Jaffe v. Kramer

Filing 73

ORDER by Judge Hamilton dismissing unexhausted claim andgranting 68 Motion to Stay (pjhlc3, COURT STAFF) (Filed on 10/25/2012)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8

OAKLAND DIVISION

9
STEVEN JAFFE,
No. C 05-4439 PJH
11
For the Northern District of California

United States District Court

10

12
13

Petitioner,
ORDER DISMISSING
UNEXHAUSTED CLAIM AND
GRANTING MOTION FOR
STAY AND/OR ABEYANCE

vs.
EDMUND G. BROWN, JR., Governor,
MATTHEW KRAMER, Warden,

14
Respondent.
15

/

16
Petitioner Steven Jaffe’s motion for a stay and/or an abeyance is currently before the
17
court. Having reviewed the parties’ papers, the record, and having carefully considered
18
their arguments and the relevant legal authorities, the court GRANTS the motion.
19
BACKGROUND
20
On November 1, 2005, Jaffe filed a pro se habeas petition with this court. At the
21
time that Jaffe filed the petition, he was in state custody. The case was assigned to the
22
Honorable Martin Jenkins. On March 21, 2006, Judge Jenkins issued an order to show
23
cause, noting that Jaffe’s petition raised eleven claims for relief. Subsequently, after the
24
petition was fully briefed, on April 7, 2008, the case was reassigned to the undersigned
25
judge. On March 30, 2009, the court denied Jaffe’s petition, including all eleven claims for
26
relief, and on July 24, 2009, denied Jaffe’s request for a certificate of appealability (“COA”).
27
28

1

Jaffe appealed, and on November 17, 2010, the United States Court of Appeals for

was not addressed in Judge Jenkins’ order to show cause or in the undersigned judge’s

4

March 30, 2009 order denying the habeas petition or in the state court petitions that

5

preceded this federal action. On April 4, 2012, the Ninth Circuit affirmed in part and

6

reversed in part. It affirmed on all three of the four issues that had been addressed and

7

denied by this court in its March 30, 2009 order. However, the Ninth Circuit perceived a

8

Confrontation Clause claim in Jaffe’s November 1, 2005 petition that neither Judge Jenkins

9

nor this court addressed, and concluded that although the claim was not “fairly presented”

10

to the state courts and it was not entirely clear that Jaffe “raised”1 such a claim before this

11
For the Northern District of California

the Ninth Circuit granted a COA on four issues, including a Confrontation Clause claim that

3

United States District Court

2

court, it was nevertheless “sufficiently argued” in the papers before this court to warrant

12

further proceedings.

13

The Ninth Circuit further suggested that it found the Confrontation Clause claim to be

14

potentially meritorious, noting that it was “exceedingly troubled by Confrontation Clause

15

implications that arise from the admission of [Officer David] Miller’s preliminary hearing

16

testimony at trial,” but that it was unable to reach the merits of the claim because Jaffe had

17

not exhausted it before the state appellate courts. While concluding that the claim was not

18

exhausted, the Ninth Circuit remanded the matter for this court to “determine in the first

19

instance whether any California procedure remains available to Jaffe for raising [the

20

Confrontation Clause claim],” and if so to “exercise its discretion to determine whether

21

Jaffe’s petition should be stayed pursuant to either of the procedures outlined in King [v.

22

Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009)].”

23
24
1

25
26
27
28

This court is not entirely clear regarding how it should have been on notice that
Jaffe’s November 2005 petition contained a Confrontation Clause claim. Jaffe’s pro se
federal habeas petition attached his California Supreme Court petition for review as the
source of his federal habeas claims. Since that state court petition for review, as
acknowledged by the appellate court, did not include a Confrontation Clause claim, it is
difficult to understand how the federal habeas petition, which incorporated that state
petition, could have been construed by this court to have “raised” such a claim.
2

Subsequently, on June 19, 2012, the court granted petitioner’s motion to appoint

1
2

counsel and ordered the parties to address: (1) whether any state procedure remains

3

available that would allow petitioner to exhaust the Confrontation Clause claim in the

4

California courts; and (2) if such a procedure does exist, whether proceedings in this case

5

should be stayed to allow petitioner to exhaust.
In response, Jaffe filed a motion for a stay and/or abeyance of the instant federal

6
7

habeas proceeding so that he is able to exhaust the Confrontation Clause claim before the

8

state courts. The state opposed the motion, and Jaffe filed a reply.
DISCUSSION

9
A.

Jaffe’s Motion

11
For the Northern District of California

United States District Court

10

1.

Availability of State Court Relief

12

Jaffe argues that he may file a motion to recall the remittitur with the state appellate

13

courts allowing him to raise and exhaust the Confrontation Clause claim. In his opening

14

papers, Jaffe seemed to suggest that he could exhaust the Confrontation Clause claim by

15

raising an ineffective assistance of counsel claim in the context of a motion to recall the

16

remittitur.

17

In opposition, the state argues that a motion to recall the remittitur is no longer

18

available to Jaffe because he was discharged from state custody on April 20, 2010, and

19

that under state law, the judgment has therefore expired, rendering relief no longer

20

available. The state asserts that typically, under state law, a habeas petition may be

21

treated as a motion to recall the remittitur, or vice versa, and suggests that the state courts

22

would treat any motion to recall the remittitur filed by Jaffe as a habeas petition. However,

23

it argues that now that Jaffe is no longer in state custody, habeas relief is not available

24

under state law. See People v. Villa, 45 Cal.4th 1063 (2009). Additionally, the state

25

suggests that the state courts would not permit Jaffe’s motion to recall the remittitur

26

because he cannot demonstrate to the state courts that he exercised due diligence, arguing

27

that there was nothing to bar Jaffe from filing a habeas petition before the state courts

28
3

1

raising the Confrontation Clause claim before now.

2

The state also construes Jaffe’s opening motion as suggesting that he would raise

3

an ineffective assistance of counsel claim - as opposed to a Confrontation Clause claim -

4

before the state courts. The state asserts that to do so would not actually constitute “fair

5

presentation” of the Confrontation Clause claim found by the Ninth Circuit for federal

6

habeas exhaustion purposes. It notes that an ineffective assistance of counsel claim and

7

the Confrontation Clause claim require proof of different elements.

8
9

In reply, Jaffe counters that a motion to recall the remittitur is indeed available, and
that criminal judgments do not “expire” under state law. Jaffe acknowledges that a state
petition for writ of habeas corpus is unavailable because he is no longer in custody.

11
For the Northern District of California

United States District Court

10

However, he contends that the same custody restriction does not apply to a motion to recall

12

the remittitur, and that a motion to recall the remittitur is not simply another name for a

13

habeas petition, but instead constitutes a distinct remedy. He argues that it is not apparent

14

that the state courts would apply the custody requirement of habeas petitions to a motion

15

for recall, and suggests that the decision whether or not to do so is up to the

16

state courts - and not for this court to speculate.

17

Jaffe further counters that there is no fixed time limit for bringing a motion to recall

18

the remittitur before the state courts, and that this court should not speculate that the state

19

courts would deny the motion for lack of diligence. He contends that at every stage in

20

which he was in control of the proceedings - including his pro se federal habeas petition -

21

he raised the Confrontation Clause claim. He asserts that it was only when court-appointed

22

counsel filed his state court appeal that the claim was not raised.

23

Jaffe then clarifies that the basis on which he will seek recall of the remittitur is that

24

his counsel provided ineffective assistance when he failed to perfect a potentially

25

meritorious claim. However, he states that the “good cause” for seeking to reopen the

26

appeal, or “the substantive matter that the state court [will be] asked to consider is the

27

Confrontation Clause claim.” Reply at 7 n.7. He thus asserts that the state is mistaken that

28
4

1

he intends to present the ineffective assistance of counsel claim as his constitutional claim

2

on appeal assuming the motion for remittitur is granted. Instead, he clarifies that the

3

ineffective assistance of counsel claim will constitute his proffered grounds for why the

4

state should recall remittitur, but that, assuming the motion is granted, on appeal, he would

5

raise the Confrontation Clause claim. Nevertheless, for exhaustion purposes, Jaffe argues

6

that the litigation of a motion to recall the remittitur raising an ineffective assistance of

7

counsel claim would be adequate on its own to “exhaust the underlying substantive claim,

8

here, the Confrontation Clause claim.”

9

11
For the Northern District of California

United States District Court

10

In sum, Jaffe contends that the possibility that the state court will reopen the appeal
is enough reason for this court to stay and abey the pending petition.
Normally, when this court grants a motion for a stay or abeyance, the petitioner is

12

still in custody and presents the claim to the state court for exhaustion purposes via a state

13

habeas petition. Here, though, since Jaffe is now out of custody, effective April 2010, both

14

parties agree that state habeas proceedings are currently unavailable to him. See Villa, 45

15

Cal.4th at 1068, 1071 (noting that “a necessary prerequisite for issuance of the writ is the

16

custody or restraint of the petitioner by the government” and that “once the sentence

17

imposed for a conviction has completely expired, the collateral consequences of that

18

conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes

19

of a habeas attack upon it”).

20

The alternative procedure is a motion to recall remittitur, which is “a unique

21

California post-conviction remedy whereby the petitioner asks the Court of Appeal or

22

Supreme Court to reassert its jurisdiction over a case after it has relinquished that

23

jurisdiction by issuing a remittitur following the final determination of the appeal.” See

24

Hayward v. Stone, 496 F.2d 844, 845-46 (9th Cir. 1974) (citations omitted). “Though

25

traditionally the use of an application to recall the remittitur has been limited, its scope has

26

been so broadened in recent years that the motion to recall serves functions similar to

27

those of certiorari and habeas corpus in the field of post-conviction review.” Id.

28
5

1

Whether or not to recall the remittitur is up to the appellate court’s discretion. Id.

2

Typically, California appellate courts have held that a motion to recall remittitur may be

3

used on the basis of fraud or a mistake in fact that resulted in a miscarriage of justice. See

4

In re Martin, 58 Cal.2d 133, 139 (1962). A remittitur may also be recalled on the ground of

5

ineffective assistance of counsel. Hayward, 496 F.2d at 845-46 (citing People v. Rhoden, 6

6

Cal.3d 519 (1979)); People v. Valenzuela, 175 Cal.App.3d 381, 391 (1985) overruled on

7

other grounds by People v. Flood, 18 Cal.4th 470, 490 n.12 (1998) (holding that jury

8

instruction error and/or sufficiency of evidence not adequate grounds to recall remittitur, but

9

that ineffective assistance of counsel based on those underlying errors could provide basis

11
For the Northern District of California

United States District Court

10

for recalling remittitur)).
As noted above, the state’s primary objections to a motion to recall the remittitur are:

12

(1) that a motion to recall would be treated by the state courts as a habeas petition and

13

thus barred because Jaffe is now out of custody; (2) there is no longer a criminal judgment

14

for the state appellate courts to affirm or reverse now that Jaffe is out of custody; and (3)

15

that the state courts would dismiss a motion to recall the remittitur because Jaffe has not

16

shown due diligence.

17

It is unclear to this court whether the state appellate courts would actually treat a

18

motion to recall the remittitur as a habeas petition and/or whether they would apply the

19

same custody requirements associated with a writ of habeas corpus to such a motion.

20

Moreover, it is not clear to this court that the state appellate courts would deem the criminal

21

judgment expired under California law, and thus preclude Jaffe from seeking relief on that

22

basis. Furthermore, it is difficult to speculate how the state courts would resolve any issue

23

related to Jaffe’s diligence in bringing the motion.

24

Given that the Ninth Circuit has determined that Jaffe’s November 2005 federal

25

habeas petition raised a potentially meritorious Confrontation Clause claim, assuming that

26

Jaffe is entitled to a stay under King, 564 F.3d at 1138–41, as discussed below, this court

27

will permit Jaffe the opportunity to file a motion to recall the remittitur and to seek

28
6

1

exhaustion of the Confrontation Clause claim before the state courts. By permitting Jaffe

2

this opportunity to seek relief, this court is not dictating to the state courts the particular

3

procedure they must follow and/or whether they are required to grant such a motion to

4

enable Jaffe to raise the Confrontation Clause claim on appeal. The court simply grants

5

Jaffe permission to attempt to exhaust the claim.

6

As noted, the state raises an additional issue regarding whether Jaffe would be able

7

to present the Confrontation Clause claim before the state courts sufficiently for federal

8

habeas exhaustion purposes in the context of motion to recall the remittitur. Both Jaffe and

9

the state assume that he would be required to raise appellate counsel’s ineffective
assistance in failing to bring the Confrontation Clause claim - as opposed to the

11
For the Northern District of California

United States District Court

10

Confrontation Clause claim in and of itself - as the basis for the motion to recall the

12

remittitur. This appears to be correct given that the California courts have recognized

13

ineffective assistance of counsel as a basis for recalling remittitur. However, it was not the

14

ineffective assistance of counsel claim that the Ninth Circuit found Jaffe raised in his federal

15

habeas petition, but instead the underlying Confrontation Clause claim. Accordingly, it is

16

essential that Jaffe “fairly present” and exhaust the Confrontation Claim.

17

To exhaust the factual basis for the claim, “the petitioner must only provide the state

18

court with the operative facts, that is all of the facts necessary to give application to the

19

constitutional principle upon which [the petitioner] relies.” Davis v. Silva, 511 F.3d 1005,

20

1009 (9th Cir. 2008) (citations omitted). It is not sufficient to raise only the facts supporting

21

the claim; rather, "the constitutional claim . . . inherent in those facts" must also be brought

22

to the attention of the state court. See Picard v. Connor, 404 U.S. 270, 277 (1971).

23

As noted above, Jaffe has clarified that if the state court were to grant his motion to

24

recall the remittitur and reinstate the appeal, that on appeal, he would raise the

25

Confrontation Clause claim - not an ineffective assistance of counsel claim. He notes that

26

he would only raise the ineffective assistance of counsel issue as a basis for recalling the

27

remittitur.

28
7

1

If the state appellate courts grant the motion to recall the remittitur, and

Confrontation Clause claim would clearly be fairly presented for exhaustion purposes.

4

However, contrary to Jaffe’s position otherwise, if the state court denied his motion and he

5

was never able to “present” the Confrontation Clause claim, then it is unlikely that claim

6

would be fairly presented for exhaustion purposes. The Ninth Circuit has held that claims

7

that trial and/or appellate counsel were ineffective in failing to raise a claim in the state

8

courts do not fairly present the underlying claim to the state courts. Rose v. Palmateer,

9

395 F.3d 1108, 1112 (9th Cir. 2005) (holding that state court claims that trial counsel and

10

appellate counsel were ineffective in failing to challenge the admission of a confession did

11
For the Northern District of California

subsequently adjudicate the Confrontation Clause claim on the merits, then the

3

United States District Court

2

not fairly present to the state courts the underlying claim that the admission of the

12

confession was a violation of petitioner’s rights Fifth and Fourteenth Amendment).2

13

However, again, whether Jaffe will have fairly presented the Confrontation Clause

14

claim for federal habeas exhaustion purposes requires speculation at this stage since it is

15

unclear how the state courts will treat and resolve a motion to recall the remittitur.

16

Assuming Jaffe is entitled to a stay, following Jaffe’s return from state court, this court will

17

make the determination, if necessary, regarding whether the Confrontation Clause has

18

been fairly presented.

19

2.

20
21

Entitlement to Stay and Abeyance
a.

Legal Standards

In King, the case that the Ninth Circuit directed this court to apply, the Ninth Circuit

22

recognized that there are two approaches for analyzing stay-and-abey motions—one

23

provided for by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), and the other by Rhines v.

24
25
26
27
28

2

The case relied on by Jaffe for his contention otherwise does not actually support
his argument, and it is from 1974, long before the Ninth Circuit decided Rose v. Palmateer,
cited above in 2005. See Hayward v. Stone, 496 F.2d 844, 845-46 (9th Cir. 1974)
(determining that petitioner’s ineffective assistance of counsel claim presented in a motion
to recall remittitur that was denied by California appellate court was presented to and
exhausted by state courts).
8

1
2

Weber, 544 U.S. 269 (2005). See King, 564 F.3d at 1138–41.
Kelly provides that a district court may stay a petition containing only exhausted

3

claims and hold it in abeyance pending exhaustion of additional claims which may then be

4

added to the petition through amendment. 315 F.3d at 1070–71; King, 564 F.3d at 1135. If

5

a petition contains both exhausted and unexhausted claims (a so-called “mixed” petition), a

6

petitioner seeking a stay under Kelly must dismiss the unexhausted claims from the petition

7

and seek to add them back in through amendment after exhausting them in state court.

8

King, 564 F.3d at 1138–39. If AEDPA’s statute of limitations has expired, the petitioner

9

must show that the amendment of any newly exhausted claims back into the petition
satisfies Mayle v. Felix, 545 U.S. 644, 655 (2005), because the claims share a “common

11
For the Northern District of California

United States District Court

10

core of operative facts” with other exhausted claims. King, 564 F.3d at 1141-43.

12

Under Rhines, the other alternative, a district court may stay a mixed petition in its

13

entirety, without requiring dismissal of the unexhausted claims while the petitioner attempts

14

to exhaust them in state court. King, 564 F.3d at 1139–40. Unlike the Kelly procedure,

15

however, Rhines requires that the petitioner show good cause for failing to exhaust the

16

claims in state court prior to filing the federal petition. Rhines, 544 U.S. at 277–78; King,

17

564 F.3d at 1139. In addition, a stay pursuant to Rhines is inappropriate where the

18

unexhausted claims are “plainly meritless” or where the petitioner has engaged in “abusive

19

litigation tactics or intentional delay.” Id.

20
21

b.

Analysis

Jaffe has argued that he is entitled to a stay and abeyance both under Rhines and

22

under Kelly, and the state has opposed the stay request under both alternatives as well.

23

For the reasons discussed below, the court concludes that Jaffe is entitled to a stay and

24

abeyance under Kelly and therefore need not address the parties’ respective arguments or

25

Jaffe’s entitlement to a stay under Rhines.

26
27

In arguing that he is entitled to a stay and abeyance under Kelly, Jaffe
acknowledges that utilizing the procedure in Kelly would typically result in a claim being

28
9

1

time-barred by AEDPA’s statute of limitations, but argues that in his case, the Confrontation

2

Clause claim would “relate back” to time the original petition was filed because it shares a

3

common core of operative facts with the Brady claim, which he clearly raised and which this

4

court and the Ninth Circuit both addressed. The state counters that Jaffe is not entitled to a

5

stay under Kelly because the Confrontation Clause claim would not relate back to the

6

Brady claim contained in the original petition, and thus would be untimely.

7

There is no question that as of the date of this order, AEDPA’s statute of limitations

8

has expired since established Supreme Court law is clear that the filing and pendency of

9

the federal habeas petition did not toll AEDPA’s statute of limitations. See Duncan, 533
U.S. at 172. Accordingly, under Kelly, Jaffe is required to demonstrate that the

11
For the Northern District of California

United States District Court

10

Confrontation Clause claim shares a “common core of operative facts” with the claims in

12

the pending petition. See King, 564 F.3d at 1141; Mayle, 545 U.S. at 659.

13

Because Jaffe’s November 2005 federal habeas petition does not, in this court’s

14

opinion, adequately explain any Confrontation Clause claim, the court has reviewed Jaffe’s

15

appellate brief filed before the Ninth Circuit, of which it may properly take judicial notice, in

16

order to ascertain the nature of his claim.

17
18
19
20
21
22
23
24

In his opening brief on appeal before the Ninth Circuit, Jaffe framed his
Confrontation Clause claim as follows:
In Crawford v. Washington, the Supreme Court restated what it said had been
the recognized constitutional requirement for more than a century: In a
criminal trial, “prior trial or preliminary hearing testimony is admissible only if
the defendant had an adequate opportunity to cross-examine.” Crawford, 541
U.S. at 57; discussing Mattox v. United States, 156 U.S. 237, 244 (1895). And
to clear up any confusion that had accrued in the interim, the Court adopted
an “absolute bar” to the use of any prior testimony which does not meet that
test, regardless of whether other safeguards are employed or “indicia of
reliability” found. Crawford, 541 U.S. at 60, et seq. “It is not enough to point
out that most of the usual safeguards of the adversary process attend the
statement, when the single safeguard missing is the one the Confrontation
Clause demands.” Id. at 65.

25
26

The State court violated this clear, bright-line rule by allowing the prosecution
to read the prior, uncross-examined testimony of Officer David Miller to the
jury, and to rely on that evidence to obtain Appellant's conviction.

27
In its response below, the State countered that Appellant was given the
28
10

1
2
3
4
5
6
7
8

“opportunity” to cross-examine Miller at the preliminary hearing -- which (the
State contends) is all the Confrontation Clause requires. The contention is
inaccurate. As the Supreme Court has made clear, it is not enough for the
defense to have been permitted some opportunity to cross-examine -- rather,
the Confrontation Clause guarantees the “right of effective
cross-examination,” and its denial is “constitutional error of the first
magnitude.” Davis v. Alaska, 415 U.S. 308, 318 (1974) [emphasis supplied];
United States v. Larson, 495 F.3d 1094, 1102 (9th Cir. 2007) [ en banc], cert.
denied, 552 U.S. 1260 (2008).
At the barest minimum, the right to “effective” cross-examination includes the
opportunity to question the witness about matters necessary for the trier of
fact to assess the witness's reliability and credibility. Davis v. Alaska, 415
U.S. at 318; United States v. Larson, 495 F.3d at 1102; see also, Vasquez v.
Kirkland, 572 F.3d 1029, 1038 (9th Cir. 2009); Fowler v. Sacramento County
Sheriff's Dept., 421 F.3d 1027, 1035 (9th Cir. 2005).

9

11
For the Northern District of California

United States District Court

10

12
13
14

In the instant case, those facts included David Miller's unlawful and dishonest
activities -- and particularly his criminal abuse of his position as a police
officer. But Appellant did not have an opportunity to cross-examine Miller
regarding those facts at the preliminary hearing -- the only time Miller ever
testified -- because the State had made a decision to hide that information,
and neither Appellant nor his defense attorney had any idea it existed.
In short, because Appellant was denied the opportunity to effectively
cross-examine David Miller when he testified at the preliminary hearing, the
Confrontation Clause stood as an “absolute bar” to the use of that
testimony at Appellant's trial. Crawford v. Washington, 541 U.S. at 60.

15
Jaffe’s May 6, 2011 Opening Brief on Appeal, 2011 WL 1849179 at *26.
16
As noted, Jaffe contends that the above claim shares the same operative facts as
17
his Brady claim. In conjunction with that claim, Jaffe argued before this court that his right
18
to due process was violated because the prosecutor failed to disclose prior to the
19
preliminary hearing that Officer Miller was under investigation for committing federal crimes.
20
He contended that if the evidence had been disclosed to the defense prior to the
21
preliminary hearing, Officer Miller would not have testified at the preliminary hearing.
22
Accordingly, he claimed that this would have prevented the prosecutor from being able to
23
present at trial testimony by Officer Miller about finding methamphetamine in his wallet and
24
cocaine in his jacket.
25
In Mayle, the seminal United States Supreme Court case on point, the petitioner
26
originally alleged a Sixth Amendment Confrontation Clause violation based on the
27
admission into evidence of a witness' videotaped testimony. 545 U.S. at 648–49. After
28
11

1

AEDPA's one-year time limit had passed, the petitioner sought to add a new claim that his

2

Fifth Amendment rights against self incrimination were violated during his pretrial

3

interrogation by police. Id. Applying the “time and type” test, the Supreme Court

4

determined that the petitioner’s own pretrial statements were different in time and type from

5

a witness' videotaped testimony, and thus his new claim did not relate back. Id. at 657.

6

The Court rejected the petitioner’s argument that the relevant “transaction or occurrence”

7

for relating back amended claims was his trial and conviction, pointing to Congress' desire

8

to “advance the finality of criminal convictions” when it enacted the AEDPA. Id. at 662. It

9

reasoned that if new claims could be added so long as they arose out of the trial or

11
For the Northern District of California

United States District Court

10

conviction, the AEDPA time limit would be almost meaningless. Id.
Contrary to the facts of Mayle, the court finds that under the “time and type” test, the

12

Confrontation Clause claim here, as set forth above, shares a “common core of operative

13

facts” with the claims in the pending petition, notably the Brady claim. As for “type,” both

14

claims concern the impact of the admission of Officer Miller’s preliminary hearing testimony

15

on the jury’s conviction, and they are both based on the fact that Officer Miller testified that

16

he found drugs on the petitioner. Moreover, as for timing, both claims concern events that

17

occurred prior to or at Jaffe’s preliminary hearing.

18
19

For these reasons, the court concludes that Jaffe is entitled to a stay and abeyance
under Kelly. 315 F.3d at 1070–71; King, 564 F.3d at 1135.

20

CONCLUSION

21

Jaffe’s motion for a stay or abeyance pending exhaustion of the Confrontation

22

Clause claim is GRANTED, and this matter is STAYED on the conditions listed below. In

23

accordance with Kelly, this court will DISMISS without prejudice the Confrontation Clause

24

claim that the Ninth Circuit perceived to be raised in Jaffe’s November 2005 federal habeas

25

petition so that Jaffe may return to state court to file a motion to recall the remittitur in order

26

to attempt to exhaust the Confrontation Clause claim. 315 F.3d at 1071.

27

Because of this court’s concern regarding excessive delay, the stay, however, is not

28
12

1

without limits. The stay is subject to the following conditions:

2

(1) Jaffe must institute state court proceedings within 30 days of this order;

3

(2) Jaffe must return to this court to amend the instant petition within 30 days after

4

the state courts have completed their review of his claim;

5

(3) If either condition of the stay is not satisfied, this court may vacate the stay

6

nunc pro tunc and act on the instant petition.

7

IT IS SO ORDERED.

8
9

Dated: October 25, 2012

PHYLLIS J. HAMILTON
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
13