Anderson v. Cueva ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAVID LEE ANDERSON, Case No. 20-cv-06806-PJH 8 Petitioner, ORDER GRANTING MOTION TO 9 v. STAY AND ADMINISTRATIVELY CLOSING CASE 10 DANIEL CUEVA, Respondent. 11 12 13 Petitioner, a state prisoner, filed a pro se writ of habeas corpus pursuant to 28 14 U.S.C. § 2254. Petitioner was convicted in Alameda County which is in this district, so 15 venue is proper here. See 28 U.S.C. § 2241(d). Petitioner also seeks a stay to exhaust 16 further claims. 17 BACKGROUND 18 Petitioner was convicted on August 19, 2016, for mayhem, assault with a firearm, 19 second degree robbery and assault with means likely to produce great bodily injury. 20 Petition at 1. He was sentenced to 46 years in state prison. Id. His direct appeals were 21 denied. Petition at 2. 22 DISCUSSION 23 STANDARD OF REVIEW 24 This court may entertain a petition for writ of habeas corpus “in behalf of a person 25 in custody pursuant to the judgment of a State court only on the ground that he is in 26 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 27 § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas corpus petitions must meet 1 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 2 pursuant to a judgment of a state court must “specify all the grounds for relief available to 3 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 5 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 6 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 7 1970)). 8 LEGAL CLAIMS 9 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court 10 improperly denied his request to discharge retained counsel; and (2) the trial court 11 imposed an improper sentence. Docket No. 3 at 12-13. 12 Petitioner also seeks a stay to exhaust further claims regarding ineffective 13 assistance of counsel. In Rhines v. Weber, 544 U.S. 269 (2005), the United States 14 Supreme Court found that a stay and abeyance of a mixed federal petition should be 15 available only in the limited circumstance that good cause is shown for a failure to have 16 first exhausted the claims in state court, that the claim or claims at issue potentially have 17 merit and that there has been no indication that petitioner has been intentionally dilatory 18 in pursuing the litigation. Id. at 277-78. Liberally construing the motion, petitioner has 19 shown good cause for his failure to exhaust the claims before filing this action, the claims 20 do not appear patently meritless, and there do not appear to be any intentionally dilatory 21 litigation tactics by petitioner. 22 This case will be stayed for petitioner to exhaust the remaining claims. Petitioner 23 is informed that before he may challenge either the fact or length of his confinement in a 24 habeas petition in this court, he must present to the California Supreme Court any claims 25 he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding 26 every claim raised in federal habeas petition must be exhausted). 27 1 CONCLUSION 2 1. The motion to proceed in forma pauperis (Docket No. 2) is GRANTED. 3 Petitioner’s motion for a stay (Docket No. 3) is GRANTED and this case is STAYED to 4 allow petitioner to present his unexhausted claims in state court. If petitioner is not 5 granted relief in state court, he may return to this court and ask that the stay be lifted. 6 2. The stay is subject to the following conditions: 7 (1) Petitioner must diligently pursue his state court habeas proceedings; and 8 (2) Petitioner must notify this court within thirty days after the state courts have 9 completed their review of his claim or after they have refused review of his claims. 10 If either condition of the stay is not satisfied, this court may vacate the stay and act 11 on this petition. See Rhines, 544 U.S. at 278 (district court must effectuate timeliness 12 concerns of AEDPA by placing “reasonable limits on a petitioner’s trip to state court and 13 back.”). 14 The Clerk shall administratively close this case. The closure has no legal effect; it 15 is purely a statistical matter. The case will be reopened and the stay vacated upon 16 notification by petitioner in accordance with section (2) above. 17 3. Petitioner must keep the court informed of any change of address and must 18 comply with the court's orders in a timely fashion. Failure to do so may result in the 19 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 20 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 21 41(b) applicable in habeas cases). 22 IT IS SO ORDERED. 23 Dated: October 27, 2020 24 25 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 26 United States District Judge 27