Scott v. Lewis

Filing 21

ORDER by Judge Lucy H. Koh denying 20 Motion for Leave to File (Attachments: # 1 Certificate/Proof of Service) (mpb, COURT STAFF) (Filed on 4/9/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ERIC D. SCOTT,

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Petitioner,
v.
WARDEN G.D. LEWIS,
Respondent.

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No. C 11-3128 LHK (PR)
ORDER DENYING “MOTION TO
LEAVE”
(Docket No. 20)

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The Court screened Petitioner’s petition, and found that, liberally
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construed, Petitioner raised the following claims: (1) there was insufficient corroboration of
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accomplice testimony to convict him of murder; (2) the trial court improperly instructed the jury
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with CALCRIM No. 362 because the court failed to limit the instruction to extrajudicial or pre22
trial statements; (3) the trial court improperly instructed the jury with CALCRIM No. 337
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because that instruction enhanced the credibility of witness Troy Collins; and (4) Petitioner
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suffered cumulative prejudice. The Court issued an order to show cause. On December 23,
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2011, Respondent filed an answer to the Court’s order to show cause. On April 26, 2012,
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Petitioner filed an amended traverse.
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On March 15, 2013, Petitioner filed a “motion for leave.” In this motion, Petitioner
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Order Denying Motion to Leave
P:\pro-se\sj.lhk\hc.11\Scott525oscdenifp

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requests “permission to leave” so that he can add two claims of ineffective assistance of counsel

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to his petition, and exhaust those same claims by returning to state court. For the reasons stated

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below, the motion is DENIED without prejudice to renewal.

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If the Court were to allow Petitioner to voluntarily dismiss his petition now, return to

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state court to exhaust these two new claims, by the time Petitioner returns to federal court, his

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new federal petition may be rejected as time-barred. See 28 U.S.C. § 2244(d). Petitioner can,

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however, stay his currently fully exhausted petition, and return to state court to exhaust.

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In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit clarified that where a petitioner

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seeks a stay of a fully-exhausted petition while he returns to state court to exhaust unexhausted

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claims, no showing of good cause is required to stay the petition. Id. at 1140. However, the

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newly exhausted claims can be added to the original petition by amendment only if the claims

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are timely under the one-year statute of limitations set forth at 28 U.S.C. § 2244(d)(1). Id. at

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1140-41. If the newly exhausted claims are not timely filed in accordance with said statute, they

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can be added to the original petition by amendment only if they “relate back” to the claims in the

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original petition that were fully exhausted at the time of filing. Id. at 1142-43 (citing Mayle v.

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Felix, 545 U.S. 644, 659 (2005)); Fed. R. Civ. P. 15(c).

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Here, as noted, Petitioner has filed a fully exhausted petition. If Petitioner wishes to stay

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this action until the new claims he wishes to raise are exhausted, and he is able to amend the

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instant petition to add those claims, the Court may grant a stay without a showing of good cause.

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See King, 564 F.3d at 1140. The Court has reservations about the eventual timeliness of

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Petitioner’s new claims, and whether they would “relate back” to the original petition. However,

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at this time, the Court will DENY Petitioner’s motion without prejudice to Petitioner renewing

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his motion, specifying that he wishes to stay the action in order to raise his new claims in state

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court, and filing an amended petition that includes his two new claims.

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IT IS SO ORDERED.
DATED:

4/8/13

LUCY H. KOH
United States District Judge

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Order Denying Motion to Leave
P:\pro-se\sj.lhk\hc.11\Scott525oscdenifp

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