(DP) Brown v. Davis ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN ALLEN BROWN, Case No. 1:19-cv-01796-ADA 12 Petitioner, DEATH PENALTY CASE 13 v. SCHEDULING ORDER 14 RON BROOMFIELD, Warden of California State Prison at San Quentin, 15 Respondent.1 16 17 18 On November 2, 2022, counsel for Petitioner, John Mills, and counsel for Respondent, 19 Deputy Attorney General Charity Whitney, filed their joint case management statement 20 pursuant to the Court’s order of October 13, 2022. Therein, counsel state their respective 21 positions on the exhaustion status of the habeas corpus petition filed in this proceeding on 22 September 30, 2022, as well as post-petition case management and scheduling. 23 The Court, having reviewed the joint statement, and the record, finds good cause to 24 provide further scheduling, as discussed below. 25 Counsel first address the exhaustion status of the federal petition. Counsel appear to 26 1 Ron Broomfield, appointed as warden of San Quentin State Prison in September 2021, is 27 substituted as Respondent in place of his predecessor wardens. Fed. R. Civ. P. 25(d). 1 agree that claims 13, 14a, 14b, 14c, and 14g are fully exhausted, and that claims 1, 2, 3, 4, 5a, 2 5b, 5c 5d, 5e, 5f, 6, 7, 8, 9, 10, 11, 12, 14d, 14e, and 14h are not fully exhausted. Counsel 3 disagree on the exhaustion status of claim 14f. Petitioner states claim 14f is fully exhausted. 4 Respondent states claim 14f is unexhausted or partially exhausted. 5 Counsel do not seek, and the Court will not now provide a determination of claim 6 exhaustion status, or related scheduling. Cf. Lucas v. Davis, No. 15CV1224-GPC (WVG), 7 2017 WL 1807907, at *10–11 (S.D. Cal. May 5, 2017) (petitioner is not dilatory under Rhines 8 in waiting for the federal court to rule on exhaustion before filing a petition in state court); 9 Leonard v. Davis, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 1772390, at *5 (E.D. Cal. Apr. 10 23, 2019), report and recommendation adopted, 2019 WL 2162980 (E.D. Cal. May 17, 2019) 11 (same). 12 Counsel next address whether a case management conference is necessary. Counsel, at 13 this time, do not request such a conference. The Court will not now set a case management 14 conference. 15 Finally, counsel address post-petition scheduling. Counsel stipulate to a proposed 16 schedule for petitioner to seek stay and abeyance of this proceeding pursuant to Rhines v. 17 Weber, 544 U.S. 269 (2005), to allow for claim exhaustion in state court. The Court finds 18 good cause to provide further scheduling that includes counsel’s agreed upon timelines. 19 Accordingly, 20 1. Petitioner shall file a motion to stay this proceeding pursuant to Rhines v. 21 Weber, by not later than December 12, 2022. Respondent shall file a response 22 to that motion within 60 days of the filing of the motion. Petitioner shall file 23 any reply to respondent’s response within 30 days of filing of the response. The 24 matter will then be deemed submitted and the parties will be notified by minute 25 order if a hearing is necessary. 26 2. If the Court grants stay and abeyance of this proceeding pursuant to Rhines v. 27 Weber, then Petitioner shall file an exhaustion petition in the California 1 unless the Court orders otherwise. 2 3. If petitioner does not file a motion for stay and abeyance pursuant to Rhines v. 3 Weber by the December 12, 2022 deadline, or if that motion is denied, then the 4 Court will set a case management conference and/or provide further case 5 scheduling. 6 7 g | IT IS SO ORDERED. 9 Dated: _ November 9, 2022 10 UNITED f$TATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28