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Turner v. Gore ( 2021 )


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  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR., Case No.: 20cv961-CAB-MSB 12 Petitioner, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION FOR ORDER FINDING MIXED PETITION AND 14 WILLIAM D. GORE, et al., ISSUING OPTIONS ORDER [Doc. 15 Respondent. No. 10] 16 17 On May 22, 2020, Petitioner David Bryan Turner, Jr. (“Petitioner”), a state 18 prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas 19 Corpus pursuant to 28 U.S.C. § 2254, [Doc. No. 1.] On July 24, 2020, Respondent filed 20 an answer to the petition and lodged the state court record. [Doc. Nos. 7, 8.] On July 24, 21 2020, Petitioner filed a traverse. [Doc. No. 9.] 22 On November 27, 2020, Magistrate Judge Michael S. Berg issued a Report and 23 Recommendation (“Report”), recommending that the Court find that the Petition contains 24 exhausted and unexhausted claims and advising Petitioner of the options available to him 25 with regard to a mixed petition. [Doc. No. 10.] The Report also ordered that any 26 objections were to be filed by December 28, 2020. [Report at 11.] To date, no objection 27 has been filed, nor has there been a request for additional time in which to file an 28 objection. 1 A district court’s duties concerning a magistrate judge’s report and 2 recommendation and a respondent’s objections thereto are set forth in Rule 72(b) of the 3 Federal rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 4 filed, the district court is not required to review the magistrate judge’s report and 5 recommendation. The Court reviews de novo those portions of the Report and 6 Recommendation to which objections are made. 28 U.S.C. § 636(b)(1). The Court may 7 “accept, reject, or modify, in whole or in part, the findings or recommendations made by 8 the magistrate judge.” Id. However, “[t]he statute makes it clear that the district judge 9 must review the magistrate judge's findings and recommendations de novo if objection is 10 made, but not otherwise.” United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 11 Cir.2003) (en banc) (emphasis in original). “Neither the Constitution nor the statute 12 requires a district judge to review, de novo, findings and recommendations that the 13 parties themselves accept as correct.” Id. 14 Here, neither party has timely filed objections to the Report. Having reviewed it, 15 the Court finds that it is thorough, well-reasoned, and contains no clear error. 16 Accordingly, the Court HEREBY ADOPTS Magistrate Judge Berg’s Report and 17 Recommendation [Doc. No. 10] in its entirety. For the reasons stated in the Report, 18 which is incorporated herein by reference, the Court HEREBY ORDERS as follows: 19 A. The petition contains exhausted and unexhausted claims. 20 B. Petitioner is HEREBY ADVISED that his petition will be dismissed unless 21 Petitioner chooses one of the following options: 22 1. First option: demonstrate exhaustion. 23 Petitioner may file additional documents with this Court to demonstrate 24 that he has in fact exhausted all claims contained in the Petition, 25 including Claim 3 and Claim 4, as well as the ineffective assistance of 26 trial counsel sub-claim Petitioner is purporting to assert in Claim 2. 27 28 1 2. Second option: voluntarily dismiss the Petition. 2 Petitioner may move to voluntarily dismiss the Petition and return to 3 state court to exhaust his unexhausted claims. Petitioner may then file a 4 new federal petition containing only exhausted claims. See Rose v. 5 Lundy, 455 U.S. 509, 510, 520-21 (1982)(stating that a petitioner who 6 filed a mixed petition may dismiss his petition to “return[] to state court 7 to exhaust his claims[.]”). Petitioner is cautioned that any new federal 8 petition must be filed before expiration of the one-year statute of 9 limitations. Ordinarily, a petitioner has one year from when his 10 conviction became final to file his federal petition, unless he can show 11 that statutory or equitable “tolling” applies. See Duncan v. Walker, 533 12 U.S. 167, 176 (2001); 28 U.S.C. § 2244(d). Absent some basis for tolling, 13 the statute of limitations continues to run while a federal habeas petition 14 is pending. See Duncan, 533 U.S. at 181-82; 28 U.S.C. § 2244(d); see 15 also Frye v. Hickman, 273 F.3d 1144, 1145-46 (9th Cir. 2001). 16 3. Third option: formally abandon unexhausted claims. 17 Petitioner may formally abandon his unexhausted claims and proceed 18 with his exhausted claim(s). See Rose, 455 U.S. at 510 (stating that a 19 petitioner who files a mixed petition may “resubmit[ ] the habeas petition 20 to present only exhausted claims to the district court.”). Petitioner is 21 cautioned that once he abandons his unexhausted claims, he may lose the 22 ability to ever raise them in federal court. 23 4. Fourth option: file a motion to stay the federal proceedings. 24 Petitioner may move to stay this federal proceeding while he returns to 25 state court to exhaust his unexhausted claims. See Jackson v. Roe, 425 26 F.3d 654, 659-60 (9th Cir. 2005); Valerio v. Crawford, 306 F.3d 742, 27 770-71 (9th Cir. 2002) (en banc). The two methods to stay the case are 28 the “stay and abeyance” and “withdrawal and abeyance” procedures. 1 Under the “stay and abeyance” procedure, a district court has discretion 2 to stay a “mixed” federal habeas petition, while the petitioner returns to 3 state court to exhaust the unexhausted claims without losing his right to 4 federal habeas review due to the relevant one-year statute of limitations. 5 Rhines, 544 U.S. at 273-78. Once the petitioner exhausts the state court 6 remedies for all of his claims, the district court lifts the stay and allows 7 the petitioner to proceed in federal court on all claims. See id. at 277. The 8 “stay and abeyance” procedure is available only in “limited 9 circumstances” when thefollowing three conditions are met: (1) the 10 petitioner demonstrates “good cause” for failing to first exhaust his 11 claims in state court; (2) the unexhausted claims potentially have merit; 12 and (3) there is no indication that petitioner intentionally engaged in 13 dilatory litigation tactics. Id. at 277-78; see also Mitchell v. Valenzuela, 14 791 F.3d 1166, 1171 (9th Cir. 2015) (same). The procedure allows 15 petitioner’s “mixed” petition to remain in federal court during the 16 pendency of the state courts’ collateral review of the petitioner’s claims. 17 See Rhines, 544 U.S. at 277. 18 Alternatively, a “mixed” federal petition may be stayed pursuant to 19 “withdrawal and abeyance” procedure outlined in Kelly v. Small, 315 20 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on other grounds by 21 Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). A Kelly abeyance 22 requires compliance with the following three-step procedure: (1) 23 petitioner files an amended petition deleting his unexhausted claims; (2) 24 the district court “stays and holds in abeyance the amended, fully 25 exhausted petition, allowing petitioner the opportunity to proceed to state 26 court to exhaust the deleted claims”; and (3) petitioner subsequently 27 seeks to amend the federal habeas petition to reattach “the newly- 28 exhausted claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1 1135 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). The petitioner is 2 allowed to amend his newly-exhausted claims back into his federal 3 petition only if the claims are timely under the AEDPA or “relate back” 4 to the exhausted claims in the pending federal petition. 7d. at 1140-41, 5 see also Mayle v. Felix, 545 U.S. 644, 662-64 (2005). A new claim 6 relates back to an existing claim if the two claims share a “common core 7 of operative facts.” Mayle, 545 U.S. at 664. Petitioner is advised that a 8 stay under Kelly does not toll AEDPA’s limitations period with respect 9 to unexhausted claims. King, 564 F.3d at 1140-42. 10 C. Petitioner is HEREBY NOTIFIED that if Petitioner does not inform the Court 11 by February 19, 2021 of how Petitioner intends to proceed, then the petition 12 will be dismissed without prejudice. 13 || IT ISSO ORDERED. 14 ||Dated: January 22, 2021 (GR 15 Hon. Cathy Ann Bencivengo 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 3:20-cv-00961

Filed Date: 1/22/2021

Precedential Status: Precedential

Modified Date: 6/20/2024