Opinion
NO. CV 03-5465-RGK (CT)
August 28, 2003
MEMORANDUM AND ORDER DENYING MOTION TO STAY AND ABEY FEDERAL HABEAS CORPUS PETITION
SUMMARY OF PROCEEDINGS
On May 9, 2003, petitioner, a prisoner in state custody and represented by counsel, filed a federal petition for writ of habeas corpus ("first petition") in case number CV 03-3273. On June 6, 2003, respondent filed- a motion to dismiss ("motion to dismiss") that argued the petition should be dismissed because it contained two unexhausted grounds and described the stay and abey procedure. On July 17, 2003, a report and recommendation was filed recommending dismissal without prejudice for failure to exhaust state court remedies that also described the stay and abey procedure. On July 24, 2003, petitioner filed a response that argued the two grounds were in fact exhausted and requested that the petition be held in abeyance while petitioner presented the two unexhausted grounds in the California Supreme Court. On July 25, 2003, the court denied petitioner's request because it did not have discretion to stay petitioner's mixed petition. The court also advised petitioner regarding the stay and abey process and the court warned petitioner that, according to respondent, he had until approximately July 30, 2003 to timely file a fully exhausted federal petition for writ of habeas corpus. On July 29, 2003, judgment was entered dismissing the mixed petition without prejudice.
On July 29, 2003, petitioner, again in state custody and represented by counsel, filed a second petition ("second petition") for writ of habeas corpus in case number CV 03-5465. The second petition contained petitioner's three exhausted grounds. Petitioner concurrently filed a motion to hold the second petition in abeyance while he exhausted his other two grounds in the California Supreme Court. Petitioner stated that: he was going to file a petition in the California Supreme Court containing the unexhausted grounds on August 5, 2003.
BACKGROUND
On June 27, 2000, a jury convicted petitioner of two counts of robbery, conspiracy, and first degree murder in violation of California law. (Mot. to Dismiss, Ex. A).
On November 30, 2000, petitioner filed an appeal in the California Court of Appeal raising the following grounds:
1. The trial court erred in denying petitioner's motion to suppress evidence on the grounds that petitioner's arrest was unlawful;
2. The trial court erred in denying petitioner's in limine motion to exclude his extra judicial statements on the grounds that Miranda warnings were required at their inception, the statement was involuntary and the post-Miranda statement was otherwise coerced and involuntary;
3. The trial court erred in instructing the jurors pursuant to CALJIC No. 17.41.1 that they were obligated to report to the trial court any *improper" thoughts expressed by any juror during deliberations; and,
4. The Sentences on Counts 2 and 6 must be stayed pursuant to California Penal Code § 654.
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
(Mot. to Dismiss, Ex. B at 27-28). On September 25, 2001, the court of appeal affirmed the judgment and corrected petitioner's sentence in a partially published opinion. (Mot. to Dismiss, Ex. C).
On October 29, 2001, petitioner filed a petition for review in the California Supreme Court raising the following grounds:
1. Petitioner was arrested illegally and his subsequent confession should be suppressed; and,
2. the jurors were unconstitutionally instructed with CALJIC No. 17.41.1.
(Mot. to Dismiss, Ex. D at 105). On December 19, 2001, the California Supreme Court granted the petition for review and noted that "[f]urther action on the matter is deferred pending consideration and disposition of a related issue in People v. Mckay, . . ." (Mot. to Dismiss, Ex. E). After the California Supreme Court's decision in People v. McKay, 27 Cal.4th 601 (March 4, 2002), on May 1, 2002, the California Supreme Court issued another order regarding petitioner's petition for review that dismissed the petition and remanded the "cause" to the court of appeal. (Mot. to Dismiss, Ex. F). On May 8, 2002, the court of appeal closed the case and issued the remittitur. (Respondent's Response to Court's June 10, 2003 Order, Ex. A).
Petitioner did not seek collateral review in the California courts.
The first and second federal petitions followed.
CONTENTIONS
In his first federal petition, petitioner raised the following grounds:
1. Trial counsel was constitutionally; ineffective for failing to argue that petitioner's statements were the product of improper police coercion;
2. Petitioner's arrest was unlawful;
3. Evidence that was the product of the unlawful arrest was introduced at trial and used to convict petitioner;
4. Petitioner's statements should have been suppressed because he was not advised of his constitutional rights prior to questioning and were therefore obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966); and,
5. The trial court violated petitioner's federal constitutional rights when it instructed the jury pursuant to CALJIC No. 17.41.1.
(First Fed. Pet. at 5-6). Respondent contended that grounds one and four were unexhausted, and the court concurred. In his second petition, petitioner raises grounds two, three, and five. Petitioner has requested that the court hold his second petition in abeyance while he exhausts grounds one and four in the California Supreme Court.
DISCUSSION
Request to Hold in Abeyance
The Ninth Circuit has held that a district court may, in its discretion, allow a habeas corpus petitioner to amend a habeas corpus petition by deleting unexhausted claims, and then hold the amended petition in abeyance subject to future amendment reincorporating the deleted claims after they are exhausted in state court ("withdrawal-and-abeyance procedure"). See Calderon v. U.S. Dist. Court for the Northern Dist. of California (Taylor), 134 F.3d 981, 988 (9th Cir. 1998). The United States Supreme Court has held that "[n]othing in the traditions of habeas corpus requires the federal courts to tolerate needless piecemeal litigation. . . ." Sanders v. United States, 373 U.S. 1, 18 (1963).
In the context of pro se petitioners, the Ninth Circuit has stated that the exercise of discretion to stay the petition "is particularly appropriate when an outright dismissal will render it unlikely or impossible for the petitioner to return to federal court within the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA)." Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003). However, recent cases such asKelly, James v. Pliler, 269 F.3d 1124 (9th Cir. 2001), Ford v. Hubbard, 330 F.3d 1086, 1098 (9th Cir. 2003), and Brambles v. Duncan, 330 F.3d 1197, 1203-04 (9th Cir. 2003) have all emphasized that this discretion is appropriately exercised in the context of protecting the rights of pro se litigants. See Ford v. Hubbard, 330 F.3d at 1098 (stating that district judge is obligated to inform pro se litigant of his options with respect to his mixed petition because pro se. litigants are entitled to additional procedural protections); see James v. Pliler, 269 F.3d at 1126-27 (emphasizing a pro se litigant "is entitled to certain procedural protections);see Brambles v. Duncan, 330 F.3d at 1203-04 (observing that exercise of discretion to stay federal proceeding is particularly appropriate when an outright dismissal will render it unlikely or impossible for the pro se petitioner to return to federal court within the one-year limitation period imposed by AEDPA);see also Garaux v. Pulley, 739 F.2d 437, 439-40 (9th Cir. 1984) (the rights of pro se "litigants require careful protection where highly technical requirements are involved, especially when enforcing those requirements might result in the loss of the opportunity to prosecute or defend a lawsuit on the merits"); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (finding that with respect to pro se pleadings, before dismissing a pro se complaint, "the district court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively").
Based on the circumstances in which the Ninth Circuit has found it appropriate for a district court to exercise its discretion to stay a petition, a stay is not warranted in this factual context. Petitioner is represented by counsel and is not proceeding pro se. Petitioner has not diligently attempted to exhaust his state court remedies because he never sought collateral review until shortly before or after the statute of limitations expired. Respondent advised petitioner on June 6, 2003 — approximately two months before petitioner became time-barred — that two grounds were unexhausted and regarding the stay and abeyance procedure with respect to the mixed petition. Accordingly, it was petitioner's counseled decision to continue to pursue his mixed petition notwithstanding the statute of limitations and decline to file a fully exhausted petition and seek to stay and abey the petition in case number CV 03-5465. Moreover, petitioner raised hisMiranda ground — which is the basis for the unexhausted grounds he is currently seeking to exhaust in his state petition — in his appeal filed in the California Court of Appeal but not on petition for review in the California Supreme Court. Under these circumstance, holding the petition in abeyance would circumvent the one-year period of limitation prescribed by 28 U.S.C. § 2244(d). See generally Duncan v. Henry. 513 U.S. 364 (1995). Accordingly, petitioner's request that this court hold the petition in abeyance should be DENIED. Petitioner is reminded that the traverse is due on or before September 9, 2003.