(HC) Hawk v. Davey et al, No. 1:2016cv00795 - Document 6 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS to Grant Petitioner's 2 Application to Stay and Abey Petition; ORDER Directing Clerk to Assign District Judge signed by Magistrate Judge Erica P. Grosjean on 06/28/2016. Referred to Judge O'Neill; Objections to F&R due by 7/15/2016.(Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 DAVID HAWK, 10 Case No. 1:16-cv-00795-EPG-HC Petitioner, 11 FINDINGS AND RECOMMENDATION TO GRANT PETITIONER’S APPLICATION TO STAY AND ABEY PETITION v. 12 DAVID DAVEY, et al., 13 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE Respondents. 14 (ECF No. 2) 15 Petitioner is a state prisoner, represented by counsel, proceeding with a petition for writ 16 17 of habeas corpus pursuant to 28 U.S.C. § 2254. 18 I. 19 BACKGROUND Petitioner challenges his convictions sustained in the Kings County Superior Court for 20 21 murder for financial gain, wilfully failing to file tax returns, misappropriating trust property in 22 excess of $50,000, making false financial statement, and perjury. Petitioner was sentenced to life 1 23 without the possibility of parole plus nine years. (ECF No. 1 at 1). The California Court of 24 Appeal, Fifth Appellate District, affirmed the judgment on August 27, 2014, and the California 25 Supreme Court denied the petition for review on November 12, 2014. The United States 26 Supreme Court denied certiorari on April 27, 2015. (Id. at 2). Petitioner’s state habeas petitions 27 filed in the California Court of Appeal, Fifth Appellate District, and the California Supreme 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 1 1 Court were summarily denied on April 26, 2016, and June 8, 2016, respectively. (Id. at 3). 2 On June 8, 2016, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 3 1). Petitioner raises the following claims in his federal habeas petition: (1) the prosecution’s 4 failure to provide exculpatory and impeachment evidence as required by Brady v. Maryland, 373 5 U.S. 83 (1963); (2) the required prejudice showing under Brady; (3) the trial court’s failure to 6 grant change of venue; and (4) insufficient evidence to support Petitioner’s murder conviction. 7 II. 8 DISCUSSION 9 A petitioner in state custody proceeding with a petition for writ of habeas corpus must 10 exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion 11 requirement by providing the highest state court with a full and fair opportunity to consider each 12 claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 13 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 14 Petitioner acknowledges that his fourth claim for relief is now unexhausted based on 15 newly discovered evidence. (ECF No. 1 at 5, ECF No. 2). Petitioner requests the Court to hold 16 the petition in abeyance pending resolution of the unexhausted claim in state court pursuant to 17 Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 2 at 3). Given “that a motion to stay and abey 18 section 2254 proceedings is generally (but not always) dispositive of the unexhausted claims,” 19 the undersigned shall submit findings and recommendation rather than rule on the motion. 20 Mitchell v. Valenzuela, 791 F.3d 1166, 1171, 1173–74 (9th Cir. 2015). 21 Under Rhines v. Weber, “stay and abeyance” is available only in limited circumstances, 22 and only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims 23 are not “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory 24 litigation tactics. 544 U.S. at 277–78. Here, the victim’s remains were discovered on March 22, 25 2016, and Petitioner has a motion pending in state court for the remains to be forensically 26 examined and for DNA evidence to be tested. The motion currently is set for hearing on August 27 29, 2016. (ECF No. 2 at 2). In his fourth claim for relief, Petitioner asserts that there was no 28 evidence that Petitioner had been present in the victim’s home and van at the time of her 2 1 disappearance, and that the prosecution did not refute Petitioner’s claim that he was not present. 2 (ECF No. 1 at 5). Petitioner contends that the newly discovered evidence provides additional 3 support that Petitioner was not present at the time of the homicide. (ECF No. 2 at 2). The Court 4 finds that there is good cause for the failure to exhaust, that the unexhausted claim is not plainly 5 meritless, and that Petitioner has not intentionally engaged in dilatory litigation tactics. See 6 Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011). 7 III. 8 RECOMMENDATION AND ORDER 9 Based on the foregoing, IT IS HEREBY RECOMMENDED that Petitioner’s application 10 to stay and abey the petition pursuant to Rhines be GRANTED. Further, the Court DIRECTS the 11 Clerk of Court to assign a District Court Judge to the present matter. 12 This Findings and Recommendation is submitted to the United States District Court 13 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 14 of the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within FOURTEEN (14) days after service of the Findings and Recommendation, Petitioner 16 may file written objections with the Court and serve a copy on all parties. Such a document 17 should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The 18 assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 19 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 20 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 21 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 24 IT IS SO ORDERED. Dated: June 28, 2016 /s/ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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