-SKO (HC) Jones v. Tate, No. 1:2010cv00068 - Document 34 (E.D. Cal. 2011)
Court Description: ORDER RE: FINDINGS AND RECOMMENDATIONS RE: Respondent's Motion to Dismiss The Petition 26 , 18 ; ORDER ADOPTING Findings That The Petition is a Mixed Petition Containing Specific Exhausted and Unexhausted Claims 26 , 1 ; ORDER DENING IN PART Respondent's Motion to Dismiss The Petition 18 ; ORDER REFERRING The Action to The Magistrate Judge for Consideration of Petitioner's Motion for a Stay 32 , signed by Chief Judge Anthony W. Ishii on 9/11/11. (Hellings, J)
Download PDF
<![CDATA[
-SKO (HC) Jones v. Tate Doc. 34 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FREDRICK JONES JR., 10 Petitioner, 11 12 13 v. MIKE McDONALD, WARDEN, 14 Respondent. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—00068-AWI-SKO-HC ORDER RE: FINDINGS AND RECOMMENDATIONS RE: RESPONDENT’S MOTION TO DISMISS THE PETITION (DOCS. 26, 18) ORDER ADOPTING FINDINGS THAT THE PETITION IS A MIXED PETITION CONTAINING SPECIFIC EXHAUSTED AND UNEXHAUSTED CLAIMS (DOC. 26, 1) ORDER DENYING IN PART RESPONDENT’S MOTION TO DISMISS THE PETITION (DOC. 18) 16 17 ORDER REFERRING THE ACTION TO THE MAGISTRATE JUDGE FOR CONSIDERATION OF PETITIONER’S MOTION FOR A STAY (DOC. 32) 18 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 24 302 and 304. Pending before the Court are findings and 25 recommendations filed on February 24, 2011, to grant Respondent’s 26 motion to dismiss the petition as a “mixed” petition containing 27 both exhausted and unexhausted claims, and 2) Petitioner’s 28 1 Dockets.Justia.com 1 objections to the findings and recommendations, filed on June 3, 2 2011, which included his motion for a stay of the proceedings. 3 I. 4 Petitioner’s claims in this case concern a criminal Background 5 conviction and errors allegedly occurring during the pretrial and 6 trial proceedings as well as during a limited remand ordered upon 7 an initial appeal from the conviction in which the trial court 8 was directed to determine if a retrospective competency hearing 9 was feasible, to hold a retrospective hearing if possible, and to 10 affirm the judgment of conviction if Petitioner were found to be 11 competent. 12 Respondent filed a motion to dismiss the petition on October 13 15, 2010. 14 motion that were filed by the Magistrate Judge, it was concluded 15 that the following claims raised in the petition were exhausted: 16 1) Petitioner’s third claim that the appellate court erred in the 17 initial appeal by not responding to Petitioner’s issue concerning 18 the trial court’s ruling on his motion for ancillary funds; and 19 2) Petitioner’s fourth claim that the appellate remand to the 20 trial court and the competency trial held on remand were 21 improperly limited to Petitioner’s competence to stand trial, and 22 did not include adequate consideration of Petitioner’s competence 23 to assist counsel or waive counsel. 24 In the findings and recommendations concerning the However, it was concluded that the following claims raised 25 in the petition had not been presented to the California Supreme 26 Court and thus were not exhausted: 1) Petitioner’s first claim 27 that in the initial appeal, the appellate court erred by 28 remanding, but not reversing, the judgment in Petitioner’s case 2 1 when it found that Petitioner was denied counsel in a competency 2 proceeding; 2) Petitioner’s second, two-part claim that on 3 remand, the trial court erred by finding that a retrospective 4 competency determination was feasible, and by placing the burden 5 on Petitioner to prove incompetence; 3) Petitioner’s third claim 6 that the appellate court erred in the initial appeal by not 7 responding to grounds raised in the opening brief that included 8 the absence of representation by counsel at the competency 9 hearings, the argument that a retrospective competency hearing 10 would not remedy the situation, the trial court’s failure to 11 perform its duty to revoke Petitioner’s pro se status when it was 12 apparent that he was unable or unwilling to abide by procedural 13 rules, motions to disqualify judges and for ancillary services, 14 the erroneous failure of the trial court to appoint another judge 15 to determine what ancillary funds would be granted to Petitioner, 16 the trial court’s holding of hearings on funding in the presence 17 of the County Counsel and permitting County Counsel to argue 18 against funding, and the trial court’s improper response to the 19 motion for ancillary funds under California case law and 20 statutory law; 4) Petitioner’s fifth claim that the trial court 21 failed to explain to Petitioner that he had a right to appointed 22 counsel during the competency hearing; 5) Petitioner’s sixth 23 claim that the trial court erred in not appointing Petitioner his 24 counsel of choice for the competency proceedings on remand; 6) 25 Petitioner’s seventh claim that the trial court erred by finding 26 that the prosecution had demonstrated that two doctors’ reports 27 constituted a preponderance of the evidence of competence; 7) 28 Petitioner’s eighth, two-part claim that the trial court erred by 3 1 not appointing counsel during the first competency hearing and 2 then, after remand, by appointing a “Conflict of Int[e]rest 3 Counsel” over Petitioner’s objections and despite three Marsden 4 hearings (pet. 13); 8) Petitioner’s ninth claim (apparently a 5 repetition of the second portion of his second claim) that during 6 the competency proceedings after remand, the trial court erred by 7 placing the burden of proof on Petitioner instead of requiring an 8 affirmative showing of competency by the prosecution; and 9) 9 Petitioner’s tenth claim that the lower courts overlooked 10 Petitioner’s claim pursuant to People v. James Ary, Jr., 173 11 Cal.App.4th 80 (2009). 12 In the findings and recommendations, the Magistrate Judge 13 recommended that the Court grant Petitioner thirty (30) days to 14 file a motion to withdraw the unexhausted claims; if Petitioner 15 did not file such a motion, the Court would assume that 16 Petitioner desired to return to state court to exhaust the 17 unexhausted claims, and the Court would grant the motion to 18 dismiss and would dismiss the petition without prejudice. 19 20 21 The findings and recommendations were served on Petitioner on February 24, 2011. Pursuant to Petitioner’s motion for an extension of time to 22 file objections, the Court extended the deadline until on or 23 about May 10, 2011. 24 filed objections along with a motion for a stay and abeyance of 25 the action. 26 Respondent on May 31, 2011. 27 Petitioner detailed his problems gaining access to the law 28 library and receiving notice of the action taken on his request (Doc. 30.) On June 3, 2011, Petitioner The objections and request for stay were served on (Doc. 32, 52.) 4 In the objections, 1 for an extension of time to file objections. 2 Respondent has not raised any argument concerning alleged 3 untimeliness of the objections. 4 Petitioner’s objections to be timely. 5 (Doc. 32, 2.) The Court thus considers Although the findings and recommendations granted Respondent 6 fourteen days to reply to any objections, Respondent has not 7 replied to the objections despite the passage of the fourteen-day 8 period for doing so. 9 It is further noted that pursuant to local rules, the time 10 for filing an opposition to the motion for a stay has passed, but 11 no opposition has been filed by Respondent. 12 II. Adoption of the Magistrate Judge’s Findings and Recommendations 13 In accordance with the provisions of 28 U.S.C. § 636 14 (b)(1)(C), this Court has conducted a de novo review of the case. 15 The undersigned has carefully reviewed the entire file and has 16 considered the objections; the undersigned has determined there 17 is no need to modify the findings and recommendations based on 18 the points raised in the objections. The Court finds that the 19 report and recommendation is supported by the record and proper 20 analysis with respect to the findings that Petitioner exhausted 21 some claims in the petition but failed to exhaust state court 22 remedies with respect to other claims in the petition. 23 However, after the Magistrate Judge filed the findings and 24 recommendations, Petitioner filed a motion for a stay of the 25 petition in order to permit Petitioner to exhaust state court 26 remedies without complying with the recommendation of the 27 Magistrate Judge, which was to require Petitioner to amend the 28 5 1 petition to withdraw unexhausted claims before proceeding with 2 the petition. 3 pursuant to Rhines v. Weber, 544 U.S. 269 (2005). 4 seeks relief in the motion for a stay that relates to and 5 potentially affects the Respondent’s prayer for dismissal in the 6 motion to dismiss. 7 file opposition to the motion for a stay, the motion is ripe for 8 decision. 9 Petitioner thus appears to be seeking a stay Petitioner Further, in view of Respondent’s failure to Accordingly, the Court will adopt the findings of the 10 Magistrate Judge concerning the mixed nature of the petition and 11 the claims alleged therein. 12 However, in view of the pendency of Petitioner’s motion for 13 a Rhines stay, the Court will decline to adopt the Magistrate 14 Judge’s recommendation that the Court order the immediate 15 amendment of the petition or dismissal of the case. 16 Court will refer motion for a stay to the Magistrate Judge, who 17 can consider and decide the question of the appropriate 18 disposition of the mixed petition upon consideration of 19 Petitioner’s motion for a stay. 20 Accordingly, it is ORDERED that: 21 1) Instead, the The findings and recommendations filed on February 24, 22 2011, are ADOPTED in part insofar as they determine that 23 Petitioner’s petition is a mixed petition containing specific, 24 exhausted and unexhausted claims; and 25 2) Respondent’s motion to dismiss the petition is DENIED in 26 part insofar as Respondent sought by the motion the immediate 27 amendment or dismissal of the petition; and 28 3) The case is REFERRED to the Magistrate Judge for 6 1 consideration and determination of Petitioner’s motion for a stay 2 of the proceedings to permit him to exhaust claims without 3 amending the petition to delete unexhausted claims. 4 IT IS SO ORDERED. 5 6 Dated: 0m8i78 September 11, 2011 CHIEF UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
