Opinion
No. 2:97-cv-0018-GEB-GGH-P.
June 5, 2006
ORDER
Petitioner, a state prisoner proceeding through counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.
On March 9, 2006, the magistrate judge filed findings and recommendations ("FRs") herein which were served on all parties and which contained notice to all parties that any objections to the FRs were to be filed within twenty days. Petitioner has filed objections to the FRs.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. As stated in the FRs, "counsel's oversight and workload do not constitute good cause for the delay in the presentation of [Petitioner's new] claims." (FRs at 5.) However, the portion of the FRs in which the Magistrate Judge defines "good cause" by using the same factors that are used to define "excusable neglect" in Pioneer Inv. Services, v. Brunswick Associates, 507 U.S. 394 (1993), a bankruptcy case, is not adopted, since it is more appropriate to use the same standard a habeas petitioner must satisfy in a procedural default case. "[T]o show "cause" for a procedural default, a petitioner ordinarily must show that the default resulted from an objective factor external to the petitioner which cannot fairly be attributed to him or her." Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1206-07 (C.D. Cal. 2005). Here, counsel's oversight does not constitute cause. Cf. Johnson v. Sullivan, 2006 WL 37037, at *3 (C.D. Cal. Jan. 4, 2006) ("[A]n error of appellate counsel on a discretionary appeal . . . cannot constitute cause to excuse a procedural default in a federal habeas proceeding. Counsel's failure to raise the issue cannot be deemed `good cause' for the failure to exhaust state remedies.").
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed March 9, 2006, are adopted as stated above; and
2. Petitioner's January 24, 2006, motion to stay is denied.