Opinion
Case No.: 17-cv-0174-CAB-AGS
12-04-2017
Andrew MUNDY, Petitioner, v. Raymond MADDEN, Respondent.
REPORT AND RECOMMENDATION TO DENY PETITIONER'S MOTION FOR A STAY (ECF No. 6) AND DISMISS UNEXHAUSTED CLAIM
The California Court of Appeal previously ruled that petitioner Andrew Mundy's lengthy sentence passed constitutional muster, and that he was "precisely the type of recidivist offender targeted by [California's] Three Strikes law." (ECF No. 10-1, at 19; see id. at 12-17.) In this habeas proceeding, Mundy seeks review of that ruling and also raises a new argument never presented to the state courts: that his trial and appellate attorneys were ineffective for failing to challenge the constitutionality of his sentence. But his attorneys did contest the constitutionality of his sentence, and the state appellate court squarely rejected that argument. Thus, Mundy's new claim is plainly meritless. And his motion for a stay to pursue this unexhausted claim, therefore, fails.
Appellate counsel urged the California Court of Appeal to reach the constitutional sentencing issue because either: (1) the trial attorney's general sentencing objections adequately preserved the claim or (2) the failure to raise more specific objections constituted ineffective assistance of counsel. (ECF No. 6, Exh. A, at 9-11.) The appellate court never addressed the waiver argument and presumably found the issue preserved below. (See generally ECF No. 10-1.) --------
Mundy seeks a stay under either Rhines v. Weber, 544 U.S. 269 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other gds. by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). But neither a Rhines stay nor a Kelly stay should be granted to exhaust a plainly meritless claim. Rhines, 544 U.S. at 277 ("[T]he district court would abuse its discretion if it were to grant [the petitioner] a [Rhines] stay when his unexhausted claims are plainly meritless." (citation omitted)); Knowles v. Muniz, 228 F. Supp. 3d 1009, 1016 (C.D. Cal. 2017) ("[A] Kelly stay will be denied when the court finds such a stay would be futile," such as when "petitioner seeks a stay to exhaust a meritless claim." (citations omitted)).
The Court recommends that Mundy's motion for a stay be DENIED and that his unexhausted ineffective-assistance-of-counsel claim be DISMISSED. Upon being served with a copy of this report, each party has 14 days to file any objections. See Fed. R. Civ. P. 72(b)(2). A party may respond to any such objection within 14 days of being served with it. See id. Dated: December 4, 2017
/s/_________
Hon. Andrew G. Schopler
United States Magistrate Judge