Cauyong v. Gibson

Filing 5

ORDER GRANTING 2 MOTION TO STAY; INSTRUCTIONS TO CLERK. Petitioner's motion to stay the petition is GRANTED, and the above-titled action is hereby STAYED until thirty (30) days after the state high court's final decision on Petitioner� 39;s unexhausted claims. The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay of this action. This has no legal effect; it is purely a statistical procedure. When Petitioner informs the Court that he has exhausted his additional claims, the case will be administratively re-opened ***Civil Case Terminated. Signed by Judge Edward J. Davila on 7/24/2012. (ecg, COURT STAFF) (Filed on 7/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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WILFREDO C. CAUYONG,
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Petitioner,
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vs.
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CONNIE GIBSON, Warden,
Respondent.

No. C 12-02606 EJD (PR)

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ORDER GRANTING MOTION TO
STAY; INSTRUCTIONS TO CLERK

(Docket No. 2)

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Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid

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the filing fee. (Docket No. 4.) Petitioner requests that the instant petition be stayed to

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allow him to exhaust unexhausted claims in the state courts.

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STATEMENT

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Petitioner was found guilty by a jury in San Mateo County Superior Court of

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twenty-four counts of violating Penal Code § 288(a) (oral copulation). (Pet. 2.) On May

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11, 2009, Petitioner was sentenced to twenty-four years in state prison. (Id.)

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The state appellate court affirmed the judgment, and the state high court denied

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review on in 2011. (Id. at 3.) Petitioner filed a habeas petition in the California Supreme

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Court on May 11, 2012, which remains pending. (Id.) Petitioner filed the instant federal
Order Granting Motion to Stay; Inst. To Clerk
G:\PRO-SE\SJ.EJD\HC.12\02606Cauyong_stay (exh).wpd

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petition on May 11, 2012.

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DISCUSSION

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A.

Motion to Stay

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Petitioner alleges numerous claims under the Fifth, Sixth and Fourteenth

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Amendments, which he admits includes unexhausted claims. Petitioner claims that he

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filed a state habeas petition purely to exhaust claims which his defense counsel refused to

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appeal. (Mot. at 2; Docket No. 2.) Petitioner requests the Court to stay and abey the

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petition to permit him to exhaust all claims in state court.

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Prisoners in state custody seeking to challenge collaterally in federal habeas

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proceedings either the fact or length of their confinement are first required to exhaust

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state judicial remedies, either on direct appeal or through collateral proceedings, 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. See 28 U.S.C. § 2254(b),(c);

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Rose v. Lundy, 455 U.S. 509, 515-16 (1982); Duckworth v. Serrano, 454 U.S. 1, 3

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(1981); McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988). The exhaustion

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requirement is satisfied only if the federal claim (1) has been “fairly presented” to the

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state courts, see id.; Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996); or (2) no state

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remedy remains available, see Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

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Peterson v. Lampert, 319 F.3d 1153, 1155-56 (9th Cir. 2003) (en banc). Petitioner admits

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that several ineffective assistance of counsel claims are currently pending before the state

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high court, and were not exhausted at the time he filed the instant petition. See 28 U.S.C.

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§ 2254(b),(c). Accordingly, the instant petition is a mixed petition.

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District courts have the authority to issue stays and AEDPA does not deprive them

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of that authority. Rhines v. Webber, 544 U.S. 269, 277-78 (2005). However, the district

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court’s discretion to stay a mixed petition is circumscribed by AEDPA’s stated purposes

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of reducing delay in the execution of criminal sentences and encouraging petitioners to

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seek relief in the state courts before filing their claims in federal court. Id. at 277.
Order Granting Motion to Stay; Inst. To Clerk
G:\PRO-SE\SJ.EJD\HC.12\02606Cauyong_stay (exh).wpd

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Because the use of a stay and abeyance procedure has the potential to undermine these

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dual purposes of AEDPA, its use is only appropriate where the district court has first

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determined that there was good cause for the petitioner’s failure to exhaust the claims in

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state court and that the claims are potentially meritorious. Id. The Court finds that

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Petitioner has not engaged in dilatory tactics and the unexhausted claims are potentially

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meritorious. Consequently, Petitioner’s motion to stay this action while he exhausts all

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claims in the state high court will be granted.

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CONCLUSION

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For the foregoing reasons, the Court orders as follows:

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1.

Petitioner’s motion to stay the petition is GRANTED, (Docket No. 2), and

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the above-titled action is hereby STAYED until thirty (30) days after the state high

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court’s final decision on Petitioner’s unexhausted claims.
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If Petitioner intends to have this Court consider the unexhausted claims, he

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must have properly presented them to the Supreme Court of California, and if he has not

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obtained relief in state court, thereafter notify the Court within thirty (30) days of the

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California Supreme Court’s decision, by filing a motion to reopen this action and stating

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therein that all the claims in the instant federal petition have been exhausted.
3.

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The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay

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of this action. This has no legal effect; it is purely a statistical procedure. When

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Petitioner informs the Court that he has exhausted his additional claims, the case will be

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administratively re-opened.
This order terminates Docket No. 2.

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Dated:

7/24/2012

EDWARD J. DAVILA
United States District Judge

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Order Granting Motion to Stay; Inst. To Clerk
G:\PRO-SE\SJ.EJD\HC.12\02606Cauyong_stay (exh).wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

WILFREDO CORTEZ CAUYONG,

Case Number: CV12-02606 EJD

Petitioner,

CERTIFICATE OF SERVICE

v.
CONNIE GIBSON, Warden,
Respondent.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
7/25/2012
That on
, 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.

Wilfredo Cortez Cauyong G-60779
Corcoran State Prison
P. O. Box 3471
Corcoran, CA 93212-3471
Dated:

7/25/2012
Richard W. Wieking, Clerk
/s/ By: Elizabeth Garcia, Deputy Clerk