Skidmore v. Lizarraga

Filing 5

ORDER by Magistrate Judge Jacqueline Scott Corley granting 4 Motion to Stay (ahm, COURT STAFF) (Filed on 10/20/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CARL SKIDMORE,

Case No. 14-cv-04222-JSC

Petitioner,
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v.

ORDER GRANTING PETITIONER'S
MOTION TO STAY

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JOE LIZARRAGA,

Re: Dkt. No. 4

Respondent.

United States District Court
Northern District of California

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Petitioner, a prisoner of the State of California, filed a habeas corpus petition pursuant to

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28 U.S.C. § 2254. The petition sets forth seven claims challenging the constitutionality of

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petitioner’s conviction in state court. He claims: (1) ineffective assistance of trial counsel in

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failing to adequately investigate and challenge the DNA evidence; (2) ineffective assistance of

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trial counsel in failing to investigate and present evidence that one of the minor victims had denied

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that any abuse had occurred; (3) ineffective assistance of trial counsel in failing to seek to exclude

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the testimony concerning petitioner’s prior conviction; (4) ineffective assistance of trial counsel in

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failing to investigate the factual and legal issues in the case; (5) ineffective assistance of trial

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counsel in failing to object to the introduction of unreliable and unduly prejudicial evidence; (6)

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petitioner’s sentence is cruel and unusual punishment in violation of the Eighth Amendment to the

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United States Constitution; and (7) the cumulative errors in petitioner’s case warrant relief. (Dkt.

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No. 1 at 25:1-35:23.)

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The petition presents “mixed” claims; that is, claims that are exhausted and three claims

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that are unexhausted. The fourth, fifth, and seventh claims above are unexhausted, but are the

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subject of a petition currently pending before the California Supreme Court. (Dkt. No. 1 at 14:18-

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22; Dkt. No. 1-17.) Petitioner has filed a motion for a stay of this petition while he exhausts these

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claims. (Dkt. No. 4.)
A district court may stay a mixed habeas petition to allow the petitioner to exhaust state

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court remedies as to those claims that have not yet been presented to the state’s highest court. See

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Rhines v. Webber, 544 U.S. 269, 277–78 (2005). In Rhines, the Supreme Court discussed the stay-

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and-abeyance procedure, explaining that a stay and abeyance “is only appropriate when the district

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court determines there was good cause for the petitioner’s failure to exhaust his claims first in state

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court,” the claims are not meritless, and there are no intentionally dilatory litigation tactics by the

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petitioner. Id. If the stay is granted, the petitioner does not have to worry that his newly-

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exhausted claims will be barred by the statute of limitations because those claims remain pending

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in federal court. King v. Ryan, 564 F.3d 1133, 1139, 1140 (9th Cir. 2009).

United States District Court
Northern District of California

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Petitioner’s claims, when liberally construed, state a cognizable claim for relief. As such,

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he has shown that they are “potentially meritorious” within the meaning of Rhines. Petitioner has

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shown cause for his failure to exhaust these claims prior to arriving in federal court; namely, prior

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habeas counsel’s ineffective assistance of counsel and abandonment. Further, Petitioner alleges

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that he has diligently pursued these claims since their discovery in October 2013 and his retention

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of new counsel in June 2014.

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Good cause shown, petitioner’s request for a stay of these federal habeas proceedings

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while his petition before the California Supreme Court is adjudicated is GRANTED. Accordingly,

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the Court ORDERS as follows:

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1. The Clerk is instructed to ADMINISTRATIVELY CLOSE the case;

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2. Petitioner is DIRECTED to file a status report every ninety (90) days advising the Court

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of his status in California Supreme Court;
3. Petitioner is DIRECTED to file a motion to reopen this case and lift the stay within
thirty (30) days of exhaustion in state court of his unexhausted claims.
IT IS SO ORDERED.
Dated: October 20, 2014
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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