Storey v. Paramo

Filing 69

ORDER Denying Motion for Extension of Time to File Objections; and ORDER Directing Petitioner to File Objections to Report and Recommendation. No later than 9/19/2019, Storey must file his objections. Signed by Chief Judge Larry Alan Burns on 9/3/2019. (All non-registered users served via U.S. Mail Service) (jdt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DONTAZE A. STOREY,

Case No.: 17cv23-LAB (MSB)
Petitioner,

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v.

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ORDER DENYING MOTION FOR
EXTENSION OF TIME TO FILE
OBJECTIONS; AND

DANIEL PARAMO,

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Respondent.

ORDER DIRECTING PETITIONER
TO FILE OBJECTIONS TO
REPORT AND
RECOMMENDATION

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Petitioner Dontaze Storey, a prisoner in state custody, filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on January 3, 2017. The petition was referred
to Magistrate Judge Bernard Skomal, and later to Magistrate Judge Michael Berg for a
report and recommendation. After lengthy proceedings during which Storey’s first three
motions for a stay and abeyance were denied, he presented his unexhausted claims to the
California Supreme Court, which denied them. The Court then denied as moot his fourth
motion for a stay and abeyance, and he filed his amended petition.
After receiving briefing, Judge Berg on March 22, 2019 issued his 80-page report
and recommendation (the “R&R”), which recommended denying the petition. Storey
requested, and was granted, two extensions of time to prepare and file his objections. In its
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order granting the second extension, the Court cautioned Storey that any further requests

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for extension of time must be supported by a showing of extraordinarily good cause. In

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early July, Storey filed a motion for a third extension, explaining that about two weeks

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earlier during a search by prison officials, his draft objections had disappeared from his

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cell and his legal papers were left in disarray. He therefore asked for a 30-day extension to

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prepare and file his objections, which he believed would be enough. The Court granted

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him more time than he requested, and required that he file his objections by August 12,

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2019. Again, the Court cautioned him that no extensions would be granted without a

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showing of extraordinarily good cause.

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Storey filed no objections, although a document styled as a motion for stay and

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abeyance was forwarded to the chambers of Magistrate Judge Berg for acceptance or

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rejection by discrepancy order. On August 27, the Court adopted the R&R. (See Docket

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no. 66.)

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The unknown document was eventually forwarded to the undersigned District Judge,

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and accepted for filing. As it turns out, the Motion asked the Court either for a stay and

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abeyance, or alternatively for more time to file objections to the R&R.

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Storey apparently does not actually want to make use of the “stay and abeyance”

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procedure, which was explained to him earlier in the case and which is unnecessary. Rather,

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he asks that the Court stay the entire case indefinitely, until he gets his opposition prepared.

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There is no reason to stay the case, however, when an extension of time would do. And in

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no event will the Court stay the action indefinitely. See Rhines v. Weber, 544 U.S. 269, 277

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(2005) (emphasizing AEDPA’s timeliness concerns, and instructing federal courts not to

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stay mixed petitions indefinitely).

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The Court does not insist on strict time limits where “restraints resulting for a pro se

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prisoner plaintiff’s incarceration prevent timely compliance with court deadlines.”

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Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). That being said, Congress has given

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clear direction to reduce delays in habeas review. See Rhines, 544 U.S. at 276. And the

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Supreme Court has made clear that lower courts must not allow petitioner to “frustrate
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AEDPA’s goal of finality by dragging out definitely their federal habeas review.” Id. at

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278. See also Custis v. United States, 511 U.S. 485, 497 (1994) (citing United States v.

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Addonizio, 442 U.S. 178, 184 n.11 (1979)) (emphasizing the importance of preventing

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delays in habeas review even in non-capital cases).

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The reasons Storey gives for his latest extension request merely repeat reasons he

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has given before. He points out that he has no legal training, he is not represented by

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counsel, and that as a prisoner he is doing all his research in the prison law library. He also

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points out that the R&R is 80 pages long, that he lost his copy of his objections and has

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had to start over, and that after the search his papers were disorganized. These were all

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raised and considered before, and the Court granted lengthy extensions based on these

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arguments. The Court was fully aware of these facts and took them into account when

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setting the deadlines. The Court also repeatedly cautioned him that he should not expect

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further extensions to be granted for the same reasons.

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Storey’s suggestion that he needs as much time or more to prepare his objections

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after the search than he did before it is implausible. He is familiar with the case against

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him, and has already prepared one nearly-complete draft of his objections. He has copies

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of documents he could use as outlines for his objections, such as his state petitions for

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review, and his traverse. Although he complains that he is having trouble locating portions

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of the record to cite, the R&R includes citations to particular pages. And in spite of its

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length, much of the R&R does not require objections anyway. For example, many pages

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of it consist of lengthy quotations from the record, summaries of his claims and arguments,

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and other material not likely to be objectionable. The portion he might want to prepare

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objections to is therefore significantly less than 80 pages long.

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He does not adequately explain what he was doing during the last 30-day extension

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of time, why his last motion told the Court that 30 days would be enough, or why he waited

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until after 5 p.m. on August 12 to seek his fourth extension. His explanation that his papers

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are still in disarray after the search (Mot. at 2:14–16) is unpersuasive, given that he has had

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two months to put them back in order. Nor has he ever explained what objections he is
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thinking of making. Bearing in mind that he has had over five months to work on them, he

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should have some idea of what he intends to say.

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Storey admits that he has not shown extraordinarily good cause. (Mot at 1:28.)

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Instead, he claims that the arguments he raised before show good cause for another

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extension. In light of the Court’s repeated warnings that extraordinarily good cause was

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required before any more extensions would be granted, he should not have assumed that

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the arguments he raised before would be good enough and ignored the deadline. He also

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should not have presumed that his fifth motion for a stay would be granted even though the

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four previous ones had been denied. Instead, he should have assumed that the Court’s

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orders meant what they said, and filed his objections, which he says he has partially

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completed. He could also have requested more time to prepare and file more objections,

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but at least he would have had some objections filed on time. Because the motion does not

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show extraordinarily good cause, or even good cause for an extension, it is DENIED.

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The Court is, however, willing to entertain a motion to reconsider its order denying

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the petition. No later than September 19, 2019, Storey must file his objections, which

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should be as complete as he can make them. He should also summarize any objections he

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did not have time to research. The Court will treat these objections as a motion for relief

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from judgment, under Fed. R. Civ. P. 59.

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IT IS SO ORDERED.
Dated: September 3, 2019

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