(HC) Coles v. Sisto, No. 2:2008cv02134 - Document 20 (E.D. Cal. 2009)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/24/09 ORDERING that petitioners 16 motion for appointment of counsel is DENIED; and petitioners 17 motion for a stay and abeyance is disregarded as duplicative a nd moot; RECOMMENDING that petitioners 19 Motion for Stay and Abeyance be granted; Petitioner be ordered to present all unexhausted claims to the California Supreme Court in a further state habeas corpus petition to be filed within 30 days; This ac tion be stayed and the Clerk of the Court be directed to administratively close the case; Petitioner be ordered to file and serve a status report in this case on the first court day of each month; and Petitioner be ordered to file and serve a motion to lift the stay of this action, along with a proposed amended petition containing only exhausted claims, within 30 days after petitioner is served with the California Supreme Courts order disposing of the state exhaustion petition. Referred to Judge Lawrence K. Karlton; Objections to F&R due within 20 days.(Dillon, M)
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(HC) Coles v. Sisto Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GEORGE EDWARD COLES, 11 12 13 Petitioner, No. CIV S-08-2134 LKK DAD P vs. D.K. SISTO, Warden, 14 ORDER AND Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2007 judgment 18 of conviction entered in the Sacramento County Superior Court. Pending before the court is 19 petitioner’s motion for a stay and abeyance.1 20 PROCEDURAL HISTORY 21 22 On September 11, 2008, petitioner commenced this action by filing a petition for writ of habeas corpus raising the following three claims: 23 1 24 25 26 Petitioner has filed two identical motions for a stay and abeyance. Petitioner filed his first motion in response to findings and recommendations issued by the court. He filed his second motion in response the assigned district judge’s order adopting those findings and recommendations. Under the circumstances of this case, the court will disregard petitioner’s earlier-filed motion as duplicative and moot and proceed on petitioner’s motion filed July 20, 2009. 1 Dockets.Justia.com 1 Ground one: Petitioner was denied his Sixth Amendment right of confrontation, due process of law, and a fair trial by the introduction of prejudicial hearsay testimony. 2 3 Ground two: Petitioner contends his guaranteed right under the Sixth Amendment to the United States Constitution was severely abridged . . . [and that he was denied effective assistance of counsel during sentencing]. 4 5 Ground three: Petitioner contends the punishment imposed violates the Eighth Amendment’s proscription against cruel and unusual punishment under the United States Constitution. 6 7 8 9 (Pet. at 5-6.) On November 13, 2008, the court ordered respondent to file a response to the 10 petition. Respondent filed a motion to dismiss, arguing that petitioner failed to exhaust the 11 second and third claims in his federal petition. Petitioner filed an opposition to the motion, 12 arguing that he had exhausted state court remedies. Specifically, petitioner explained that the 13 State of California filed an information against him and his co-defendant Roosevelt Leon Cathey 14 and that their trial court and direct appeal case numbers were the same. On direct appeal, Mr. 15 Cathey argued to the California Supreme Court that he had received ineffective assistance of 16 counsel and that his right to be free from cruel and unusual punishment under the Eighth 17 Amendment had been violated. Petitioner argued that he should not have to re-exhaust these 18 claims. In the alternative, petitioner argued that if the court found that he still needed to exhaust 19 the second and third claims set forth in his federal petition, the court should construe his petition 20 as a “mixed” petition and grant him a stay and abeyance. 21 On April 23, 2009, the undersigned issued findings and recommendations on 22 respondent’s motion to dismiss, finding that petitioner had failed to exhaust the second and third 23 claims presented in his federal petition. Although petitioner’s co-defendant may have raised 24 claims on direct appeal that were similar to the second and third claims of petitioner’s federal 25 petition, petitioner’s co-defendant’s fair presentation of these claims had no bearing on 26 petitioner’s need to satisfy the exhaustion requirement. However, the undersigned determined 2 1 that respondent’s motion to dismiss should nonetheless not be granted. Instead, the undersigned 2 recommended that petitioner be given an opportunity to seek a stay and abeyance to allow him to 3 return to state court to exhaust his unexhausted claims. 4 On June 30, 2009, the assigned district judge in this case adopted the findings and 5 recommendations and ordered petitioner to file a motion for a stay abeyance. Petitioner has since 6 filed a motion for a stay and abeyance. Respondent has not filed an opposition or otherwise 7 responded to the motion. 8 PETITIONER’S MOTION FOR A STAY AND ABEYANCE 9 In his motion, petitioner explains that he mistakenly filed a “mixed” petition in 10 this court. As described above, he believed that his co-defendant’s fair presentation of the 11 second and third claims in his federal petition would be sufficient to satisfy the exhaustion 12 requirement in his case. Petitioner accurately notes that he will be unable to proceed in this 13 action on his second and third claims until he exhausts state court remedies, so he requests a stay 14 and abeyance. 15 16 DISCUSSION The United States Supreme Court has affirmed the district court’s discretion to 17 stay a federal habeas proceeding to allow a petitioner to present unexhausted claims to the state 18 court where there is good cause for the petitioner’s failure to exhaust all claims in state court 19 before filing a federal habeas petition. See Rhines v. Weber, 544 U.S. 269 (2005). See also 20 King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (analyzing the two procedures available to habeas 21 petitioners who wish to proceed with exhausted and unexhausted claims for relief); Anthony v. 22 Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay fully exhausted 23 federal petitions pending exhaustion of other claims); Calderon v. United States Dist.Court 24 (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998). This discretion to issue a stay extends to 25 “mixed” petitions. Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded that a 26 district court has discretion to stay a mixed petition to allow a petitioner time to return to state 3 1 court to present unexhausted claims.”). The Supreme Court cautioned, however, that “stay and 2 abeyance should be available only in limited circumstances” and that a stay “is only appropriate 3 when the district court determines there is good cause for the petitioner’s failure to exhaust his 4 claims first in state court.” Rhines, 544 U.S. at 277. Even if a petitioner shows good cause, the 5 district court should not grant a stay if the unexhausted claims are plainly meritless. Id. Finally, 6 federal proceedings may not be stayed indefinitely, and reasonable time limits must be imposed 7 on a petitioner’s return to state court to exhaust additional claims. Id. at 277-78. 8 9 In this case, petitioner cannot present the second and third claims in his federal petition or any other new claims to this court until those claims have been fairly presented to the 10 California Supreme Court. It does not appear that the pro se petitioner seeks to stay these 11 proceedings for an improper purpose. Nor does it appear that petitioner has engaged in abusive 12 litigation tactics or intentional delay. Moreover, if petitioner obtains relief in state court, his 13 federal petition may be rendered moot, thereby serving the interests of judicial economy as well 14 as the interests of justice. Accordingly, good cause appearing, petitioner’s motion for a stay and 15 abeyance should be granted. 16 OTHER MATTERS 17 Also pending before the court is petitioner’s motion for appointment of counsel. 18 Petitioner is advised that there currently exists no absolute right to appointment of counsel in 19 habeas proceedings. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 20 U.S.C. § 3006A authorizes the appointment of counsel at any stage of the case “if the interests of 21 justice so require.” See Rule 8(c), Fed. R. Governing § 2254 Cases. In the present case, the 22 court does not find that the interests of justice would be served by the appointment of counsel at 23 the present time. 24 ///// 25 ///// 26 ///// 4 1 CONCLUSION 2 IT IS HEREBY ORDERED that: 3 1. Petitioner’s May 7, 2009 motion for appointment of counsel (Doc. No. 16) is 4 denied; and 5 6 2. Petitioner’s May 12, 2009 motion for a stay and abeyance (Doc. No. 17) is disregarded as duplicative and moot. 7 IT IS HEREBY RECOMMENDED that: 8 1. Petitioner’s July 20, 2009 motion for a stay and abeyance (Doc. No. 19) be 9 granted; 10 11 2. Petitioner be ordered to present all unexhausted claims to the California Supreme Court in a further state habeas corpus petition to be filed within thirty days; 12 13 3. This action be stayed and the Clerk of the Court be directed to administratively close the case; 14 15 4. Petitioner be ordered to file and serve a status report in this case on the first court day of each month; and 16 5. Petitioner be ordered to file and serve a motion to lift the stay of this action, 17 along with a proposed amended petition containing only exhausted claims, within thirty days 18 after petitioner is served with the California Supreme Court’s order disposing of the state 19 exhaustion petition. 20 These findings and recommendations are submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 22 days after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served and filed within ten days after service of the objections. The parties are advised 26 ///// 5 1 that failure to file objections within the specified time may waive the right to appeal the District 2 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: August 24, 2009. 4 5 6 7 DAD:9 cole2134.sty 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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