Opinion
20-cv-07286-KAW
09-14-2021
MYKOLAY MCGOWEN, Plaintiff, v. LANDON BIRD, et al., Defendants.
ORDER GRANTING MOTION TO STAY RE: DKT. NO. 11
KANDIS A. WESTMORE UNITED STATES MAGISTRATE JUDGE
On October 16, 2020, Petitioner Mykolay McGowen filed a petition for a writ of habeas corpus. (Pet., Dkt. No. 1.) Petitioner was found guilty of premeditated attempted murder of two individuals (“Waters convictions”), and of attempted murder of a third individual (“Tran conviction”). (Pet. ¶ 1.)
The Court of Appeal reversed the Tran conviction, but upheld the Waters convictions. (Pet. ¶ 3.) The case was remanded to the Superior Court for resentencing. (Pet. ¶ 3.) On February 23, 2021, Petitioner was resentenced. (Dkt. No. 7 at 1.) While preparing for the resentencing, Petitioner's counsel became aware of new witness statements that contradicted the prosecution's theory of the case. (Id. at 2.)
On May 26, 2021, Petitioner filed a habeas petition in Alameda County Superior Court based on the newly discovered evidence. (Mot. to Stay, Dkt. No. 11-1 at 2.) On August 11, 2021, Petitioner filed the instant motion to stay the case and hold his petition in abeyance so that he may exhaust a timely claim. As of the date of this order, no opposition has been filed.
Where a habeas petition includes both exhausted and unexhausted claims, the Supreme Court has held that a district court may stay the mixed habeas petition to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Rhines requires a petitioner to show: (1) “good cause” for his failure to exhaust his claims in state court, (2) that his unexhausted claims are not “plainly meritless, ” and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Id. at 278. The district court's discretion to stay a mixed petition is circumscribed by the Antiterrorism and Effective Death Penalty Act's (“AEDPA”) stated purposes of reducing delay in the execution of criminal sentences and encouraging petitioners to seek relief in the state courts before filing their claims in federal court. Id. at 277. Because the use of a stay and abeyance procedure has the potential to undermine these dual purposes, its use is appropriate only when the district court has first determined that there was good cause for the petitioner's failure to exhaust the claims in state court and that the claims are potentially meritorious. Id. Moreover, when granting a stay, the district court must effectuate the timeliness concerns in AEDPA by placing “reasonable limits on a petitioner's trip to state court and back.” Id. at 278.
Here, Petitioner has demonstrated “good cause” for his failure to exhaust, as the new evidence at issue was not discovered until February 2021. (See Mot. to Stay, Exh. 1 (“State Habeas Petition”) ¶ 29.) Specifically, an investigator spoke to Anthony Smith, who was originally charged as a codefendant with Petitioner in this case, and had pled and admitted his involvement in the shootings at issue. Mr. Smith informed the investigator that he had lied to the police when he had implicated Petitioner, that Petitioner was not the shooter, and identified a different individual as the shooter. (State Habeas Petition ¶¶ 30-31.) Thus, Petitioner did not have this evidence until Mr. Smith's interview in February 2021, and could not have raised it before.
Second, Petitioner's unexhausted claim is not “plainly meritless, ” as it involves a new witness statement from a former codefendant that another individual was the shooter.
Finally, there is no evidence in the record that suggest Petitioner is engaged in “intentionally dilatory litigation tactics.”
Accordingly, the Court finds that Petitioner has demonstrated good cause for a stay, and GRANTS Petitioner's motion for a stay. Thirty days after the entry of this order, and every 90 days thereafter until proceedings in Petitioner's state exhaustion case are completed, Petitioner shall serve and file a brief report updating the Court on the status of his pending state habeas action. No. later than 30 days after proceedings in his state case are completed, Petitioner shall serve and file notice that proceedings are completed.
IT IS SO ORDERED.