Price v. Unknown

Filing 25

ORDER denying Doc. 22 Petitioner's Motion to Hold Federal Habeas Petition in Abeyance. Signed by Judge Marilyn L. Huff on 8/3/2011. (All non-registered users served via U.S. Mail Service)(aef)(jrd)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Petitioner,

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Civil No.

BRANDON LYNELL PRICE,

vs.

10-CV-01357-H (WVG)

ORDER DENYING PETITIONER’S
MOTION TO HOLD FEDERAL
HABEAS PETITION IN ABEYANCE

DOMINGO URIBE, Warden

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Respondent.

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On June 23, 2010, Brandon Lynell Price (“Petitioner”), a state prisoner proceeding pro

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se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) On

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February 25, 2011, the magistrate judge filed a Notice Regarding Possible Dismissal for Failure

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to Exhaust State Court Remedies, based on Petitioner’s failure to present claim numbers 4 and

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7 of his petition to the state supreme court. (Doc. No. 21 at 1.) On March 30, 2011, Petitioner

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filed a Motion to Stay and Abey the Federal Proceedings (“Motion to Stay and Abey”), pending

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exhaustion of his state court remedies. (Doc. No. 22.) On April 2, 2011, Respondent filed an

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Opposition to Petitioner’s Motion. (Doc. No. 23.) Finally, on June 30, 2011, the magistrate

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judge issued a Report and Recommendation, recommending that the Court deny Petitioner’s

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Motion to Stay and Abey. (Doc. No. 24.) For the reasons set forth below, the Court adopts the

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Report and Recommendation, and DENIES Petitioner’s Motion to Stay and Abey.

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I.

BACKGROUND

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On June 29, 2005, a jury found Petitioner guilty of second degree murder and shooting

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at an occupied vehicle. (Doc. No. 4 at 1; Doc. No. 4-1 at 1-2.) On November 30, 2005, a second
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jury convicted Petitioner of attempted robbery and assault with a firearm. (Doc. No. 4 at 1; Doc.

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No. 4-1 at 1-2.) The trial court imposed a sentence of 28 years to life. (Doc. No. 4-1 at 2.) On

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January 12, 2009, the California Court of Appeal affirmed the judgment. (Lodg. No. 3.) On

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March 25, 2009, the California Supreme Court denied a petition for review. (Lodg. No. 5.)

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While Petitioner filed no state habeas petitions, (see Doc. No. 1 at 3-4), Respondent admits that,

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but for claim numbers 4 and 7, Petitioner exhausted all other claims on direct appeal. (Doc. No.

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18 at 2.) Petitioner admits that claims 4 and 7 are unexhausted. (Doc. No. 22 at 2.) In claim

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number 4, Petitioner alleges that “trial counsel was ineffective” in failing to object to the

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admission of certain witness testimony. (Doc. No. 4 at 9.) In claim number 7, Petitioner

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likewise alleges “ineffective assistance of trial counsel,” but “for failure to object to coercion of

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a witness.” (Id. at 12.) Petitioner seeks a stay and abeyance of federal habeas proceedings so

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that he can exhaust these claims in state court. (Doc. No. 22.)

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II.

DISCUSSION

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A district court may properly stay a petition for purposes of claim exhaustion in state

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court when three requirements are met: (1) the petitioner had good cause for his failure to

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exhaust his claims in state court, (2) the unexhausted claims are potentially meritorious, and (3)

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there is no indication the petitioner engaged in intentionally dilatory litigation tactics. Rhines

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v. Weber, 544 U.S. 269, 277-78 (2005). However, “granting a stay effectively excuses a

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petitioner’s failure to present his claims first to the state courts,” frustrating the Antiterrorism

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and Effective Death Penalty Act’s objective of encouraging petitioners to seek relief from state

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courts in the first instance. See id. at 277. Accordingly, stay and abeyance should be granted

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“only in limited circumstances . . . where the district court determines there was good cause for

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the petitioner’s failure to exhaust his claims first in state court.” Id. To grant a stay in the

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absence of good cause would likely constitute an abuse of discretion. See id.

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Here, the Court concludes that Petitioner lacks good cause for his failure to exhaust

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claims number 4 and 7 in state court. Petitioner contends that appellate counsel’s failure to fully

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advise him of the exhaustion requirements before Petitioner filed this petition amounts to good

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cause. (See Doc. No. 22 at 4-5.) However, where, as in habeas proceedings, there is no right
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to counsel, attorney mistakes do not constitute “good cause.” See Coleman v. Thompson, 501

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U.S. 722, 752-53 (1991) (holding that where a petitioner “had no right to counsel to pursue his

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appeal in state habeas, any attorney error that led to the default of [petitioner]’s claims in state

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court cannot constitute cause.”). Thus, Petitioner has not shown good cause for his failure to

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exhaust state court remedies. See id. Additionally, that Petitioner seeks a further delay after

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waiting more than a year to file his habeas petition, (see Lodg. No. 5; Doc. No. 1), provides

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some indication of dilatory tactics. See Rhines, 544 U.S. at 277-78.

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Having considered the Rhines factors, particularly Petitioner’s lack of good cause, the
Court, in its discretion, DENIES Petitioner’s Motion to Stay and Abey.

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IT IS SO ORDERED.

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DATED: August 3, 2011

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______________________________

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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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