(HC) Fletcher v. Walker, No. 2:2009cv01091 - Document 21 (E.D. Cal. 2009)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 8/24/09 ORDERING the clerk to randomly assign a US District Judge to this action; and RECOMMENDING that petitioner's 9 motion for stay and abeyance be granted; petitioner's 10 motion to amend be granted; petitioner be ordered to present all unexhausted claims to the CA Supreme Court w/in 30 days; this action be stayed and the clerk 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 ea month; and petitioner be ordered to file and serve a motion to lift the stay, along w/ a proposed second amended petition, w/in 30 days after petitioner is served the CA Supreme Court's order disposing of the state exhaustion petition. Assigned and Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 20 days. (Yin, K)
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(HC) Fletcher v. Walker Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY FLETCHER, 11 Petitioner, 12 13 No. CIV S-09-1091 DAD P vs. JAMES WALKER, 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 2005 judgment 18 of conviction entered in the Sacramento County Superior Court. Pending before the court are 19 petitioner’s motion to amend and motion for a stay and abeyance. 20 PROCEDURAL HISTORY 21 On April 21, 2009, petitioner commenced this action by filing a petition for writ 22 of habeas corpus. On April 30, 2009, the court ordered respondent to file a response to the 23 petition. On June 24, 2009, petitioner filed a motion for a stay and abeyance and a motion to 24 amend, together with a proposed amended petition. On June 26, 2009, respondent filed an 25 answer to the petition, and on July 15, 2009, respondent filed an opposition to petitioner’s 26 ///// 1 Dockets.Justia.com 1 motion for a stay and abeyance and motion to amend. On August 7, 2009, petitioner filed a reply 2 in support of his motions. 3 THE PARTIES’ ARGUMENTS 4 Petitioner argues that the court should grant him leave to amend his petition to 5 add a new claim for ineffective assistance of counsel based upon the alleged failure of his 6 counsel to object to the prosecution’s introduction of inadmissible testimony at his trial. 7 Petitioner also argues that the court should grant him a stay and abeyance so that he can exhaust 8 his state court remedies with regard to this claim. Petitioner indicates in a declaration signed 9 under penalty of perjury that he is mentally incompetent, ignorant of the law, and has only been 10 able to bring this new claim before the court with the assistance of a jailhouse lawyer. Petitioner 11 maintains that he does not seek to delay these proceedings by filing the instant motions. He also 12 notes that the Sacramento County Superior Court recently denied his petition for writ of habeas 13 corpus containing his new claim and that he subsequently filed a similar petition in the California 14 Court of Appeal, which was pending at the time he filed the instant motions. (Pet’r’s Mot. for 15 Stay & Abey. & Decls., Pet’r’s Mot. to Amend, Pet’r’s Reply.) 16 Respondent opposes petitioner’s motion to amend and motion for a stay abeyance. 17 Specifically, respondent argues that granting petitioner leave to amend would be futile because 18 his ineffective assistance of counsel claim is unexhausted, and the court cannot entertain a 19 “mixed” petition containing both exhausted and unexhausted claims. In addition, respondent 20 contends that it appears that petitioner is attempting to delay these proceedings after respondent 21 has filed his answer to the pending petition. Moreover, respondent argues that petitioner has not 22 shown good cause to stay these proceedings because, for example, he has not explained how he 23 was able to pursue his exhausted claims but not his new ineffective assistance of counsel claim. 24 (Resp’t’s Opp’n to Pet’r’s Mot. for Stay & Abey. & Mot. to Amend.) 25 ///// 26 ///// 2 1 2 DISCUSSION The United States Supreme Court has affirmed the district court’s discretion to 3 stay a federal habeas proceeding to allow a petitioner to present unexhausted claims to the state 4 court where there is good cause for the petitioner’s failure to exhaust all claims in state court 5 before filing a federal habeas petition. See Rhines v. Weber, 544 U.S. 269 (2005). See also 6 King v. Ryan, 564 F.3d 1133 (9th Cir. 2009) (analyzing the two procedures available to habeas 7 petitioners who wish to proceed with exhausted and unexhausted claims for relief); Anthony v. 8 Cambra, 236 F.3d 568, 575 (9th Cir. 2000) (authorizing district courts to stay fully exhausted 9 federal petitions pending exhaustion of other claims); Calderon v. United States Dist.Court 10 (Taylor), 134 F.3d 981, 987-88 (9th Cir. 1998). This discretion to issue a stay extends to 11 “mixed” petitions. Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005) (“Rhines concluded that a 12 district court has discretion to stay a mixed petition to allow a petitioner time to return to state 13 court to present unexhausted claims.”). The Supreme Court cautioned, however, that “stay and 14 abeyance should be available only in limited circumstances” and that a stay “is only appropriate 15 when the district court determines there is good cause for the petitioner’s failure to exhaust his 16 claims first in state court.” Rhines, 544 U.S. at 277. Even if a petitioner shows good cause, the 17 district court should not grant a stay if the unexhausted claims are plainly meritless. Id. Finally, 18 federal proceedings may not be stayed indefinitely, and reasonable time limits must be imposed 19 on a petitioner’s return to state court to exhaust additional claims. Id. at 277-78. 20 In this case, petitioner cannot present the ineffective assistance of counsel claim in 21 his proposed amended petition or any other new claims to this court until those claims have been 22 fairly presented to the California Supreme Court. Contrary to respondent’s argument, it does not 23 appear that the pro se petitioner seeks to stay these proceedings for an improper purpose. Nor 24 does it appear that petitioner has engaged in abusive litigation tactics or intentional delay. 25 Respondent has filed an answer to the original petition in this action. However, as noted above, 26 petitioner filed his motion for a stay and abeyance and motion to amend before respondent filed 3 1 the answer. In addition, according to the California Court of Appeal’s website, it appears that the 2 court denied petitioner’s exhaustion petition (CO62625) on August 20, 2009. Based on 3 petitioner’s diligence in pursuing his new claim, he will presumably file a petition with the 4 California Supreme Court in the near future if he has not done so already. Finally, if petitioner 5 obtains relief in state court, his federal petition may be rendered moot, thereby serving the 6 interests of judicial economy as well as the interests of justice. Accordingly, good cause 7 appearing, petitioner’s motion to amend and motion for a stay and abeyance should be granted. 8 CONCLUSION 9 10 IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign a United States District Judge to this action. 11 IT IS HEREBY RECOMMENDED that: 12 1. Petitioner’s June 24, 2009 motion for a stay and abeyance (Doc. No. 9) be 13 granted; 14 2. Petitioner’s June 24, 2009 motion to amend (Doc. No. 10) be granted; 15 3. Petitioner be ordered to present all unexhausted claims to the California 16 Supreme Court in a further state habeas corpus petition to be filed within thirty days; 17 18 19 20 21 4. This action be stayed and the Clerk of the Court be directed to administratively close the case; 5. Petitioner be ordered to file and serve a status report in this case on the first court day of each month; and 6. Petitioner be ordered to file and serve a motion to lift the stay of this action, 22 along with a proposed second amended petition containing only exhausted claims, within thirty 23 days after petitioner is served with the California Supreme Court’s order disposing of the state 24 exhaustion petition. 25 These findings and recommendations are submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 4 1 days after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 4 shall be served and filed within ten days after service of the objections. The parties are advised 5 that failure to file objections within the specified time may waive the right to appeal the District 6 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 DATED: August 24, 2009. 8 9 10 11 DAD:9 flet1091.sty 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
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