Randell v. Carey

Filing 19

ORDER DENYING PETITIONER'S MOTION TO HAVE CASE CONSIDERED ON THE MERITS by Judge Phyllis J. Hamilton denying 16 Motion (nah, COURT STAFF) (Filed on 2/20/2009)

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1 2 3 4 5 6 7 8 9 10 vs. THOMAS L. CAREY, Warden, Respondent. / BRIAN KEITH RANDEL, Petitioner, No. C 06-6400 PJH (PR) ORDER DENYING PETITIONER'S MOTION TO HAVE CASE CONSIDERED ON THE MERITS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a habeas case filed pro se by a state prisoner. An order to show cause was issued, respondent filed an answer, and petitioner filed a traverse. Petitioner then moved for a stay of proceedings to allow him to exhaust a claim based on Cunningham v. California, 127 S. Ct. 856, 871(2007). The initial motion was denied for failure to make the necessary showing, but a renewed motion was granted and the case was administratively closed. Petitioner has now moved to reopen the case and consider his claims on the merits. Petitioner presented his Cunningham claim to the California Supreme Court in a state habeas petition. That court denied it without prejudice to renewing it "after this court decides In re Gomez, S155425 . . . ." In Gomez the issue was whether a petitioner whose case becomes final after the decision in Blakely v. Washington, 542 U.S. 296 (2004), but before the decision in Cunningham, is entitled to the benefit of Cunningham. Gomez now has been decided, and in the affirmative; that is, habeas petitioners whose convictions became final after Blakely but before Cunningham do get the benefit of Cunningham. See In re Gomez, 199 P.3d 574, ___ (Cal. Feb. 2, 2009). /// 1 2 3 4 5 6 7 8 9 10 It is clear that petitioner has presented his claim to the highest state court available, but that court neither ruled on the merits of the claim nor imposed a procedural bar. In these circumstances, is the claim exhausted? Section 2254(d) of Title 28 of the United States Code provides that "[a]n applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." The Supreme Court has not interpreted this literally however, instead holding that "once the state courts have ruled upon a claim, it is not necessary for a petitioner `to ask the state for collateral relief, based upon the same evidence and issues already decided by direct review.'" Castille v. Peoples, 489 U.S. 346, 350 (1989) (quoting Brown v. Allen, 344 U.S. 443, 447 (1953)). As the Court said in Castille, "[i]t is reasonable to infer an exception [to 28 U.S.C. 2254(c)] where the State has actually passed upon the claim . . . ; and where the claim has been presented as of right but ignored (and therefore impliedly rejected) . . . . In both those contexts, it is fair to assume that further state proceedings would be useless." Id. Here, however, it is not fair to assume that further state proceedings would be useless, because the California Supreme Court virtually invited petitioner to file another habeas petition after Gomez was decided. Given that Gomez has now been decided, and in a way favorable to petitioner, the court concludes that he has not adequately exhausted this claim. The motion to consider the case on the merits (document number 16 on the docket) is DENIED. The stay of this case remains in place to allow petitioner to renew his claim in state court, now that the California Supreme Court has ruled in Gomez. If petitioner is not granted relief in state court, he may return to this court and ask that the stay be lifted. IT IS SO ORDERED. Dated: February 20, 2009. PHYLLIS J. HAMILTON United States District Judge United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\PJH\HC.06\RANDEL400.DENY REOPEN.wpd 2

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