Opinion
No. CIV 06-0831 ALA HC.
August 9, 2007
ORDER
Before the Court is a motion filed on November 17, 2006 by pro se petitioner Kenneth Lee Martinez, asking the Court to stay his 29 U.S.C. § 2254 habeas corpus action while he exhausts several unexhausted claims in state court. Since November 17, 2006, the California Supreme Court appears to have issued decisions finally denying at least two state habeas corpus petitions filed by Mr. Martinez that were pending on November 17, 2006. It is therefore possible that Mr. Martinez has, since November 17, 2006, exhausted all of his previously-unexhausted habeas claims. If Mr. Martinez has, in fact, exhausted each of those claims, his Motion for Stay and Abeyance must be denied as moot. The Court cannot determine whether the Motion for Stay and Abeyance is moot without further information regarding the status of Mr. Martinez's state habeas petitions.
Mr. Martinez filed his November 17, 2006 motion for a stay in response to an order this Court issued on October 20, 2006, denying a previous motion for a stay. In the October 20 order, the Court denied Mr. Martinez's previous motion on the ground that it was "conclusory and insufficient," and gave him thirty days to file an amended motion for a stay. The Court instructed that the amended motion "must (1) establish good cause for petitioner's failure to exhaust all claims prior to filing this action, (2) identify petitioner's unexhausted claims and demonstrate that each is potentially meritorious, (3) describe the status of any current state court proceedings on the unexhausted claims, and (4) demonstrate that petitioner has acted with diligence in pursuing these additional unexhausted claims." October 20, 2006 Order, Doc. No. 18.
Mr. Martinez filed a state habeas petition in San Joaquin Superior Court on February 22, 2006, setting forth claims of prosecutorial, judicial, and investigative misconduct. The San Joaquin Superior Court denied that petition on April 26, 2006. Mr. Martinez then filed a petition in the California Court of Appeal, which denied it on June 15, 2006, and the California Supreme Court, which denied it on January 24, 2007. Mr. Martinez filed a second state habeas petition in the California Supreme Court on November 7, 2006, which the California Supreme Court denied on January 24, 2007. He appears also to have filed a state habeas petition in San Joaquin Superior Court on November 16, 2006. The Superior Court denied that petition on December 28, 2006. Mr. Martinez then filed a petition in the California Court of Appeal, which the California Court of Appeal denied on March 22, 2007. It is unclear from the record whether Mr. Martinez then filed a petition in the California Supreme Court or, if so, what if any decision the California Supreme Court rendered with regard to it.
Therefore, Mr. Martinez is ordered to show cause, on or before September 6, 2007, why his Motion for Stay and Abeyance should not be denied as moot due to his subsequent exhaustion of state remedies. Mr. Martinez's filing in response to this order must: (1) list the case name, case number, and filing date of each state habeas corpus petition he filed with respect to his December 20, 2002 conviction; (2) list, for each petition, the date of each disposition issued with respect to the petition by the San Joaquin Superior Court, the California Court of Appeal, and/or the California Supreme Court; and (3) set forth each of his claims, if any, that still remain unexhausted.