Casner v. Dickinson
Filing
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ORDER signed by Magistrate Judge Sheila K. Oberto on 11/21/2011 permitting Petitioner to file supplemental briefing and materials concerning motion to stay. ( Filing Deadline: 12/27/2011).(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KENNETH H. CASNER,
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Petitioner,
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v.
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KATHLEEN DICKINSON, Warden,
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Respondent.
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1:10-cv—01081-SKO-HC
ORDER PERMITTING PETITIONER TO
FILE NO LATER THAN THIRTY (30)
DAYS AFTER SERVICE OF THIS ORDER
SUPPLEMENTAL BRIEFING AND
MATERIALS CONCERNING HIS MOTION
FOR A STAY PURSUANT TO RHINES V.
WEBER (Doc. 7)
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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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Pursuant to 28 U.S.C. § 636(c)(1), Petitioner has consented to
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the jurisdiction of the United States Magistrate Judge to conduct
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all further proceedings in the case, including the entry of final
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judgment, by manifesting consent in a signed writing filed by
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Petitioner on July 2, 2010 (doc. 5).
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Petitioner’s response to the Court’s order concerning withdrawal
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of unexhausted claims, which in substance is Petitioner’s motion
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for a stay of the proceedings pursuant to Rhines v. Weber, 544
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U.S. 269, 276 (2005) to enable Petitioner to exhaust state court
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remedies as to some of the claims in the petition.
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Pending before the Court is
The petition raises various claims concerning Petitioner’s
Tuolumne County convictions of spousal rape, kidnaping, burglary,
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and threats with various enhancements concerning a firearm.
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(Pet. 1.)
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The Court’s initial review of the petition in the instant
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case disclosed that Petitioner raises the following grounds in
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the petition:
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counsel based on a) counsel’s failure to move to strike
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inadmissible character evidence in the form of testimony of a car
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dealer that she was scared of Petitioner when he bought a car
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before the incidents constituting the offenses, and b) trial and
1) a two-part claim of ineffective assistance of
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appellate counsel’s failure to raise Petitioner’s mental
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condition in his defense (pet. 5-6); 2) the trial court’s failure
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to instruct that the victim’s hearsay statement to a medical
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examiner was not admissible for the truth of the matters
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asserted, which resulted in improper bolstering of the victim’s
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trial testimony (id. at 7); 3) ineffective assistance of trial
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counsel in failing to request an instruction concerning the use
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of the prior hearsay statement of the victim (id. at 8-9); and 4)
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cumulative error (id. at 10-11).
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In response to the Court’s order to show cause why the
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petition should not be dismissed because Petitioner had not
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alleged that he had exhausted state court remedies as to all the
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claims, Petitioner provided the Court with a copy of the petition
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for review that he filed in the California Supreme Court on
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September 9, 2009.
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cumulative error, as well as the second portion of the first
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claim concerning trial and appellate counsel’s failure to raise
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Petitioner’s mental condition in his defense, were not raised
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before the California Supreme Court.
It revealed that the fourth claim regarding
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Thus, as to these claims,
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Petitioner has failed to exhaust his state court remedies.
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On July 11, 2011, the Court directed Petitioner to withdraw
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his unexhausted claims within thirty days or suffer dismissal of
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the action.
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response in which he moved for an order pursuant to Rhines v.
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Weber, 544 U.S. 269 (2005) staying all claims pending exhaustion
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of state court remedies as to the unexhausted claims.
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Court were unwilling to enter such a stay order, Petitioner
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requested that the unexhausted claims be dismissed without
In response, Petitioner filed on August 9, 2011, a
If the
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prejudice and that the Court proceed to adjudicate the petition
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as to the exhausted claims.1
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A district court has discretion to stay a petition which it
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may validly consider on the merits.
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269, 276 (2005);
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2009).
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proceedings; however, this discretion is circumscribed by the
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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
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Rhines, 544 U.S. at 276-77.
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“stay and abeyance [is] available only in limited circumstances”
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and “is only appropriate when the district court determines there
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was good cause for the petitioner’s failure to exhaust his claims
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first in state court.”
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petition pursuant to Rhines is required only if 1) the petitioner
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has good cause for his failure to exhaust his claims in state
Rhines v. Weber, 544 U.S.
King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.
Under Rhines, the Court has discretion to stay
In light of AEDPA’s objectives,
Id. at 277-78.
A stay of a mixed
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Petitioner did not move for the alternate form of stay pursuant to
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), in which unexhausted claims are
withdrawn from the petition, the exhausted claims are held in abeyance while
state court remedies are being exhausted, and then the petitioner moves to
amend the petition to add the newly exhausted claims upon completion of the
state court processes of exhaustion.
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court; 2) the unexhausted claims are potentially meritorious; and
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3) there is no indication that the petitioner intentionally
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engaged in dilatory litigation tactics.
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mental condition may constitute good cause under Rhines.
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Berry v. Jacquez, 2011 WL 4738336, *5 (E.D.Cal. May 21, 2011).
Id.
A petitioner’s
See,
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In his motion for a stay, Petitioner asserted that the
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mental condition that formed the basis of the defenses that his
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counsel were allegedly ineffective in not raising had also
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resulted in his transfer from the general prison population to
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the California Medical Facility at Vacaville and had impaired his
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ability to pursue the claims in the state courts to date.
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Further, his counsel had not advised him of the claims or the
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need to pursue them.
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assertions were unsworn.
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desired further evidentiary showing of Petitioner’s mental
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infirmities as a condition of a stay, he requested thirty days in
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which to provide it.
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(Doc. 10, 1:23-28.)
Petitioner’s
Petitioner stated that if the Court
The Court must determine whether or not there is good cause
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for failing to exhaust the unexhausted claims and whether
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Petitioner was sufficiently diligent in pursuing his claims.
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Court presently has little information concerning Petitioner’s
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mental condition and how it affected his ability to exhaust his
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state court remedies as to the pertinent claims
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Court has little information as to what steps have been taken to
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exhaust state court remedies as to the unexhausted claims, and
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when such steps were taken.
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///
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///
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The
Further, the
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Accordingly, Petitioner may file supplemental briefing and
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evidentiary materials in support of his motion for a Rhines stay
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no later than thirty (30) days after the date of service of this
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order.
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IT IS SO ORDERED.
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Dated:
ie14hj
November 21, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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