Sanders v. Folk

Filing 40

ORDER TO STAY AND ADMINISTRATIVELY CLOSE CASE dismissing 39 Motion to Dismiss. (Illston, Susan) (Filed on 3/2/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICKY RENE SANDERS,
Petitioner,

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United States District Court
Northern District of California

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Case No. 18-cv-01558-SI
ORDER TO STAY AND
ADMINISTRATIVELY CLOSE CASE

v.

Docket No. 39

FRED FOLK,
Respondent.

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Ricky Rene Sanders filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C.

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§ 2254 to challenge his 2014 conviction from the San Mateo County Superior Court. The matter is

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now before the Court for sua sponte consideration of a stay.

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In the San Mateo County Superior Court, Sanders was convicted of 44 felonies and received

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a sentence of 834 years to life in prison. On appeal, the California Court of Appeal reversed on

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some counts, ordered a sentence enhancement stricken, directed the trial court to resentence Sanders,

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and otherwise affirmed the judgment of conviction. The California Supreme Court denied a petition

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for review. Sanders is still awaiting the resentencing that was ordered by the California Court of

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Appeal. According to online records for the San Mateo County Superior Court, Sanders is scheduled

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to be resentenced on April 28, 2020.

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External/Home/WorkspaceMode?p=0.

See

https://odyportal-ext.sanmateocourt.org/Portal-

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The status of this action is that there is a pending unopposed motion to dismiss. The Court

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earlier issued an order to show cause why relief should not be granted on more than a dozen claims

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in the amended petition for writ of habeas corpus. Respondent has moved to dismiss on the grounds

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that some claims are procedurally defaulted and some claims are unexhausted. See Docket Nos. 16,

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39. Sanders does not oppose the motion to dismiss.

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The Court is concerned that there may be a significant unnecessary consumption of judicial

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resources if this action goes forward at this time, given the upcoming resentencing. Specifically,

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the Court may have to decide issues now and then have to re-decide the same or related issues later

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after the resentencing because a new judgment will be entered.
Normally, piecemeal and repetitious presentation of habeas claims is avoided by the rule

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generally disallowing second or successive petitions, see 28 U.S.C. § 2244(b)(3), but a resentencing

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may allow a petitioner to avoid that rule. A federal habeas petition filed after an amended or new

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judgment is entered upon a resentencing that follows an earlier federal habeas petition is not a

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“second or successive petition” for which permission must be obtained under 28 U.S.C. §

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2244(b)(3). See Wentzell v. Neven, 674 F.3d 1124, 1126-27 (9th Cir. 2012) (citing Magwood v.

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United States District Court
Northern District of California

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Patterson, 561 U.S. 320 (2010)). Although Magwood left open the question of whether a petitioner

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could challenge errors at the original trial in such a petition, the Ninth Circuit has held that such

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claims may be asserted. Wentzell, 674 F.3d at 1127. “‘[W]here a first habeas petition results in an

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amended judgment, a subsequent petition is not successive,’ even if its claims could have been raised

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in a prior petition or the petitioner ‘effectively challenges an unamended component of the

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judgment.’” Id. (quoting Johnson v. United States, 623 F.3d 41, 44 (2d Cir. 2010); see also Morales

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v. Sherman, 949 F.3d 474, 476 n.1 (9th Cir. 2020) (noting that three-judge panel had no authority

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“to reconsider whether Wentzell was correctly decided”). “[P]rocedural default rules—rather than

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the rules governing ‘second or successive’ petitions—are the more appropriate tools for sorting out

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new claims from the old. Wentzell, 674 F.3d at 1127.

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Rather than consuming judicial resources to decide the claims presented in the amended

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petition, and then consuming additional judicial resources to redecide those claims as well as any

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new claims that Sanders wants to present after resentencing, it is preferable to stay this case to let

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the resentencing proceedings conclude. By staying the case to wait for the resentencing (and any

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state court challenges) to conclude, the Court avoids the likelihood that it will have needlessly

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consume resources to study the state court records for the original trial twice – efforts that are quite

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likely to be required because Wentzell allows a petitioner who has been resentenced to allege claims

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that could have been raised in the original petition as well as claims about the resentencing. After
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Sanders is resentenced, a new or amended judgment is entered, and he exhausts state court remedies

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for his claims, he may file a motion to lift the stay of this action. Such a motion to lift the stay must

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be filed within a reasonable time after he exhausts state court remedies for his claims after

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conclusion of the resentencing proceedings. At that time, the Court will decide whether he should

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proceed with all his claims in a single case, in two consolidated cases, or otherwise.

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For the foregoing reasons, this action is now STAYED and the clerk shall

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ADMINISTRATIVELY CLOSE the action. Nothing further will take place in this action until

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Sanders’ resentencing occurs, he exhausts state court remedies for any claims, and, within a

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reasonable time thereafter, moves to reopen this action and lift the stay.

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United States District Court
Northern District of California

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Respondent’s motion to dismiss is DISMISSED without prejudice to Respondent refiling
such a motion after the stay is lifted, if that ever occurs. Docket No. 39.
IT IS SO ORDERED.
Dated: March 2, 2020
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SUSAN ILLSTON
United States District Judge

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