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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 SOUTHERN DISTRICT OF CALIFORNIA Andrew MUNDY, 11 Case No.: 17-cv-0174-CAB-AGS Petitioner, 12 v. 13 REPORT AND RECOMMENDATION TO DENY PETITIONER’S MOTION FOR A STAY (ECF No. 6) AND DISMISS UNEXHAUSTED CLAIM Raymond MADDEN, 14 Respondent. 15 16 The California Court of Appeal previously ruled that petitioner Andrew Mundy’s 17 lengthy sentence passed constitutional muster, and that he was “precisely the type of 18 recidivist offender targeted by [California’s] Three Strikes law.” (ECF No. 10-1, at 19; see 19 id. at 12-17.) In this habeas proceeding, Mundy seeks review of that ruling and also raises 20 a new argument never presented to the state courts: that his trial and appellate attorneys 21 were ineffective for failing to challenge the constitutionality of his sentence. But his 22 attorneys did contest the constitutionality of his sentence, 1 and the state appellate court 23 24 25 26 27 28 1 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.) 1 17-cv-0174-CAB-AGS 1 squarely rejected that argument. Thus, Mundy’s new claim is plainly meritless. And his 2 motion for a stay to pursue this unexhausted claim, therefore, fails. 3 Mundy seeks a stay under either Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. 4 Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other gds. by Robbins v. Carey, 481 5 F.3d 1143 (9th Cir. 2007). But neither a Rhines stay nor a Kelly stay should be granted to 6 exhaust a plainly meritless claim. Rhines, 544 U.S. at 277 (“[T]he district court would 7 abuse its discretion if it were to grant [the petitioner] a [Rhines] stay when his unexhausted 8 claims are plainly meritless.” (citation omitted)); Knowles v. Muniz, 228 F. Supp. 3d 1009, 9 1016 (C.D. Cal. 2017) (“[A] Kelly stay will be denied when the court finds such a stay 10 would be futile,” such as when “petitioner seeks a stay to exhaust a meritless claim.” 11 (citations omitted)). 12 The Court recommends that Mundy’s motion for a stay be DENIED and that his 13 unexhausted ineffective-assistance-of-counsel claim be DISMISSED. Upon being served 14 with a copy of this report, each party has 14 days to file any objections. See Fed. R. Civ. P. 15 72(b)(2). A party may respond to any such objection within 14 days of being served with 16 it. See id. 17 Dated: December 4, 2017 18 19 20 21 22 23 24 25 26 27 28 2 17-cv-0174-CAB-AGS

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