(HC) Kessler v. Hornbeak, No. 1:2010cv00322 - Document 20 (E.D. Cal. 2010)

Court Description: ORDER GRANTING 15 Petitioner's Motion for Stay and Abeyance; ORDER STAYING the Action Pending Exhaustion of State Court Remedies; and ORDER DIRECTING Petitioner to File Periodic Status Reports, signed by Magistrate Judge Sandra M. Snyder on 10/20/2010. CASE STAYED. Petitioner's First Status Report due by 1/25/2011. (Jessen, A)
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(HC) Kessler v. Hornbeak Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 13 KELLY ALICE KESSLER, ) ) Petitioner, ) ) ) v. ) ) TINA HORNBEAK, Warden, et al.,) ) Respondents. ) ) ) 1:10-cv—0322-OWW-SMS-HC ORDER GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE (Docs. 15, 1) ORDER STAYING THE ACTION PENDING EXHAUSTION OF STATE COURT REMEDIES ORDER DIRECTING PETITIONER TO FILE PERIODIC STATUS REPORTS 14 15 16 17 Petitioner is a state prisoner proceeding with the 18 assistance of counsel with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. 20 the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. 22 motion to stay the action, which was filed on March 12, 2010, 23 shortly after the filing of the petition on February 23, 2010. 24 Respondent, who has appeared for the limited purpose of 25 responding to Petitioner’s motion to stay the action, has sent a 26 letter to the Court indicating that Respondent does not oppose 27 Petitioner’s motion for stay and abeyance. 28 filed August 17, 2010.) The matter has been referred to Pending before the Court is Petitioner’s (Doc. 19, dated and 1 Dockets.Justia.com 1 I. Background 2 Petitioner, who is serving a sentence of twenty-six (26) 3 years to life, alleges claims concerning her conviction in 2003 4 in the Tuolumne County Superior Court of felony possession of a 5 firearm with a prior conviction and of related misdemeanors. 6 (Pet. 13-14.) 7 subject of ongoing state court proceedings. 8 claims (claims I and III) concern allegedly ineffective 9 assistance of trial counsel in failing to investigate Petitioner admits that two of her claims are the (Id. at 14.) These 10 Petitioner’s prior Nevada burglary conviction and to inform her 11 of her right to request bifurcation of the trial of the prior 12 conviction (claim I, Pet. 59-81); and the prosecution’s failure 13 to disclose impeachment evidence concerning the impaired vision 14 of the sole eye-witness to the crime (claim III, Pet. 46-48, 104- 15 23). 16 On October 30, 2009, the California Court of Appeal issued 17 an order to show cause regarding the unexhausted claims and 18 remanded them to the trial court for further proceedings. 19 13.) 20 of petitions for review which the California Supreme Court 21 denied. 22 petition because of uncertainty regarding a future determination 23 of the timeliness of the Petitioner’s claims. 24 Petitioner anticipates that amendments of the petition are 25 possible and even likely because at the time the petition was 26 filed, Petitioner had not been afforded discovery or an 27 evidentiary hearing during the state post-conviction processes. 28 (Id. at 15.) (Pet. The other two claims are exhausted, having been the subject (Id. at 14-15.) Petitioner has filed a protective 2 Further, 1 The Court has not completed its initial screening of the 2 petition, and Respondent has not been directed to order a 3 response to the petition.1 4 copy of the petition and the motion for stay and abeyance. Respondent has been served with a 5 II. 6 A district court may not adjudicate a petition containing Analysis 7 both exhausted and unexhausted claims. 8 509, 522 (1982). 9 limitations provided for by the Antiterrorism and Effective Death Rose v. Lundy, 455 U.S. However, since the advent of the statute of 10 Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d), it is 11 recognized that a district court has the inherent authority to 12 exercise its discretion to stay a mixed petition to allow the 13 petitioner to present unexhausted claims to the state court in 14 the first instance and then return to federal court for review of 15 the perfected petition. 16 (2005). 17 circumstances where 1) the district court determines there was 18 good cause for the petitioner’s failure to exhaust his claims 19 first in state court, 2) the petitioner has not engaged in 20 abusive litigation tactics or intentional delay, and 3) the 21 unexhausted claims are not plainly meritless. 22 Because of the underlying purposes of the AEDPA to reduce delays 23 in the execution of state and federal criminal sentences and to 24 encourage petitioners to seek relief initially from the state 25 courts, a stay should endure for only a reasonable time and 26 should be explicitly conditioned on the petitioner’s pursuit of Rhines v. Weber, 544 U.S. 269, 275-77 Stay and abeyance are available only in limited Id. at 277-78. 27 1 28 Respondent did file a notice that she declined to proceed before a Magistrate Judge. (Doc. 16, filed March 12, 2010.) 3 1 2 state court remedies within a brief interval. Id. The Supreme Court has not articulated what constitutes good 3 cause under Rhines, but it has stated that “[a] petitioner's 4 reasonable confusion about whether a state filing would be timely 5 will ordinarily constitute ‘good cause’ for him to file” a 6 “protective” petition in federal court. 7 U.S. 408, 416 (2005). 8 standard is a less stringent one than that for good cause to 9 establish equitable tolling, which requires that extraordinary Pace v. DiGuglielmo, 544 The Ninth Circuit has held that the 10 circumstances beyond a petitioner's control be the proximate 11 cause of any delay. 12 Cir. 2005). 13 stay-and-abeyance should be available only in limited 14 circumstances.” 15 see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), 16 cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276 17 (2009) (concluding that a petitioner’s impression that counsel 18 had exhausted a claim did not demonstrate good cause). 19 Jackson v. Roe, 425 F.3d 654, 661-62 (9th The Ninth Circuit has recognized, however, that “a Id. at 661 (internal quotation marks omitted); Here, Petitioner has set forth specific facts tending to 20 show a reasonable basis for confusion concerning the timeliness 21 of the state court filings. 22 involve ineffective assistance of trial counsel and reflect 23 repeated efforts to exhaust state court remedies despite an 24 unusual and protracted lack of cooperation of trial counsel. 25 Court concludes that the unique circumstances of the present case 26 constitute good cause for Petitioner’s failure to exhaust the 27 unexhausted claims. 28 The allegations of the petition The Further, the allegations of the petition tend to reflect an 4 1 absence of intentional delay. 2 concerning claim III, pertaining to a failure to disclose 3 material impeaching evidence concerning the eye-witness, were not 4 discovered until December 2003, after Petitioner was convicted. 5 (Pet. 26: 12-19.) 6 2004, and review was denied by the California Supreme Court in 7 late July 2004. 8 who it is represented was ineligible to practice during part of 9 the pre-trial period he represented Petitioner and was later It appears that the facts The conviction was affirmed on appeal in May (Id. at 23:8-10.) Petitioner’s trial counsel, 10 disbarred (Pet. 22 n.4), failed to cooperate with post-conviction 11 counsel’s investigation for over a year, which appears to have 12 contributed to the passage of time until the filing of the first 13 state habeas petition in February 2005 (id. at 24:7-9, 27:18-21). 14 Petitioner proceeded to file multiple habeas petitions in the 15 state courts with varying periods of time passing between the 16 successive denials and renewed filings of petitions. 17 25.) 18 Appeal had, with respect to claims I and III, issued an order to 19 show cause and returned the case to the Tuolumne County Superior 20 Court, where the Respondent had filed a return and Petitioner a 21 denial or traverse. 22 state court remedies is well under way. 23 (Id. at 24- At the time the petition was filed here, the Court of (Id. at 25:14-28.) Thus, exhaustion of It further appears that in view of the state appellate 24 court’s issuance of the order to show cause, the unexhausted 25 claims are not plainly meritless. 26 27 28 Therefore, the Court will grant a stay of the proceedings so Petitioner can complete exhaustion of the two additional claims. However, the Court will not indefinitely hold the petition 5 1 in abeyance. 2 diligently to pursue his state court remedies and must file a 3 status report every ninety (90) days advising the Court of the 4 status of the state court proceedings. 5 the state courts, Petitioner will be allowed thirty (30) days to 6 notify the court of completion of exhaustion. 7 with these instructions and time allowances will result in this 8 Court’s vacating the stay nunc pro tunc to the date of this 9 order. Rhines, 544 U.S. at 277. Petitioner must proceed Following final action by Failure to comply Rhines, 544 U.S. at 278. 10 III. 11 Accordingly, it is ORDERED that: 12 1. 13 Petitioner's motion to stay the petition and hold the exhausted claims in abeyance is GRANTED; 14 15 Disposition 2. The instant petition is STAYED pending exhaustion of Petitioner's state remedies; 16 3. Petitioner is DIRECTED to file a status report within 17 ninety (90) days of the date of service of this order advising 18 the Court of the cases that have been filed in state court, the 19 date the cases were filed, and any outcomes; 20 21 4. Petitioner is DIRECTED to file a new status report every ninety (90) days therafter; and 22 5. Petitioner is GRANTED thirty (30) days time following 23 the final order of the state courts in which to file a final 24 status report. 25 IT IS SO ORDERED. 26 Dated: icido3 October 20, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 27 28 6