Robinson v. Alfaro

Filing 10

ORDER by Judge James Donato denying 4 Motion to Stay; granting 9 Motion for Leave to Proceed in forma pauperis (lrcS, COURT STAFF) (Filed on 9/3/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DWAYNE LAVELL ROBINSON,

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Case No. 15-cv-01445-JD

Petitioner,
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v.
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SANDRA ALFARO,

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Respondent.

Re: Dkt. Nos. 4, 9

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United States District Court
Northern District of California

ORDER GRANTING LEAVE TO
PROCEED IN FORMA PAUPERIS AND
DISMISSING MOTION TO STAY WITH
LEAVE TO AMEND

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Dwayne Lavell Robinson, a California prisoner, filed a pro se petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. He also applied for leave to proceed in forma pauperis.

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Petitioner was convicted in Alameda County, which is in this district, so venue is proper here. See

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28 U.S.C. § 2241(d).

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BACKGROUND

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Oliver was found guilty after a jury trial of second degree murder and assault with a

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firearm. He was sentenced to fifty-two years to life in prison.
DISCUSSION

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I.

STANDARD OF REVIEW
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in

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custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v.

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Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet heightened pleading

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requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of

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habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court

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must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting

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each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’

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pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility

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of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d

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688, 689 (1st Cir. 1970)).

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LEGAL CLAIMS
As grounds for federal habeas relief, Robinson asserts that: (1) the prosecutor withheld

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Brady evidence; (2) the prosecutor committed misconduct; and (3) the trial court erred in limiting

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consideration of the prior weapons assault conviction of a witness. Robinson has also filed a

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motion for a stay as at least some of these claims are unexhausted and he wishes to exhaust further

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United States District Court
Northern District of California

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claims.
In Rhines v. Weber, 544 U.S. 269 (2005) the United States Supreme Court found that a

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stay and abeyance of a mixed federal petition should be available only in the limited circumstance

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that good cause is shown for a failure to have first exhausted the claims in state court, that the

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claim or claims at issue potentially have merit and that there has been no indication that petitioner

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has been intentionally dilatory in pursuing the litigation. Rhines, supra, at 277-78. In his motion

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for stay, Robinson cites to Rhines and requests a stay, however, he has failed to address if good

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cause exists for the failure to have previously exhausted these claims, if the claims potentially

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have merit, and whether he has been intentionally dilatory in pursuing the litigation. The motion

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to stay will be dismissed with leave to amend. Robinson may file an amended motion to stay and

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address the Rhines factors and specifically describe the claims he wishes to exhaust.
CONCLUSION

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1.

Leave to proceed in forma pauperis (Docket No. 9) is GRANTED.

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2.

The motion to stay (Docket No. 4) is DENIED WITHOUT PREJUDICE.

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Petitioner may file an amended motion to stay within twenty-eight days of service of this order.

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3.

Petitioner must keep the Court informed of any change of address and must comply

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with the Court’s orders in a timely fashion. Failure to do so may result in the dismissal of this

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action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Martinez v.

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Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 41(b) applicable in habeas cases).

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IT IS SO ORDERED.
Dated: September 3, 2015

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________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DWAYNE LAVELL ROBINSON,

Case No. 15-cv-01445-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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SANDRA ALFARO,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on September 3, 2015, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Dwayne Lavell Robinson ID: AK-0159
North Kern State Prison A1-229 u
P.O. Box 5000
Delano, CA 93216

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Dated: September 3, 2015

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO
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