Torres v. Diaz ( 2021 )

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 EDUARDO TORRES, Case No.: 19-cv-01964-LAB-JLB 13 Petitioner, ORDER DENYING PETITIONER’S 14 v. MISCELLANEOUS MOTIONS 15 RALPH DIAZ, et al., 16 Respondents. [ECF Nos. 60; 63; 64; 65; 67; 69; 71; 17 74; 80; 92] 18 19 20 I. INTRODUCTION 21 Petitioner Eduardo Torres (“Petitioner”) is a state prisoner proceeding pro se and in 22 forma pauperis on a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. 23 (ECF Nos. 1; 9.) Presently before the Court are multiple miscellaneous motions filed by 24 Petitioner, including: (1) a Motion for Extension of Time and Appointment of Counsel 25 (ECF No. 60); (2) Motions for Extension of Time to File (ECF Nos. 63; 64; 65); 26 (3) Motions to Extend Time and Appoint Counsel (ECF No. 67; 69); (4) a Motion for 27 Extension of Time, Request for Incompetence Hearing, and a Request for Appointment of 28 Counsel (ECF No. 71); (5) a Motion for Extension of time, Request for Incompetence 1 Hearing, and a Request for Appointment of Counsel (ECF No. 74); (6) a Motion for 2 Extension of Time to File (ECF No. 80); and (8) a Motion to Petition (ECF No. 92).1 3 II. PROCEDURAL BACKGROUND 4 On September 20, 2019, Petitioner constructively filed a Petition for Writ of Habeas 5 Corpus (“Original Petition”) pursuant to 28 U.S.C. § 2254 challenging the conviction and 6 sentence imposed on him by the San Diego Superior Court in case number SCD267474. 7 (ECF No. 1 at 1.) On January 10, 2020, Respondents moved to dismiss the Original 8 Petition as time-barred under 28 U.S.C. § 2244(d). (ECF No. 14.) 9 On February 21, 2020, Petitioner filed an Amended Petition for Writ of Habeas 10 Corpus (“Amended Petition”) containing an additional, unexhausted claim. (ECF No. 21 11 at 17.) In light of the Amended Petition, the Honorable Larry Alan Burns denied 12 Respondents’ Motion to Dismiss (ECF No. 14) as moot on March 3, 2020. (ECF No. 22.) 13 On March 20, 2020, Respondents moved to dismiss the Amended Petition on the 14 grounds that the Original Petition was time-barred under 28 U.S.C. § 2244(d) and the 15 Amended Petition contained an unexhausted claim. (ECF No. 31.) Petitioner filed an 16 opposition on May 24, 2020. (ECF No. 41 at 3.) 17 On April 30, 2020, Petitioner filed a Motion for Stay and Abeyance requesting that 18 the Court stay the case and hold his exhausted claims in abeyance pending the exhaustion 19 of his unexhausted claim. (ECF Nos. 35; 35-1 at 1.) Respondents filed an opposition on 20 June 17, 2020. (ECF No. 42.) Petitioner filed a reply on July 5, 2020. (ECF No. 45 at 5.) 21 Petitioner filed a second request for stay and abeyance on November 30, 2020. (ECF No. 22 49.) 23 /// 24 25 26 27 1 Two of Petitioner’s motions (ECF Nos. 71; 74) also contain requests that have been ruled on by the district judge, including requests for equitable tolling and requests to add 28 1 On June 16, 2020, Petitioner moved for leave to amend the Amended Petition and 2 add an additional, unexhausted claim of “actual innocence.” (ECF No. 44 at 3.) 3 Respondents did not file a response to Petitioner’s Motion for Leave to Amend. 4 On December 31, 2020, this Court issued a Report and Recommendation (ECF No. 5 50) that was adopted in part by Judge Burns. (ECF No. 52.) Judge Burns denied 6 Respondents’ Motion to Dismiss the Amended Petition (ECF No. 31), denied Petitioner’s 7 Motion for Leave to Amend (ECF No. 44), granted Petitioner’s first motion for stay and 8 abeyance (ECF No. 35), and denied as moot Petitioner’s second motion for stay and 9 abeyance. (ECF No. 52.) 10 On May 10, 2021, Petitioner timely filed a motion to reconsider the Court’s adoption 11 of the Report and Recommendation. (See ECF Nos. 62; 95.) On October 5, 2021, Judge 12 Burns denied Petitioner’s Motion for Reconsideration for lacking any substantive objection 13 to the Court’s adoption of the Report and Recommendation. (ECF No. 95 at 2.) 14 III. DISCUSSION 15 A. Requests for Appointment of Counsel, Copies of Documents, 16 Competency Hearings 17 To the extent Petitioner’s present motions contain requests for appointment of 18 counsel, for copies of documents, and competency hearings (ECF Nos. 60; 67; 69; 71; 74), 19 the Court already denied these requests without prejudice in its August 20, 2021 Order. 20 (See ECF No. 79 n.1.) 21 B. Requests for Extensions of Time 22 Petitioner’s motions for extension of time appear to request an extension of time to 23 file a motion for reconsideration of the Court’s Order adopting in part the Report and 24 Recommendation. (ECF Nos. 63 at 1; 64 at 1; 67 at 1; 69 at 1; 71 at 1–2, 3; 74 at 1, 3; 80 25 at 1.) Petitioner also seeks non-specific extensions of time to file future pleadings or 26 continue unspecified “due dates.” 27 On May 10, 2021, Petitioner timely filed his motion for reconsideration. (ECF No. 28 62.) Judge Burns denied Petitioner’s motion for reconsideration on October 5, 2021. (ECF 1 No. 95.) Because Petitioner’s motion for reconsideration has already been filed and is no 2 longer pending, no motions for extension of time regarding this matter are necessary. 3 Accordingly, Petitioner’s requests for extensions of time to file a motion to reconsider 4 (ECF Nos. 63; 64; 67; 69; 71; 74; 80) are DENIED AS MOOT. 5 To the extent Petitioner requests non-specific extensions of time or to continue 6 unspecified “due dates,” these requests are DENIED WITHOUT PREJUDICE due to 7 this case remaining stayed pending exhaustion in state court of Petitioner’s eighth claim in 8 his Amended Petition. 9 Petitioner also requests a 90-day extension of time to file his habeas corpus petition 10 in state court. (ECF No. 65.) To the extent Petitioner is requesting an extension of any 11 state court deadlines, this Court does not have authority to grant any such extensions. To 12 the extent Petitioner is requesting that this Court extend one of its own deadlines, this Court 13 has not set a deadline by which Petitioner must file his habeas petition in state court. 14 However, Petitioner is reminded that he must not unreasonably delay his efforts to exhaust 15 his ineffective assistance of counsel claim in state court and should avoid “abusive 16 litigation tactics or intentional delay” in filing his state habeas corpus petition. See Rhines 17 v. Weber, 544 U.S. 269, 278 (2005). Accordingly, Petitioner’s request is DENIED. 18 C. Renewed Request for Appointment of Counsel in Petitioner’s “Motion to 19 Petition” 20 On September 24, 2021, Petitioner filed a “Motion to Petition, Petition Petition of 21 Habeas Corpus.” (ECF No. 92.) Petitioner asks the Court “for representation to petition 22 [his] petition.” (Id. at 1.) Although it is less than clear what relief Petitioner is seeking, 23 the Court liberally construes this motion as a renewed request for appointment of counsel.2 24 As the Court has explained to Petitioner numerous times before (ECF Nos. 20 at 2; 50 at 25 1; 79 at 2), there is no absolute right to counsel in 28 U.S.C. § 2254 actions. McCleskly v. 26 27 2 The Court liberally construes pro se pleadings. See Balistreri v. Pacifica Police 28 1 || Zant, 499 U.S. 467, 495 (1991). Appointment of counsel in federal habeas proceedings is 2 to the discretion of the court when “the interests of justice so require,” 18 U.S.C. § 3 3006A(a)(2)(B); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Appointment is 4 ||appropriate only upon a showing of exceptional circumstances. (/d.) The Court most 5 ||recently denied Petitioner’s requests for counsel on August 20, 2021 (ECF No. 79), and 6 || Petitioner’s circumstances have not changed since then such that appointment of counsel 7 || would be warranted now. 8 Moreover, because this case remains stayed pending the exhaustion of Petitioner’s 9 ||eighth claim in his Amended Petition, the interests of justice would not be served by 10 appointing counsel for Petitioner at this time. For the foregoing reasons, Petitioner’s 11 ||renewed request for appointment of counsel (ECF No. 92) is DENIED WITHOUT 12 || PREJUDICE. 13 IV. CONCLUSION 14 For the reasons set forth above, Petitioner’s miscellaneous motions (ECF Nos. 60; 15 64; 65; 67; 69; 71; 74; 80; 92) are DENIED. 16 IT IS SO ORDERED. 17 || Dated: October 13, 2021 . i his Bandon Hon), Jill L. Burkhardt 19 ed States Magistrate Judge 20 21 22 23 24 25 26 27 28