the claims are not meritless, there are no intentionally dilatory litigation

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tactics by the petitioner, and the "district court determines there was good cause for the

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petitioner's failure to exhaust his claims first in state court.". See Rhines, 544 U.S. at 277-78.

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The first two requirements are easily met here: petitioner's unexhausted claim does not appear

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to be meritless and he has not engaged in dilatory tactics. The third Rhine requirement presents

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a closer call.

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In an effort to show good cause for his failure to exhaust, petitioner has offered two

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reasons. First, he has alleged that trial counsel failed to provide to him certain materials from

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his case despite his requests for those materials. Although petitioner has not demonstrated that

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trial counsel actually has the materials that he thinks she has not turned over to him, he arguably

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may have been laboring under that impression until as late as November 8, 2012, when trial

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counsel sent him case materials with a cover letter that stated the enclosure was "a copy of the

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entirety of [his] trial file." Docket # 8 at 22. By that time, only about five months remained in

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petitioner's one-year AEDPA limitations period. Second, petitioner became separated from his

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legal papers starting on about February 28, 2013, when his inmate helper who was in possession

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of petitioner's legal papers was put in administrative segregation and prison officials would not

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deliver petitioner's papers to petitioner. When petitioner became separated from his legal papers,

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less than two months remained before his AEDPA habeas deadline. He has stated that he did

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not receive those papers by the time his AEDPA habeas deadline arrived. The fact that he was

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unable to access his paperwork during the months leading up to the deadline to file the federal

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petition helps provide good cause for his failure to first exhaust state court remedies, even

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though the regulation he has cited, 15 Cal. Code Regs. § 3191, does not provide authority for his

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contention that prison officials had a legal obligation to sort through the other inmate's property

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to find paperwork related to petitioner's case. The combination of these two circumstances

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provide good cause to excuse petitioner's failure to exhaust state court remedies before he filed

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his federal petition containing the unexhausted claim. He therefore is entitled to a Rhines stay.

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CONCLUSION

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Petitioner's motion for a stay and abeyance is GRANTED. (Docket # 8.) This action is

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now STAYED and the clerk shall ADMINISTRATIVELY CLOSE the action. Nothing further

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will take place in this action until petitioner exhausts any unexhausted claims and, within thirty

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days of doing so, moves to reopen this action, lift the court’s stay and amend his petition to add

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any new claims. Petitioner must act diligently to get his state court petition filed and promptly

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return to federal court after his state court proceedings have concluded.

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Petitioner's motion for an extension of time to file his traverse is GRANTED. (Docket
# 7.) The traverse (Docket # 10) is deemed to have been timely filed.
IT IS SO ORDERED.
DATED: October 23, 2013
SUSAN ILLSTON
United States District Judge

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