Opinion
Case No. CV 15-02639-AG (SHK)
04-27-2018
FRANK PARET HOWARD, Petitioner, v. J. SOTO, Warden, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records and files herein, and the Report and Recommendation of the United States Magistrate Judge. Objections to the Report and Recommendation have been filed by Petitioner, and the Court has made a de novo determination of those portions of the Report and Recommendation to which objections have been made. The Court accepts the findings and recommendation of the Magistrate Judge.
In his Objections, Petitioner contends that the Magistrate Judge incorrectly concluded that he had failed to meet the standards for relation back set forth in Fed. R. Civ. P. 15(c)(1), (c)(1)(A)-(B). Petitioner is incorrect. As the Magistrate Judge set forth in the Report and Recommendation, Petitioner's original Petition for Writ of Habeas Corpus was timely filed in this Court on April 9, 2015. Following the granting of a stay to exhaust additional claims, Petitioner's Motion to Amend and the proposed First Amended Petition ("FAP") were not constructively filed until March 16, 2017, which was nearly two years after the May 12, 2015 one-year period of limitation under the Anti-Terrorism and Effective Death Penalty Act. Thus, as the Magistrate Judge correctly found, unless the new claims proposed in the FAP related back to the filing date of the original Petition, they were untimely. Because the proposed claims in the FAP raised ineffective assistance of counsel claims and a cumulative error claim that were not "tied to a common core of operative facts" underpinning the claims properly contained in the original Petition, the Magistrate Judge correctly concluded that the Motion to Amend should be denied. Mayle v. Felix, 545 U.S. 644, 664 (2005).
Next, insofar as the Court can tell, Petitioner contends that the Court erred in failing to grant the stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). This objection is directed to the granting of the stay in the first instance, and not to the Report and Recommendation issued by the Magistrate Judge. In any event, the Court finds that, in issuing the Order Granting Petitioner's Request For Stay, the then-assigned Magistrate Judge correctly concluded that Petitioner failed to meet the standard set forth for the granting of a stay pursuant to Rhines because Petitioner failed to identify any of the claims he sought to exhaust in state court such that the Court could not assess their merit; Petitioner failed to establish good cause for a stay under Rhines; and Petitioner failed to show that he was not engaged in intentionally dilatory litigation tactics.
The then-assigned Magistrate Judge also found that the fact that the Petition was wholly exhausted meant that it could not be subject to a stay under Rhines. Subsequent to the issuance of the Order Granting Petitioner's Request For Stay in this case, the Ninth Circuit issued its decision in Mena v. Long, 813 F.3d 907 (9th Cir. 2016), holding that a district court may stay a fully exhausted petition under Rhines. Nevertheless, this decision does not render erroneous the Magistrate Judge's determination that a Rhines stay was inappropriate in this case given the Petitioner's failure to set forth his proposed amended claims, his failure to show good cause, and his failure to demonstrate that he was not engaged in intentionally dilatory litigation tactics. --------
In granting the stay pursuant to Kelly, the Magistrate Judge expressly advised Petitioner that he bore the risk that he may be precluded from adding the newly exhausted claims to the Petition if they were determined to be untimely and not sufficiently related to his timely claims pursuant to Pace v. DiGuglielmo, 544 U.S. 408, 416 n.6 (2005) and Mayle, 545 U.S. at 650, 664.
The Court finds that the Objections do not alter the findings and conclusions of the Magistrate Judge. Thus, having made a de novo determination to those portions of the Report and Recommendation to which objections have been made, the Court accepts the findings, conclusions, and recommendations of the Magistrate Judge.
Accordingly, IT IS ORDERED THAT: (1) The Report and Recommendation is accepted; (2) Respondent file an Answer on the merits of the original Petition within thirty (30) days of the date of this Order; and (3) The Clerk serve copies of this Order on the parties. Dated: April 27, 2018
/s/_________
HONORABLE ANDREW GUILFORD
United States District Judge Presented by: /s/_________
HONORABLE SHASHI H. KEWALRAMANI
United States Magistrate Judge