Friend v. Davis

Filing 54

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING 34 MOTION TO SEAL AND SETTING FURTHER BRIEFING Re Docket No. 47 . (ndrS, COURT STAFF) (Filed on 8/25/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JACK WAYNE FRIEND,
Petitioner,

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United States District Court
Northern District of California

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v.

Case No. 15-cv-03514-HSG
ORDER GRANTING MOTION TO
SEAL AND SETTING FURTHER
BRIEFING
Re: Dkt. Nos. 34, 47, 51

RON DAVIS,
Respondent.

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Currently pending before the Court are three motions: Petitioner’s motion to seal Exhibit

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1, Respondent’s motion to dismiss certain claims from the petition for failure to exhaust, and

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Petitioner’s motion to stay the proceedings and return to state court to exhaust the unexhausted

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claims pursuant to Rhines v. Weber, 544 U.S. 269 (2005).

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In his motion to dismiss, Respondent agreed that Petitioner’s motion to seal Exhibit 1

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should be granted. ECF Doc. No. 47 at 2. Having shown good cause therefor, Petitioner’s motion

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to seal is GRANTED.

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Regarding the remaining two counter motions, on the same day that Petitioner filed his

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reply in support of his Rhines stay motion, the California Supreme Court issued a decision in

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Briggs v. Brown, S238309, upholding the validity of Proposition 66. See Briggs, __ P.3d __, 2017

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WL 3624094 (Aug. 24, 2017). Proposition 66 amends Cal. Penal Code section 1509 to add

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subsection (d), which calls for California state courts to dismiss successive habeas petitions unless

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a court finds the “defendant is actually innocent of the crime of which he or she was convicted or

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is ineligible for the sentence.” “Ineligible for the sentence” has a particular meaning under the

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statute and a specific list of enumerated claims that can be brought under that provision. This

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appears to foreclose exhaustion petitions if an initial habeas corpus petition has been filed and

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decided by the state court, except in rare instances.
To assist the Court in making a final decision on the remaining motions, the parties are

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hereby ORDERED to brief what impact, if any, the California Supreme Court’s decision in Briggs

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has on Petitioner’s ability to return to state court to exhaust his unexhausted claims. Petitioner’s

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brief is due on or before Tuesday, September 26, 2017. Respondent’s answer is due Tuesday,

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October 10, and the reply is due Tuesday, October 17. The parties shall observe a twenty-five

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page limit.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: 8/25/2017
______________________________________
HAYWOOD S. GILLIAM, JR.
United States District Judge

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