Whitmore v. Hense

Filing 53

ORDER Adopting 51 Report and Recommendation; Overruling Petitioner's Objections; and Denying 46 Motion to Include Previously Abandoned Grounds for Relief. Having reviewed the Report and Recommendation and the files and records herein, the Co urt adopts the Report and Recommendation in its entirety. Accordingly, the Court denies Petitioner's Motion to Reinstate Previously Abandoned Claims 5 and 6. Signed by Judge Michael M. Anello on 8/4/2011. (All non-registered users served via U.S. Mail Service)(leh) (jrl).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL GORDON WHITMORE, CASE NO. 09 CV 1324 MMA (MDD) Petitioner, 12 ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; 13 14 vs. [Doc. No. 51] 15 OVERRULING PETITIONER’S OBJECTIONS; 16 [Doc. No. 52] 17 MATTHEW CATE, Warden, 19 DENYING MOTION TO INCLUDE PREVIOUSLY ABANDONED GROUNDS FOR RELIEF 20 [Doc. No. 46] 18 Respondent. 21 On May 26, 2009, Petitioner Paul Gordon Whitmore, a state prisoner proceeding pro se 22 and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 23 [Doc. No. 1.] On July 14, 2009, the Court notified Petitioner that some of his claims may be 24 subject to dismissal for failure to exhaust his state remedies. [Doc. No. 12.] 25 On November 2, 2009, Petitioner filed a “Motion to Revisit Prima Facie, Amend Petition 26 and Enlarge Time Limit for Traverse.” [Doc. No. 23.] Therein, Petitioner requested, inter alia, 27 the Court to reconsider whether claims 5 and 6 are exhausted. [Id. at p.3.] Petitioner indicated 28 that if the Court still considers claims 5 and 6 unexhausted, he will ask the Court to dismiss these -1- 09cv1324 1 claims without prejudice. [Id.] On November 4, 2009, the Court issued an order indicating it 2 received Petitioner’s motion to “revisit prima facie” the same day the Court issued a detailed 3 Notice regarding Petitioner’s likely failure to exhaust claims 4, 5 and 6. [Doc. No. 26, p.2.] The 4 Court indicated that the Notice set forth Petitioner’s options as to the unexhausted claims, and 5 directed Petitioner to review the Notice and respond accordingly. [Id.] 6 Specifically, the Court’s November 3, 2009 Notice to Petitioner [Doc. No. 21] indicated 7 that three of his claims—numbers 4, 5 and 6—were not exhausted. The Court advised Petitioner 8 he had four options: (1) Petitioner could file additional papers with the Court demonstrating the 9 claims had been exhausted; (2) Petitioner could voluntarily dismiss his entire federal petition and 10 return to state court to exhaust his unexhausted claims; (3) Petitioner could formally abandon his 11 unexhausted claims and proceed only on those properly exhausted; or (4) Petitioner could file a 12 motion to stay his federal petition while he returned to state court to exhaust claims 4, 5 and 6. 13 [Doc. No. 21, p.2-4.] With respect to the third option, the Court cautioned Petitioner that if he 14 abandons the unexhausted claims, he may lose the ability to ever raise them in federal court. The 15 Court further advised Petitioner, that if he chose the fourth option, Petitioner could proceed one of 16 two ways. First, Petitioner could ask the Court to stay his mixed petition while he returned to state 17 court to exhaust claims 4, 5 and 6, or he could voluntarily withdraw his unexhausted claims and 18 request the Court to stay his fully-exhausted petition while he returns to state court to exhaust, and 19 then seek permission to amend his petition to include the newly exhausted claims after exhaustion 20 is complete. 21 On December 14, 2009, Petitioner responded to the Court’s Notice by filing a “Motion to 22 Dismiss Claim Nos. 5 and 6 and to Ask for Clarification as to Claim No. 4.” [Doc. No. 31.] In his 23 motion, Petitioner asked the Court to “dismiss and abandon his claims numbers [sic] 5 and 6.” [Id. 24 at p.1.] Petitioner stated he “considered each of the options the Court noted in the Notice 25 Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies. Petitioner 26 understands the potential consequences of this motion. Petitioner requests a dismissal without 27 prejudice.” [Id. a p.2.] On December 21, 2009, the Court granted Petitioner’s motion to dismiss 28 unexhausted claims 5 and 6. [Doc. No. 32.] -2- 09cv1324 1 On January 19, 2010, Petitioner filed a “Motion to Stay and Abeyance Regarding Grounds 2 4.” [Doc. No. 34.] The Court granted Petitioner’s motion to stay his federal action while he 3 proceeded in state court to exhaust claim 4. [Doc. No. 35.] On September 1, 2010, Petitioner filed 4 the pending motion to include his previously abandoned claims 5 and 6 in his original petition. 5 [Doc. No. 46.] Petitioner asserts the Court dismissed these claims without prejudice, and argues 6 that including them now does not constitute a successive petition because the Court did not rule on 7 the merits of the claims. [Id.] Respondent opposed Petitioner’s motion on October 1, 2010. [Doc. 8 No. 47.] Petitioner’s motion was referred to United States Magistrate Judge William V. Gallo for 9 preparation of a Report and Recommendation under 28 U.S.C. § 636(b) and Civil Local Rule 10 72.1(d). On April 29, 2011, this case was transferred to United States Magistrate Judge Mitchell 11 D. Dembin. [Doc. No. 50.] 12 Judge Dembin issued a well-reasoned and thorough Report recommending that Petitioner’s 13 motion to include previously abandoned claims 5 and 6 be denied. [Doc. No. 51.] Petitioner 14 timely filed objections, challenging the findings and conclusions of law set forth in the Report and 15 Recommendation. [Doc. No. 52.] Respondent did not file an objection to the Report, nor a 16 response to Petitioner’s objections. 17 Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge’s report and 18 recommendation, the district court “shall make a de novo determination of those portions of the 19 report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the 20 findings or recommendations made by the magistrate judge.” Here, Petitioner objects to the 21 entirety of the Report. [Doc. No. 52.] Primarily, Petitioner asserts his entire petition was stayed 22 while he exhausted his state court remedies, and Judge Dembin failed to view the grounds raised 23 in claims 5 and 6 as sentencing errors which may be corrected at any time. [Id.] The Court has 24 considered the merits of each of Petitioner’s objections. With respect to Petitioner’s objections to 25 the findings of fact detailed in the Report, the Court overrules the objections, as they are amply 26 supported by the record. While petitioner is correct that the entire petition was stayed while he 27 exhausted his claims in state court, by the time the Court entered the stay on February 2, 2010, the 28 Court had already granted Petitioner’s motion to dismiss claims 5 and 6 on December 21, 2009. -3- 09cv1324 1 Petitioner voluntarily chose to abandon claims 5 and 6, expressly acknowledging he understood 2 the consequences of his decision. [Doc. No. 31.] Petitioner has not identified any ground for the 3 Court to allow him to amend his petition to include these previously abandoned and time-barred 4 claims. Petitioner’s objections to the conclusions of law are similarly without merit, and are 5 therefore, overruled. Judge Dembin identified the correct legal standards, applied each standard 6 correctly, considered relevant case law, and reached sound conclusions that this Court has no 7 reason to reject. 8 9 10 11 Having reviewed the Report and Recommendation and the files and records herein, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES Petitioner’s motion to reinstate previously abandoned claims 5 and 6. [Doc. No. 46.] IT IS SO ORDERED. 12 13 DATED: August 4, 2011 14 15 16 Hon. Michael M. Anello United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 -4- 09cv1324

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