Broadnax v. Allison

Filing 31

ORDER Denying 8 MOTION for Stay and Abeyance filed by Deshawn Broadnax. Signed by Magistrate Judge Ruben B. Brooks on 10/26/2012. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DESHAWN BROADNAX,

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Petitioner,

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v.

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MATTHEW CATE,

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Respondent.

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Civil No. 12cv560 GPC (RBB)
ORDER DENYING MOTION FOR STAY
AND ABEYANCE [ECF NO. 8]

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Petitioner Deshawn Broadnax, a state prisoner proceeding pro

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se and in forma pauperis, filed a Petition for Writ of Habeas

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Corpus on March 5, 2012 [ECF Nos. 1, 7].

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district court dismissed the Petition but gave Broadnax until May

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15, 2012, to file a first amended petition.

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2012, ECF No. 3.)

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Regarding an Extension of Time in Which to File Petition for Writ

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of Habeas Corpus in State Court" [ECF No. 8].

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that he has begun to identify "Potential Issues" and requests time

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"To Complete [his] Review Of The Issues, Ensure The Issues [are]

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Complete, Identify/Research Issues, And Write Petition for Writ of

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Habeas Corpus in the State Court."

On March 9, 2012, the

(Order 3, Mar. 9,

On March 22, 2012, Petitioner filed a "Notice

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Broadnax maintains

(Notice Regarding Extension

12CV0560 GPC(RBB)

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Time 1, ECF No. 8.)

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and abey any subsequently filed first amended federal petition.

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(Mins., Mar. 29, 2012, ECF No. 9.)

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The Court construed this as a motion to stay

Broadnax later submitted a First Amended Petition, which was

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filed nunc pro tunc to May 7, 2012 [ECF No. 16].

There, he

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contests his convictions for attempted intimidation of a witness,

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inducing a witness to give false information about a crime, and

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two counts of first-degree murder.

(See First Am. Pet. 6-7, 27-

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28, 38-39, 44, 51-52, ECF No. 16.)1

Petitioner challenges these

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convictions on several bases, including, in ground one, the

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adequacy of the jury instructions used at trial.

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In ground two, he contests the denial of his motion for a new

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trial.

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the sufficiency of the evidence supporting his conviction for

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dissuading a witness and, alternatively, contends that the trial

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court erred in omitting an element of that offense.

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39, 44.)

(Id. at 27-28.)

(Id. at 6-7.)

And in ground three, Broadnax disputes

(Id. at 38-

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Respondent filed an "Answer to the Petition for Writ of

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Habeas Corpus" on July 2, 2012, along with a memorandum of points

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and authorities and a notice of lodgment [ECF No. 21].

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17, 2012, Cate filed an "Amended Answer to First Amended Petition

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for Writ of Habeas Corpus" [ECF No. 23].

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On July

Broadnax later filed a "Motion and Declaration for
Appointment of Counsel," which was filed nunc pro tunc to May 24,

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Because Broadnax's First Amended Petition and "Notice
Regarding an Extension of Time in Which to File Petition for Writ
of Habeas Corpus in State Court" are not consecutively paginated,
the Court will cite to each using the page numbers assigned by the
electronic case filing system.
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12CV0560 GPC(RBB)

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2012 [ECF No. 20].

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new claims he seeks to exhaust in state court are for ineffective

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assistance of counsel and prosecutorial misconduct.

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Appointment Counsel 1, ECF No. 20.)

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August 6, 2012, (ECF No. 24); nevertheless, the Court will take

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judicial notice of statements made by Broadnax in the motion and

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accompanying declaration.

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In that motion, Petitioner clarified that the

(Mot. & Decl.

That motion was denied on

See Fed. R. Evid. 201(b).

On September 12, 2012, Cate filed an "Opposition to Motion
for Stay and Abeyance of First Amended Petition for Writ of Habeas

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Corpus" [ECF No. 28].

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entitled to a stay because he did not submit a mixed petition; the

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statute of limitations has run; and the new claims do not "relate

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back" to the timely claims in the pending First Amended Petition.

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(Opp'n Mot. Stay & Abey 4-6, ECF No. 28.)

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any reply memorandum.

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Respondent argues that Broadnax is not

Petitioner did not file

As a preliminary matter, the Court must consider whether a

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motion to stay is a dispositive or nondispositive motion,

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respectively meriting either a report and recommendation or an

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order.

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step in the life of a case . . . a stay order is merely

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suspensory.

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retains authority to dissolve the stay . . . ."

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v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (stay pending

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arbitration).

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stay is nondispositive.

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Elecs. Co., Ltd., No. 12-cv-00630-LHK, 2012 WL 2936432, at *1-2

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(N.D. Cal. July 18, 2012) (noting that a motion to stay

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preliminary injunction pending appeal was nondispositive); Young

"Although granting or denying a stay may be an important

Even if such a motion is granted, the court still
PowerShare, Inc.

The court in PowerShare concluded that a motion to
See id.; see also Apple, Inc. v. Samsung

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12CV0560 GPC(RBB)

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v. Cnty. of Hawaii, Civil No. 11-00580 ACK-RLP, 2012 WL 2366016,

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at *8 n.13 (D. Haw. June 19, 2012) (treating motion to stay

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pending arbitration as nondispositive); Lovell v. United Airlines,

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Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2010) (reviewing, as

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nondispositive, order denying motion to stay pending resolution of

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an earlier-filed class action); Sylvester v. Menu Foods, Inc., No.

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07-00409 ACK-KSC, 2007 WL 4291024, at *3 (D. Haw. Dec. 5, 2007)

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(reviewing order on motion to stay under standard used for

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dispositive motions because it was "inextricably intertwined" with

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ruling on motion to remand, which some courts treat as a

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dispositive motion).

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Other courts that have considered a motion to stay and abey

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have resolved the motion with an order.

See also Stamps v. Cate,

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No. 11–cv–2048–LAB (WMc), 2012 WL 3076408, at *4 (S.D. Cal. July

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30, 2012) (issuing order on habeas petitioner's motion to stay);

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Chau v. Uribe, No. 11cv136 AJB (PCL), 2011 WL 1544809, at *1 (S.D.

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Cal. Apr. 19, 2011) (same).

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PHX-FJM (JRI), 2011 WL 5331716, at *1 (D. Ariz. Sept. 15, 2011)

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("Because the resolution of [the motion to stay] would effectively

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be dispositive of the affected claims [for habeas relief], the

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undersigned makes the following proposed findings of fact, report,

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and recommendation . . . .").

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(JMA), 2011 WL 4403977, at *5 (S.D. Cal. Aug. 12, 2012)

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(submitting report and recommendation on motion to stay without

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discussing whether motion was dispositive); Orozco v. Silva, No.

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11cv2663–AJB (BLM), 2012 WL 1898793, at *6 (S.D. Cal. Jan. 30,

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2012) (same).

But see Gohel v. Ryan, CV-10-0001-

Figueroa v. Lea, No. 10–CV–2274 MMA

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12CV0560 GPC(RBB)

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In his March 22, 2012 filing, Broadnax first indicated that

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he intended to bring new claims for habeas relief in state court

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[ECF No. 8].

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the interim, the fully exhausted claims alleged in his federal

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Petition remain pending.

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in the state courts is a prerequisite to asserting them in a

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petition for writ of habeas corpus in the federal courts.

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Rhines v. Weber, 544 U.S. 269, 273-74 (2005).

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2254(b)(2) authorizes the Court to deny a claim for habeas relief

Since that time, he has had ample time to do so.

In

Exhausting new claims for habeas relief

See

Nevertheless, §

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on the merits although it has not been exhausted.

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§ 2254(b)(2) (West 2006).

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federal petition is qualitatively different from an order

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dismissing an unexhausted claim on the merits.

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See 28 U.S.C.A.

An order denying a motion to stay a

Broadnax's motion to stay his fully exhausted federal habeas

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Petition does not dispose of "new" claims he plans to raise in

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state court.

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obtain relief from the California courts on claims grounded in

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federal law, he will attempt to amend his federal Petition and

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pursue the additional claims here.

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he will return to federal court.

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is not dispositive of claims that have not been alleged in his

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federal Petition.

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Those claims will proceed.

If Petitioner does not

Broadnax's expectation is that

Thus, a motion to stay and abey

A motion to stay in order to exhaust habeas claims in state

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court should be treated like a motion to remand, which "is more

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logically viewed as non-dispositive because it does not dispose of

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a 'claim' . . . ."

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Practice § 72.02[4], at 72-10.1 (3d ed. 2012) (discussing motions

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to remand).

14 James Wm. Moore et al., Moore's Federal

"All of the claims and defenses proceed in state

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12CV0560 GPC(RBB)

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court after remand, and use of a federal forum is neither a claim

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nor a defense."

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and abey are nondispositive and will issue an order ruling on

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Petitioner's motion.

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Id.

This Court concludes that motions to stay

The Court finds Broadnax's motion suitable for resolution on

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the papers.

See S.D. Cal. Civ. R. 7.1(d)(1).

The Court has

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reviewed the First Amended Petition, Petitioner's "Notice

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Regarding an Extension of Time in Which to File Petition for Writ

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of Habeas Corpus in State Court" ("Motion to Stay"), his Motion

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for Appointment of Counsel, Cate's Opposition, and the lodgments.

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For the reasons discussed below, Broadnax's Motion to Stay [ECF

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No. 8] is DENIED.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

On December 19, 2008, in the Superior Court of California,

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County of San Diego, a jury convicted Broadnax of dissuading a

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witness from testifying, attempted witness intimidation, and two

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counts of first-degree murder.

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3, 621-27, Dec. 19, 2008.)

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committed these crimes for the benefit of a criminal street gang;

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he was a principal in the murders; and he used a firearm causing

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death.

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was an active participant of a criminal street gang when he

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committed the murders, which qualified as a special circumstance.

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(Id. at 622, 624.)

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to two life sentences without the possibility of parole plus

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fifty-seven years to life.

(Lodgment No. 1, Clerk's Tr. vol.

The jury concluded that Petitioner

(Id. at 621, 623, 626-27.)

They also found that Broadnax

On February 19, 2009, Petitioner was sentenced

(Id. at 560-63, 629.)

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On October 2, 2009, Broadnax appealed the convictions; they

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were affirmed by Division One of the California Court of Appeal,

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12CV0560 GPC(RBB)

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Fourth Appellate District, on August 20, 2010.

(See Lodgment No.

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3, Appellant's Opening Brief, People v. Broadnax, No. D054634

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(Cal. Ct. App. Aug. 20, 2010); Lodgment No. 6, People v. Broadnax,

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No. D054634, slip op. at 1, 14 (Cal. Ct. App. Aug. 20, 2010).)

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Broadnax petitioned the California Supreme Court for review on

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September 30, 2010.

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v. Broadnax, No. SD2009701437 (Cal. Dec. 15, 2010).)

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California Supreme Court denied the petition without opinion.

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(Lodgment No. 8, People v. Broadnax, No. S186803, order at 1 (Cal.

(Lodgment No. 7, Petition for Review, People
The

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Dec. 15, 2010.)

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Habeas Corpus in this Court on March 5, 2012 [ECF No. 1], and

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submitted a First Amended Petition, which was filed nunc pro tunc

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to May 7, 2012 [ECF No. 16].

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Petitioner then filed a Petition for Writ of

II.

LEGAL STANDARD FOR EXHAUSTION

Before a federal court may grant habeas relief on a claim, a

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petitioner must exhaust all available state judicial remedies.

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U.S.C.A. § 2254(b)(1)(A) (West 2006); Rhines v. Weber, 544 U.S. at

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273-74 (referring to total exhaustion requirement of Rose v.

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Lundy, 455 U.S. 509, 522 (1982), abrogated on other grounds by

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Rhines, 544 U.S. 269).

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petitioner has fairly presented it to the state courts.

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Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S.

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270, 275 (1971)).

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petitioner must "alert the state courts to the fact that he [is]

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asserting a claim under the United States Constitution."

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v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan, 513

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U.S. at 365-66).

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with a 'fair opportunity' to apply controlling legal principles to

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A claim is exhausted only when a
Duncan v.

To meet the fair presentation requirement, the

Hiivala

The petitioner must "provide the state courts

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12CV0560 GPC(RBB)

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the facts bearing upon his constitutional claim."

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Harless, 459 U.S. 4, 6 (1982) (citing Picard, 404 U.S. at 276-77).

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By giving state courts the "'opportunity to pass upon and correct'

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alleged violations of its prisoners' federal rights," comity is

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promoted, and disruption of state judicial proceedings is

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prevented.

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275); see also Rose, 455 U.S. at 518; Fields v. Waddington, 401

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F.3d 1018, 1020 (9th Cir. 2005).

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Anderson v.

Duncan, 513 U.S. at 365 (quoting Picard, 404 U.S. at

Constitutional claims raised in federal proceedings must be

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presented to the state courts first.

Baldwin v. Reese, 541 U.S.

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27, 31-32 (2004).

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opportunity to consider the factual and legal bases of a

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petitioner's claims before they are presented to the federal

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court.

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(citing Picard, 404 U.S. at 276; Johnson v. Zenon, 88 F.3d 828,

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829 (9th Cir. 1996)); see also Duncan, 513 U.S. at 365; Scott v.

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Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Davis v. Silva, 511

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F.3d 1005, 1008 (9th Cir. 2008).

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is pending before the state's highest court.

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at 515 ("[A]s a matter of comity, federal courts should not

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consider a claim in a habeas corpus petition until after the state

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courts have had an opportunity to act . . . ."); Anderson v.

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Morrow, 371 F.3d 1027, 1036 (9th Cir. 2004) ("AEDPA's exhaustion

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requirement entitles a state to pass on a prisoner's federal

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claims before the federal courts do so.").

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course, that once the federal claim has been fairly presented to

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the state courts, the exhaustion requirement is satisfied."

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Picard, 404 U.S. at 275.

The highest state court must have an

Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999)

A claim is not exhausted if it

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See Rose, 455 U.S.

"It follows, of

12CV0560 GPC(RBB)

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Courts may deny an application for habeas relief on the

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merits even if the petitioner has not yet exhausted his state

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judicial remedies.

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authority to grant relief on unexhausted claims.

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2254(b)(1)(A).

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III.
A.

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28 U.S.C.A. § 2254(b)(2).

But courts have no
Id. §

DISCUSSION

Whether the First Amended Petition is a Mixed Petition
Respondent Cate argues that the claims in the First Amended

Petition have all been exhausted, and therefore the Petition is

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not mixed.

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Cate, the Rhines test for determining whether a court should stay

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a mixed petition is therefore inapplicable.

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Respondent contends that even if Broadnax's Amended Petition is

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mixed, he has not shown good cause for his failure to have

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previously exhausted his new claims or that those claims are

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meritorious, as required by Rhines.

(Opp'n Mot. Stay & Abey 4, ECF No. 28.)

(Id.)

According to

Moreover,

(Id. at 4-5.)

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Cate maintains that Broadnax's First Amended Petition is not

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mixed, and thus the applicable test is that described in Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds

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by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007).

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5.)

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because Kelly requires the petitioner to amend his petition to add

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the new claims within the original one-year statute of limitations

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set forth by AEDPA, and Broadnax has not yet filed anything in

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state court relating to his new claims.

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(Id. at

Respondent insists that Petitioner is not entitled to a stay

(Id.)

A mixed petition contains both exhausted and unexhausted
See Rose, 455 U.S. at 510.

In Rhines v. Weber, 544 U.S.

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claims.

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269, the Supreme Court held that district courts have the

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12CV0560 GPC(RBB)

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discretion to stay a mixed habeas petition and hold it in abeyance

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to allow a petitioner to present unexhausted claims to state

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courts.

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district court will lift the stay and allow the petitioner to

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proceed in federal court."

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"Once the petitioner exhausts his state remedies, the

Id. at 275-76.

In his pending First Amended Petition, Broadnax argues that

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he is entitled to relief based on inadequate jury instructions,

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the denial of his motion for a new trial, insufficiency of the

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evidence, and alternatively, the trial court's omission of an

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element of the charge for dissuading a witness.

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6-7, 27-28, 38-39, 44, ECF No. 16.)

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before, and rejected by, the California Supreme Court.

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Lodgment No. 7, Petition for Review, People v. Broadnax, No.

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SD2009701437; Lodgment No. 8, People v. Broadnax, No. S186803,

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order at 1.)

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fully exhausted, so the Petition is not mixed.

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at 510 (stating that mixed petitions contain both exhausted and

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unexhausted claims).

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case.

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(AGR), 2012 U.S. Dist. LEXIS 69931, at *4 (C.D. Cal. Feb. 29,

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2012) (noting that Rhines does not apply to a fully exhausted

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petition).

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B.

(First Am. Pet.

These claims were raised
(See

All the claims contained in Broadnax's Petition are
See Rose, 455 U.S.

Rhines is not applicable to Petitioner's

See Sims v. Calipatria State Prison, No. CV 10-715-DSF

Whether a Stay of Broadnax's Fully Exhausted Petition is

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Warranted

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To date, the Ninth Circuit has only applied the Kelly

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procedure to requests to stay mixed petitions.

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564 F.3d 1133, 1140 (9th Cir. 2009).

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"to stay and hold in abeyance the amended, fully exhausted

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See King v. Ryan,

Courts have the discretion

12CV0560 GPC(RBB)

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petition, providing the petitioner the opportunity to proceed to

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state court to exhaust the deleted [unexhausted] claims . . ."

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King, 564 F.3d at 1139.

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continued to apply the Kelly procedure to requests to stay fully

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exhausted petitions, even when the petition was never a mixed

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petition.

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Kelly procedure is the appropriate standard to stay a fully

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exhausted petition while a petitioner attempts to exhaust

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additional claims); Hughes v. Walker, No. 2:10-cv-3024 WBS TJB,

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2012 U.S. Dist. LEXIS 11844, at *12-13 (E.D. Cal. Feb. 1, 2012)

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(finding Kelly is the "relevant procedure" when a petitioner seeks

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to stay original claims in a fully exhausted petition, while he

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seeks to exhaust new claims); Conriquez v. Uribe, No. 1:09-cv-

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01003-SKO-HC, 2012 U.S. Dist. LEXIS 607, at *9 (E.D. Cal. Jan. 4,

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2012) (applying Kelly); Knox v. Martel, No. CIV S-08-0494-MCE-CMK-

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P, 2010 U.S. Dist. LEXIS 30967, at *2 (E.D. Cal. Mar. 31, 2010)

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(citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)

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(applying Kelly)).

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Kelly while he attempts to exhaust new claims.

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Since Rhines, district courts have

See Sims, 2012 U.S. Dist. LEXIS 69931, at *4-5 (finding

Therefore, Broadnax can request a stay under

In Jackson, the Ninth Circuit reaffirmed the three-step
procedure outlined in Kelly.

Jackson, 425 F.3d at 659.

The procedure include[s] (1) allowing a petitioner to
amend his petition to remove the unexhausted claims -as Rose indicated; (2) staying and holding in abeyance
the amended, fully exhausted petition to allow a
petitioner the opportunity to proceed to state court to
exhaust the deleted claims; and (3) permitting the
petitioner after completing exhaustion to amend his
petition once more to reinsert the newly exhausted
claims back into the original petition.

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Id. at 658-59 (citation omitted).

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determined that the Kelly procedure does not undermine AEDPA

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The Ninth Circuit has

12CV0560 GPC(RBB)

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because a petitioner may amend his petition only if the claims are

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still timely or relate back to the original pleading.

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564 F.3d at 1140-41.

See King,

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A Kelly stay is appropriate when an outright dismissal will

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make it difficult for the petitioner to return to district court

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within AEDPA's one-year statute of limitation period.

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2012 U.S. Dist. LEXIS 69931, at *3-5.

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use the Kelly procedure will be able to amend his unexhausted

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claims back into his federal petition once he has exhausted them

See Sims,

"A petitioner seeking to

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only if those claims are determined to be timely.

And

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demonstrating timeliness will often be problematic under the now-

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applicable legal principles."

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Therefore, Broadnax will only be entitled to a stay of his fully

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exhausted Petition if his new ineffective assistance of counsel

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and prosecutorial misconduct claims are not otherwise time barred

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by AEDPA.

King, 564 F.3d at 1140-41.

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1.

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Respondent contends that the claims Broadnax is seeking to

Statute of limitations

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exhaust are untimely.

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Cate asserts that AEDPA's statute of limitations expired on March

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15, 2012, because the one-year statute of limitations began on

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March 15, 2011 -- ninety days after the December 15, 2010

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California Supreme Court decision.

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his Petition in federal court on March 5, 2012.

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Respondent also claims that filing a habeas claim in federal court

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does not toll AEDPA's statute of limitations, and to date,

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Broadnax has still not returned to state court to exhaust his new

(Opp'n Mot. Stay & Abey 5-6, ECF No. 28.)

(Id. at 5.)

Petitioner filed
(Id. at 5-6.)

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12CV0560 GPC(RBB)

1

claims.

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statute of limitations for his new claims has expired.

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(Id. at 6.)

Broadnax does not address whether the

A petitioner seeking to use the Kelly procedure and amend his

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petition must demonstrate that the unexhausted claims are timely.

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King, 564 F.3d at 1140-41.

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Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996

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because it was filed after April 24, 1996.

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(West 2006); Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing

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Lindh v. Murphy, 521 U.S. 320, 326 (1997)).

Broadnax's Petition is subject to the

28 U.S.C.A. § 2244

All federal habeas

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petitions are subject to AEDPA's one-year statute of limitations.

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As amended, § 2244(d) provides:

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(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of --

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(A) the date on which the judgment became final by
the conclusion of direct review or the expiration
of the time for seeking such review;

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(B) the date on which the impediment to filing an
application created by State action in violation of
the Constitution or laws of the United States is
removed, if the applicant was prevented from filing
by such State action;

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(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by
the Supreme Court and made retroactively applicable
to cases on collateral review; or

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23

(D) the date on which the factual predicate of the
claim or claims presented could have been
discovered through the exercise of due diligence.

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25
26

28 U.S.C.A. § 2244(d)(1).
On August 20, 2010, the California Court of Appeal issued its

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opinion addressing Petitioner's appeal from the judgment of

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conviction.

(Lodgment No. 6, People v. Broadnax, No. D054634,

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12CV0560 GPC(RBB)

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slip op. at 1.)

The court affirmed the superior court judgment.

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(Id. at 1, 14.)

Broadnax filed a petition for review, which the

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California Supreme Court denied on December 15, 2010.

4

Lodgment No. 8, People v. Broadnax, No. S186803, order at 1.)

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Broadnax did not file a petition for a writ of certiorari with the

6

United States Supreme Court.

7

(See

United States Supreme Court Rule 13 provides that a petition

8

for certiorari must be filed within ninety days of the entry of an

9

order denying discretionary review by the state supreme court.

10

See S. Ct. R. 13.

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review by the state's highest court but does not file a petition

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with the United States Supreme Court, the judgment becomes final

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when the prisoner's time to petition the Supreme Court expires.

14

See Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641, 653-54

15

(2012).

16

When a habeas petitioner seeks discretionary

Broadnax's judgment became final for the purposes of AEDPA on

17

March 15, 2011, ninety days after the California Supreme Court

18

denied his petition for review.

19

Pursuant to § 2244(d), the statute of limitations for federal

20

habeas corpus began to run on March 16, 2011, the day after the

21

judgment became final.

22

v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (explaining that the

23

one-year statute of limitations under AEDPA begins to run the day

24

after the conviction becomes final).

25

period would therefore have expired on March 15, 2012.

26

Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001)

27

(quoting Fed. R. Civ. P. 6(a)) ("In computing any period of time

28

prescribed or allowed . . . by any applicable statute, the day of

See id.; see also S. Ct. R. 13.

28 U.S.C.A. § 2244(d)(1)(A); see Corjasso

14

The statute of limitations
See

12CV0560 GPC(RBB)

1

the act, event, or default from which the designated period of

2

time runs shall not be included.")

3

Broadnax signed his "Notice Regarding an Extension of Time in

4

Which to File Petition For Writ of Habeas Corpus in State Court"

5

on March 19, 2012 [ECF No. 8], seeking to stay the First Amended

6

Petition while he raises new claims in state court.

7

Petitioner has not provided any evidence showing that he has filed

8

a state habeas corpus petition related to these new claims.

9

the contrary, his motion for a stay suggests that he has yet to

To date,

On

10

file anything in state court.

11

Time 1, ECF No. 8.) (requesting time to research, write, and file

12

state habeas corpus petition).

13

(See Notice Regarding Extension

A federal petition for writ of habeas corpus may be dismissed

14

with prejudice when it was not filed within AEDPA's one-year

15

statute of limitations.

16

Cir. 2001).

17

must be resolved before the merits of individual claims.

18

Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002).

19

otherwise late petition may be timely if Broadnax can show he is

20

entitled to statutory or equitable tolling, or that an amended

21

petition that includes newly exhausted ineffective assistance of

22

counsel and prosecutorial misconduct claims will relate back to

23

his original claims for habeas relief.
a.

24

Jiminez v. Rice, 276 F.3d 478, 483 (9th

The statute of limitations is a threshold issue that
White v.

Nevertheless, an

Statutory tolling

25

Respondent argues that Petitioner is not entitled to tolling

26

because the time in federal court does not toll AEDPA's statutory

27

clock.

28

that Broadnax's new ineffective assistance of counsel and

(Opp'n Mot. Stay & Abey 6, ECF No. 28.)

15

Cate maintains

12CV0560 GPC(RBB)

1

prosecutorial misconduct claims are time barred because AEDPA's

2

statute of limitations expired on March 15, 2012.

3

Petitioner does not address whether statutory tolling applies.

4

(Id.)

The statute of limitations under AEDPA is tolled during

5

periods in which a "properly filed" habeas corpus petition is

6

"pending" in the state court.

7

statute specifically provides, "The time during which a properly

8

filed application for State post-conviction or other collateral

9

review with respect to the pertinent judgment or claim is pending

28 U.S.C.A. § 2244(d)(2).

The

10

shall not be counted toward any period of limitation under this

11

subsection."

12

(2005).

13

and acceptance are in compliance with the applicable laws and

14

rules governing filings."

15

(explaining that typical filing requirements include all relevant

16

time limits).

17

Id.; see also Pace v. DiGuglielmo, 544 U.S. 408, 410

"[A]n application is 'properly filed' when its delivery

Artuz v. Bennett, 531 U.S. 4, 8 (2000)

The interval between the disposition of one state petition

18

and the filing of another may be tolled under "interval tolling."

19

Carey v. Saffold, 536 U.S. 214, 223 (2002).

20

of limitations is tolled for 'all of the time during which a state

21

prisoner is attempting, through proper use of state court

22

procedures, to exhaust state court remedies with regard to a

23

particular post-conviction application.'"

24

F.3d 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lamaster, 167

25

F.3d 1321, 1323 (10th Cir. 1999)); see also Carey, 536 U.S. at

26

219-22.

27

first state habeas petition is filed until state collateral review

28

is concluded, but it is not tolled before the first state

"[T]he AEDPA statute

Nino v. Galaza, 183

The statute of limitations is tolled from the time the

16

12CV0560 GPC(RBB)

1

collateral challenge is filed.

2

646 (9th Cir. 2007) (citing Nino, 183 F.3d at 1006).

3

Thorson v. Palmer, 479 F.3d 643,

Here, Broadnax has yet to file a state habeas corpus petition

4

related to his new ineffective assistance of counsel or

5

prosecutorial misconduct claims.

6

tolled while his First Amended Petition asserting entirely

7

different, exhausted causes of action is pending in federal court.

8

See Duncan v. Walker, 533 U.S. 167, 182 (2001) (stating that

9

AEDPA's statute of limitations is not tolled "during the pendency

These claims are not statutorily

10

of [a] . . . federal habeas petition.").

11

cannot avail himself of statutory tolling while he exhausts his

12

additional state claims because Petitioner did not timely file his

13

claims in state court, and AEDPA's statute of limitations was not

14

tolled before it expired.

15

untimely state post-conviction petition is not "properly filed"

16

within the meaning of § 2244(d)(2)).

17
18

b.

Furthermore, Broadnax

See Pace, 544 U.S. at 410 (holding that

Equitable tolling

Neither the Petitioner nor the Respondent addresses whether

19

equitable tolling applies.

20

limitations is appropriate when the petitioner can show "(1) that

21

he has been pursuing his rights diligently, and (2) that some

22

extraordinary circumstance stood in his way."

23

560 U.S. __, __, 130 S. Ct. 2549, 2562 (2010); Pace, 544 U.S. at

24

418; see also Lawrence v. Florida, 549 U.S. 327, 335 (2007).

25

petitioner bears the burden of establishing the elements.

26

v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010).

27

entitled to equitable tolling of AEDPA's one-year statute of

28

limitations where "'extraordinary circumstances beyond a

Equitable tolling of the statute of

17

Holland v. Florida,

The

Roberts

A petitioner is

12CV0560 GPC(RBB)

1

prisoner's control make it impossible'" to file a timely petition.

2

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting

3

Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)).

4

"'[T]he threshold necessary to trigger equitable tolling

5

[under AEDPA] is very high, lest the exceptions swallow the

6

rule.'"

7

(quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.

8

2000).

9

of external forces, not the result of the petitioner's lack of

Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)

The failure to file a timely petition must be the result

10

diligence.

11

"Determining whether equitable tolling is warranted is a

12

'fact-specific inquiry.'"

13

v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)).

14

makes a "'good-faith allegation that would, if true, entitle him

15

to equitable tolling[,]'" the petitioner should receive an

16

evidentiary hearing.

17

2006) (alteration in original) (quoting Laws v. LaMarque, 351 F.3d

18

919, 921 (9th Cir. 2003).

19

Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

Spitsyn, 345 F.3d at 799 (quoting Frye
If a petitioner

Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.

Broadnax does not allege that he is entitled to equitable

20

tolling.

(See generally Notice Regarding Extension Time 1, ECF

21

No. 8.)

22

ineffective assistance of counsel and prosecutorial misconduct

23

claims that arose prior to filing his federal Petition for Writ of

24

Habeas Corpus.

25

(see also Lodgment No. 3, Appellant's Opening Brief, People v.

26

Broadnax, No. D054634; Lodgment No. 7, Petition for Review, People

27

v. Broadnax, No. SD2009701437.)

There is no indication that he has diligently pursued the

See Holland, 560 U.S. at __, 130 S. Ct. at 2562;

28

18

12CV0560 GPC(RBB)

1

Additionally, Petitioner has not filed the claims in state

2

court, even though more than seven months have elapsed since

3

AEDPA's one-year statute of limitations expired on March 15, 2012.

4

(See Opp'n Mot. Stay & Abey 5, ECF No. 28; see also Pinks v.

5

Gipson, No. CV 12–1306 RGK (JCG), 2012 WL 1044310, at *1 (C.D.

6

Cal. Mar. 28, 2012) (finding a prisoner who filed a state petition

7

for writ of habeas corpus six months late was not diligently

8

pursuing his claims).

9

questioned the trial attorney's actions while appealing the

Neither Broadnax nor his appellate counsel

10

conviction.

During the period after the California Supreme Court

11

denied his petition for review and prior to filing his federal

12

habeas Petition, Broadnax failed to consider the claim of

13

prosecutorial misconduct.

14

15 (9th Cir. 2011) (discussing what is reasonable diligence when

15

faced with attorney misconduct).

16

that he was reasonably diligent in pursuing his new ineffective

17

assistance of counsel and prosecutorial misconduct claims.

18

Holland, 560 U.S. at __, 130 S. Ct. at 2562.

See Doe v. Busby, 661 F.3d 1001, 1012-

Petitioner has not demonstrated

See

19

2.

20

Cate contends that Broadnax's untimely new claims "do not

21

appear to be related" to the claims presented in his First Amended

22

Petition.

23

does not address the issue.

Relation back

(Opp'n Mot. Stay & Abey 6, ECF No. 28.)

Petitioner

24

The Federal Rules of Civil Procedure apply to federal habeas

25

cases through Federal Rule of Civil Procedure 81(a)(4), 28 U.S.C.

26

§ 2242, and Habeas Corpus Rule 12.

27

2012); Rules Governing § 2254 Cases, Rule 12, 28 U.S.C. foll. §

28

2254; Fed. R. Civ. P. 81(a)(4).

See 28 U.S.C.A. § 2242 (West

"Amendments made after the

19

12CV0560 GPC(RBB)

1

statute of limitations has run relate back to the date of the

2

original pleading if the original and amended pleadings '[arise]

3

out of the conduct, transaction, or occurrence."

4

545 U.S. 644, 655 (2005) (citing Fed. R. Civ. P. 15(c)(2)).

5

applicable test is whether the claim arises out of a "common 'core

6

of operative facts' uniting the original and newly asserted

7

claims."

8
9

Mayle v. Felix,
The

Id. at 659 (citations omitted).

A claim does not arise out of a common core of operative
facts when the claim is "'supported by facts that differ in both

10

time and type from those the original pleading set forth.'"

11

Schneider v. McDaniel, 674 F.3d 1144, 1150 (9th Cir. 2012) (citing

12

Mayle, 545 U.S. at 650).

13

timely under the AEDPA or the relation-back doctrine does not

14

apply, it may not be added to the existing petition and a stay is

15

inappropriate."

16

2012 U.S. Dist. LEXIS 3620, at *6-7 (E.D. Cal. Jan. 6, 2012).

17
18

a.

"If the newly exhausted claim is not

Garcia v. Evans, No. 1:08-cv-1819 AWI DLB HC,

Prosecutorial misconduct claim

First, the Court will consider whether Broadnax's new claim,

19

which he describes as "PROSECUTORIAL MISCONDUCT: FAILURE TO

20

DISCLOSE BRADY[] (EXCULPATORY) MATERIAL," relates back to any of

21

the three claims in the First Amended Petition.

22

Appointment Counsel 1, ECF No. 20.)

23

articulate the factual basis of this new claim, other than by

24

vaguely asserting that it is based on Brady violations.

25

Notice Regarding Extension Time 1, ECF No. 8; see generally Mot. &

26

Decl. Appointment Counsel 1, ECF No. 20.)

27

address whether this new claim relates back to any of his initial

(See Mot. & Decl.

Petitioner does not

(See

He also does not

28

20

12CV0560 GPC(RBB)

1

claims.

2

8.)

3

(See generally Notice Regarding Extension Time 1, ECF No.

Absent an explanation of its factual basis, the Court cannot

4

conclude that this claim shares a common core of operative facts

5

with any of the initial claims.

6

Further, from the very limited information that was provided to

7

the Court, grounds one and three in the First Amended Petition

8

appear wholly unrelated to any purported prosecutorial misconduct

9

resulting in a violation of Brady v. Maryland, 373 U.S. 83 (1963).

See Mayle, 545 U.S. at 659.

10

(See First. Am. Pet. 6-7, 38-39, 44, ECF No. 16.)

11

type of facts relevant to an alleged error committed by the court

12

in instructing the jury differ significantly from those relevant

13

to prosecutorial misconduct.

14

Hernandez v. California, No. C 08–4085 SI (pr), 2010 WL 1854416,

15

at *4 (N.D. Cal. May 6, 2010) (holding that new prosecutorial

16

misconduct claim did not relate back to sufficiency of the

17

evidence or instructional error claims in the original petition);

18

Nordlof v. Clark, No. C 07-4899 MMC (PR), 2010 WL 761294, at *7-9

19

(N.D. Cal. Mar. 3, 2010) (holding that eight new claims of

20

prosecutorial misconduct did not relate back to other claims,

21

including the prosecution's alleged suppression of favorable

22

evidence).

23

The timing and

See Schneider, 674 F.3d at 1150;

The same is true for ground three, which concerns the

24

sufficiency of the evidence supporting Petitioner's conviction for

25

dissuading a witness.

26

2010 WL 4569917, at *4, *8 (S.D. Cal. Aug. 4, 2010) (holding that

27

new prosecutorial misconduct claim did not relate back to

28

sufficiency of the evidence claim in the original petition);

See Sua v. Tilton, No. 07cv1338–JM (BLM),

21

12CV0560 GPC(RBB)

1

Hernandez, 2010 WL 1854416, at *4 (same); Nordlof, 2010 WL 761294,

2

at *7-9 (same).

3

The claim in ground two regarding the trial court's alleged

4

error in denying Broadnax's motion for a new trial, however, may

5

be factually related to a claim of prosecutorial misconduct.

6

his amended motion for a new trial, Broadnax hints at a possible

7

prosecutorial misconduct claim regarding the prosecution's

8

purported withholding of a letter written by a key prosecution

9

witness.

In

(See Lodgment No. 1, Clerk's Tr. vol. 3, 508-09.)

10

Petitioner argued that the letter bore on the credibility of that

11

witness but was not discovered by defense counsel until after

12

trial.

(Id.)

13

trial.

(Id. at 507-13.)

14

"[g]iven the close scrutiny of this prized and protected witness

15

. . . Defense Counsel finds it strange that the December 8th

16

letter was not intercepted by the . . . District Attorney

17

Investigators having mail watches on [the witness] available by at

18

least Monday December 15th."

19

On this basis, Broadnax filed a motion for a new
In the motion, Petitioner stated that

(Id. at 509.)

Indeed, prosecutorial misconduct based on Brady violations
See United States

20

may be the basis for a motion for a new trial.

21

v. Palivos, 486 F.3d 250, 255 (7th Cir. 2007) (explaining what a

22

defendant must establish to obtain a new trial based on Brady).

23

Yet, it appears that Broadnax is unsure of the factual basis for

24

his prosecutorial misconduct claim.

25

Extension Time 1, ECF No. 8.) (requesting a stay in order to

26

research and identify issues for state habeas corpus petition).

27

Accordingly, Petitioner has not established that his prosecutorial

28

misconduct claim relates back to any of his initial claims.

22

(See Notice Regarding

12CV0560 GPC(RBB)

1
2

b.

Ineffective assistance of counsel claim

Next, the Court will consider whether Petitioner's new claim

3

of "INEFFECTIVE ASSISTANCE OF COUNSEL: FAILURE TO INVESTIGATE

4

NEWLY DISCOVERED EVIDENCE" relates back to claims in the First

5

Amended Petition.

6

No. 20.)

7

this new claim, nor does he otherwise allege that it is factually

8

related to any of the claims in his First Amended Petition.

9

generally id.; Notice Regarding Extension Time 1, ECF No. 8.)

(See Mot. & Decl. Appointment Counsel 1, ECF

Again, Broadnax does not provide the factual basis for

(See

10

Moreover, grounds one and three in the pending Petition appear to

11

be based on an entirely different set of facts.

12

Allison, No. 1:11–cv–00945–JLT, 2012 WL 3778836, at *4-6 (E.D.

13

Cal. Aug. 30, 2012) (holding that new ineffective assistance of

14

counsel claim did not relate back to either the instructional

15

error or sufficiency of the evidence claims in the original

16

petition); Hernandez, 2010 WL 1854416, at *4 (same); Nordlof, 2010

17

WL 761294, at *8-9 (same).

See De Leon v.

18

As to Broadnax's pending claim that his motion for a new

19

trial was wrongly denied, ground two, both this claim and his

20

ineffective assistance of counsel claim relate to "newly

21

discovered evidence."

22

with Mot. & Decl. Appointment Counsel 1, ECF No. 20.)

23

does not state what "newly discovered evidence" forms the basis of

24

his ineffective assistance of counsel claim.

25

Broadnax has failed to establish that his ineffective assistance

26

of counsel or prosecutorial misconduct claims relate back to any

27

of the claims in the First Amended Petition.

(Compare First Am. Pet. 27-28, ECF No. 16,
Petitioner

Consequently,

28

23

12CV0560 GPC(RBB)

1
2

IV.

CONCLUSION

Broadnax's First Amended Petition is not a mixed petition,

3

and Rhines does not address whether he is entitled to stay his

4

fully exhausted Petition while he exhausts his new claims.

5

Additionally, AEDPA's statute of limitations has expired, and

6

Petitioner has not sufficiently alleged that he is entitled to

7

statutory or equitable tolling, or that the relation back doctrine

8

applies to his new claims.

9

stay under Kelly.

As a result, he is not entitled to a

Therefore, the Motion, which he titled, "Notice

10

Regarding an Extension of Time in Which to File Petition for Writ

11

of Habeas Corpus in State Court" [ECF No. 8] is DENIED.

12

IT IS SO ORDERED.

13
14

DATED:

October 26, 2012

15
16
17

____________________________
Ruben B. Brooks, Magistrate Judge
United States District Court

cc:
Judge Curiel
All Parties of Record

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I:\Chambers Brooks\CASES\HABEAS\BROADNAX560\OrderReMotionStay v3.frm

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12CV0560 GPC(RBB)