Mitchell v. Duffy

Filing 48

ORDER by Judge ARMSTRONG DENIED as moot 45 Motion for Leave to File (lrc, COURT STAFF) (Filed on 2/19/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-2705 SBA (PR)

8 PAUL MITCHELL,
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United States District Court
For the Northern District of California

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ORDER GRANTING PETITIONER’S
REQUEST TO STAY ACTION

Petitioner,

(Dkt. 45)

v.
DANIEL PARAMO, Warden,
Respondent.

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Petitioner Paul Mitchell, a prisoner of the State of California, filed a habeas corpus

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petition pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of his state

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conviction. On August 17, 2011, this Court ordered Respondent to show cause why the

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petition should not be granted, or to file a dispositive motion if appropriate. On September

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13, 2011, Respondent moved to dismiss the petition as a mixed petition containing both

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exhausted and unexhausted claims. Petitioner requested several extensions of time to file his

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opposition to the motion to dismiss, which the Court granted. On August 6, 2012, Petitioner

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filed his opposition.

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In an Order dated September 28, 2012, the Court granted the motion to dismiss and

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indicated that the following claims were unexhausted: (1) Petitioner did not have an

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opportunity to have an “exploratory interview” with the advisory counsel that was assigned

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to him; (2) Petitioner’s advisory counsel was ineffective; (3) Petitioner was denied the right

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to question a defense expert under oath; (4) the jury was not allowed to hear the defense

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expert’s testimony; and (5) Petitioner was prejudiced by the fact that his trial took place six

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years after the crime he was charged with occurred. (Dkt. 44.) The Court ordered Petitioner

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to determine how he wanted to proceed with regard to his unexhausted claims; i.e., either to

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file an amended petition containing only exhausted claims, or to stay the action while he

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exhausts his unexhausted claims in state court.

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Thereafter, on October 15, 2012, Petitioner filed (1) a motion for leave to file

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additional information to his opposition to the motion to dismiss (Dkt. 45) and (2) a

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declaration indicating that he wishes to stay his petition while he exhausts his unexhausted

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claims in state court (Dkt. 47).

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For the reasons stated below, Petitioner's request to stay his petition is granted and his

United States District Court
For the Northern District of California

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motion to file additional information in support of his opposition to Respondent’s motion to

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dismiss shall be denied as moot.

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DISCUSSION

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Prisoners in state custody who wish to challenge in federal habeas proceedings either

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the fact or length of their confinement are first required to exhaust state judicial remedies by

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presenting the highest state court available with a fair opportunity to rule on the merits of

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each and every claim they seek to raise in federal court. 28 U.S.C. § 2254(b), (c); Rose v.

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Lundy, 455 U.S. 509, 515-16 (1982). If available state remedies have not been exhausted as

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to all claims, the district court must dismiss the petition. Id. at 510; Guizar v. Estelle, 843

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F.2d 371, 372 (9th Cir. 1988). A dismissal solely for failure to exhaust is not a bar to

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returning to federal court after exhausting available state remedies. Trimble v. City of Santa

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Rosa, 49 F.3d 583, 586 (9th Cir. 1995).

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District courts have the authority to issue stays and the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA) does not deprive them of that authority. Rhines v.

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Weber, 544 U.S. 269, 277-78 (2005). The district court's discretion to stay a mixed petition

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is circumscribed by AEDPA's stated purposes of reducing delay in the execution of criminal

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sentences and encouraging petitioners to seek relief in the state courts before filing their

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claims in federal court. Id. Because the use of a stay and abeyance procedure has the

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potential to undermine these dual purposes of AEDPA, its use is only appropriate where the

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district court has first determined that there was good cause for the petitioner's failure to

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exhaust the claims in state court and that the claims are potentially meritorious. Id.

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Moreover, where granting a stay, the district court must effectuate the timeliness concerns in

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AEDPA by placing "reasonable limits on a petitioner's trip to state court and back." Id. at

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278. Prisoners who may run the risk of having the federal statute of limitations expire while

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they are exhausting their state remedies may avoid this predicament "by filing a 'protective'

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petition in federal court and asking the federal court to stay and abey the federal habeas

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proceedings until state remedies are exhausted." Pace v. DiGuglielmo, 544 U.S. 408, 416

United States District Court
For the Northern District of California

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(2005) (citing Rhines, 544 U.S. at 277-78).
In his declaration, Petitioner provides the following explanations regarding why he

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did not previously exhaust all of his claims in state court: (1) he was recovering from a heart

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attack which required that he undergo open heart surgery, and as such, he was not physically

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and cognitively able to undertake the legal activities required to file all of his habeas claims

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in state court; and (2) he lacked access to a law library and legal materials and therefore

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could not determine what claims to exhaust in state court. The Court finds Petitioner has

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provided good cause to explain his failure to exhaust claims that are potentially meritorious.

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Accordingly, the Court grants Petitioner’s request to stay the petition in order to allow him to

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exhaust his unexhausted claims in state court, subject to the conditions set forth below.

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Because a stay of this petition is granted, Petitioner’s motion to file additional information in

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opposition to Respondent’s motion to dismiss is denied as moot.
CONCLUSION

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For the foregoing reasons,

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IT IS HEREBY ORDERED THAT:

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1.

Petitioner’s request to stay the proceedings is GRANTED. Petitioner must act

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diligently in exhausting his state judicial remedies, or the stay may be lifted. He must file

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quarterly status reports describing the progress of his state court proceedings, commencing

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thirty (30) days from the filing date of this Order and continuing every ninety (90) days

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thereafter until his state court proceedings are terminated. He must also attach to his status

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reports copies of the cover page of any document that he files with or receives from the state

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courts.

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2.

Plaintiff’s motion to file additional material to support his opposition to the

motion to dismiss is DENIED AS MOOT.
3.

The Clerk of the Court shall ADMINISTRATIVELY CLOSE the file pending

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the stay of this action. Nothing further will take place in this action until Petitioner receives

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a final decision from the highest state court and, within thirty (30) days of doing so, moves

United States District Court
For the Northern District of California

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to reopen the action, lift the Court's stay and amend the stayed petition to add the newly-

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exhausted claim.

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4.

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IT IS SO ORDERED.

This Order terminates Docket no. 45.

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DATED: 2/14/13
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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Case Number: CV11-02705 SBA

PAUL MITCHELL,
Plaintiff,

CERTIFICATE OF SERVICE

v.
ANTHONY HEDGEPETH et al,
Defendant.

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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.
That on February 19, 2013, 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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Paul Mitchell G-21965
Richard J. Donovan Correctional Facility (RJD)
California Department of Corrections and Rehabilitation
P.O. Box 794004
San Diego, CA 92179

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Dated: February 19, 2013

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\HC.11\Mitchell 11-2705.GRANTstay&ADclose.wpd

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