Opinion
No. CV-18-02628-PHX-SRB (BSB)
11-14-2018
Ammed Hassan, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
On August 20, 2018, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.§ 2254. (Doc. 1.) On October 25, 2018, he filed a motion to stay this proceeding while he seeks a writ of certiorari in the United States Supreme Court. (Doc. 9.) Thus, Petitioner may believe that he is required to present his claims to the United States Supreme Court before seeking habeas corpus review in this Court. As set forth below, Petitioner is not required to present his claim to the Supreme Court and he has not established any basis to stay this proceeding. Therefore, the Court recommends that the motion to stay be denied.
I. Exhaustion of State Remedies
Before the federal court may grant habeas corpus relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To exhaust state remedies, a petitioner must afford the state courts the opportunity to rule upon the merits of his federal claims by "fairly presenting" them to the state's "highest" court in a procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) ("[t]o provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court . . . thereby alerting that court to the federal nature of the claim"); Castille v. Peoples, 489 U.S. 346, 349 (1989) (same). In Arizona, unless a prisoner has been sentenced to death, the "highest court" requirement is satisfied if the petitioner has presented his federal claim to the Arizona Court of Appeals either through the direct appeal process or post-conviction proceedings. Castillo v. McFadden, 399 F.3d 993, 998 (9th Cir. 2005).
II. Stay and Abeyance Procedure
Under Rhines v. Weber, 544 U.S. 269, 277 (2005), a district court has limited discretion to hold in abeyance a habeas petition containing both exhausted and unexhausted claims (a mixed petition) to allow a petitioner to exhaust his claims while the federal proceedings are stayed. Rhines, 544 U.S. at 277. A district court also has the discretion to stay and hold in abeyance a fully unexhausted petition. Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016).
"Staying a federal habeas petition frustrates AEDPA's [Anti-Terrorism and Effective Death Penalty Act] objective of encouraging finality by allowing a petitioner to delay the resolution of federal proceedings." Rhines, 544 U.S. at 277. "Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when" (1) there is good cause for petitioner's failure to exhaust his claims first in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner has engaged in intentionally dilatory litigation tactics. Id. at 277-278.
Petitioner requests a stay to seek review of "one 14th Amendment question of law that has gone unanswered" in the United States Supreme Court. (Doc. 9 at 1.) Petitioner is referring to the Fourteenth Amendment claim that he raises in Ground One. (Doc. 1 at 6, Doc. 11.) In Ground One, Petitioner asserts that his "right to gather evidence under police authority" was violated. (Doc. 1 at 6; Doc. 11 at 2.) Petitioner is not required to present his claims to the Supreme Court to satisfy the exhaustion requirement. Additionally, assuming Petitioner failed to exhaust Ground One in state court, he has not shown good cause for his failure to exhaust that claim or shown that it is potentially meritorious. See Rhines, 544 U.S. at 277-278. Therefore, Petitioner has not satisfied the criteria for staying this § 2254 proceeding.
Accordingly,
IT IS RECOMMENDED that Petitioner's motion to stay (Doc. 9) be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
Dated this 14th day of November, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge