Mundy v. Madden

Filing 11

REPORT AND RECOMMENDATION to Deny Petitioner's Motion for a Stay [ECF No. 6 ] and Dismiss Unexhausted Claim. Signed by Magistrate Judge Andrew G. Schopler on 12/4/2017.(All non-registered users served via U.S. Mail Service)(jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA
Andrew MUNDY,

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Case No.: 17-cv-0174-CAB-AGS
Petitioner,

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v.

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REPORT AND RECOMMENDATION
TO DENY PETITIONER’S MOTION
FOR A STAY (ECF No. 6) AND
DISMISS UNEXHAUSTED CLAIM

Raymond MADDEN,

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Respondent.

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The California Court of Appeal previously ruled that petitioner Andrew Mundy’s

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lengthy sentence passed constitutional muster, and that he was “precisely the type of

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recidivist offender targeted by [California’s] Three Strikes law.” (ECF No. 10-1, at 19; see

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id. at 12-17.) In this habeas proceeding, Mundy seeks review of that ruling and also raises

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a new argument never presented to the state courts: that his trial and appellate attorneys

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were ineffective for failing to challenge the constitutionality of his sentence. But his

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attorneys did contest the constitutionality of his sentence, 1 and the state appellate court

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Appellate counsel urged the California Court of Appeal to reach the constitutional
sentencing issue because either: (1) the trial attorney’s general sentencing objections
adequately preserved the claim or (2) the failure to raise more specific objections
constituted ineffective assistance of counsel. (ECF No. 6, Exh. A, at 9-11.) The appellate
court never addressed the waiver argument and presumably found the issue preserved
below. (See generally ECF No. 10-1.)
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17-cv-0174-CAB-AGS

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squarely rejected that argument. Thus, Mundy’s new claim is plainly meritless. And his

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motion for a stay to pursue this unexhausted claim, therefore, fails.

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Mundy seeks a stay under either Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other gds. by Robbins v. Carey, 481

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F.3d 1143 (9th Cir. 2007). But neither a Rhines stay nor a Kelly stay should be granted to

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exhaust a plainly meritless claim. Rhines, 544 U.S. at 277 (“[T]he district court would

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abuse its discretion if it were to grant [the petitioner] a [Rhines] stay when his unexhausted

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claims are plainly meritless.” (citation omitted)); Knowles v. Muniz, 228 F. Supp. 3d 1009,

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1016 (C.D. Cal. 2017) (“[A] Kelly stay will be denied when the court finds such a stay

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would be futile,” such as when “petitioner seeks a stay to exhaust a meritless claim.”

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(citations omitted)).

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The Court recommends that Mundy’s motion for a stay be DENIED and that his

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unexhausted ineffective-assistance-of-counsel claim be DISMISSED. Upon being served

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with a copy of this report, each party has 14 days to file any objections. See Fed. R. Civ. P.

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72(b)(2). A party may respond to any such objection within 14 days of being served with

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it. See id.

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Dated: December 4, 2017

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17-cv-0174-CAB-AGS