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EROS CARO v. VASQUEZ

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA


March 16, 1992

FERNANDO EROS CARO, Petitioner,
v.
DANIEL VASQUEZ, Warden of California State Prison at San Quentin, et. al., Respondents.

The opinion of the court was delivered by: J. P. VUKASIN, JR.

ORDER GRANTING RESPONDENT'S MOTION RE: VACATING STAY AND DISMISSING FEDERAL HABEAS PETITION

 INTRODUCTION

 Respondents' Motion to Vacate Stay and Dismiss Federal Habeas Petition was scheduled to be heard on February 20, 1992. After a review of the briefs, this court considered it appropriate to submit the motion on the pleadings pursuant to Local Rule 220-1, and now GRANTS the motion.

 BACKGROUND

 The intolerable history of this case began on April 25, 1989 when petitioner obtained from another judge of this court an order appointing counsel and a "temporary" stay of the execution then scheduled for May 5, 1989. The court ordered the "temporary" stay of execution even though no petition for writ of habeas corpus had been filed. Rather, the stay was entered to provide the petitioner with counsel and to allow counsel adequate time to prepare the petition. Such a stay is authorized by Local Rules 296-8(a) and (b). *fn1" That judge subsequently stayed the action five additional times for appointment of counsel and preparation of the petition.

 Finally, on April 27, 1990, more than one-year after the district court initially issued its "temporary" stay of execution, the petitioner filed a petition for writ of habeas corpus. However, the petition contained unexhausted claims, and thus, the district court could not proceed on the merits. Because the petition was "mixed," the district court, on the same day that the petition was finally filed, granted petitioner's ex parte application for a stay of execution pending final disposition of the federal proceeding, pursuant to Local Rule 296-8(a), and for a stay of the federal proceeding pending exhaustion of the state claims, pursuant to Local Rule 296-8(e).

 The impact of the district court's order of April 27, 1990 was to place this action in limbo, to the benefit of the petitioner and to the detriment of the state. In effect, the court's order stayed petitioner's execution date pending final disposition of the federal habeas petition, and, final disposition of the federal habeas petition was stayed pending completion of the state court proceedings on the unexhausted claims. But, at the time of the order of April 20, 1990, there was no state habeas petition on which to proceed on the unexhausted claims. Nor is there any mechanism in the court's order to ensure that a state habeas petition on the unexhausted claims will be filed. And indeed, after almost two years, no state proceeding has been instituted to address the merits of the unexhausted claims stated in petitioner's federal habeas petition.

 In his April 20, 1990 ex parte application for a stay, petitioner stated that: "He plans to file an application for such state court relief promptly." However, petitioner has failed to do so. As of this date, the petitioner has yet to file a state habeas corpus petition in the California Supreme Court, even though the state Death Judgment Policies appear to indicate that all such petitions should be brought to the Supreme Court.

 In an effort to show due diligence, petitioner makes much of the fact that on January 16, 1991, he filed a state habeas petition in Santa Clara County Superior Court. On February 15, 1991, the petition was transferred to Fresno County Superior Court. On May 22, 1991, the superior court, on respondent's motion, dismissed the petition without prejudice so that a petition could be filed in the California Supreme Court. Nine months later, petitioner has yet to file a state habeas petition in the California Supreme Court. Thus, almost two years have elapsed since a judge of this court issued a stay in order that petitioner could "promptly" apply for state habeas relief, and no state court has addressed the merits of the unexhausted claims that the petitioner raised in the federal proceeding.

 DISCUSSION

 This Court has fully reviewed the record and file in this case, and finds that the length of the stay of execution and stay of the proceedings on this federal habeas corpus petition is outrageous, and finds petitioner's lack of diligence in seeking relief on his unexhausted state claims to be scandalous. Federal courts, as courts of limited jurisdiction, should not, within the constitutional framework, preclude the states from exercising their sovereign powers to enforce their criminal laws. See In re James Blodgett, 1992 WL 2559 (U.S. 1/13/92) (where the Supreme Court recognized that federal courts have a "concomitant duty to take all steps necessary to ensure prompt resolution" of a habeas petition after the issuance of a stay of execution directed to a State.)

 Moreover, it is well established that "under our federal system, federal and state courts [are] equally bound to guard and protect rights secured by the Constitution." Rose v. Lundy, 455 U.S. 509, 519, 71 L. Ed. 2d 379 , 102 S. Ct. 1198 (1982) quoting Ex parte Royall, 117 U.S. 241, 251, 29 L. Ed. 868 , 6 S. Ct. 734 (1886). Federal courts, as a matter of comity, should not overturn a state court conviction on constitutional grounds, without first providing the state court with an opportunity to correct its own constitutional violation. See, e.g., Darr v. Burford, 339 U.S. 200, 204, 70 S. Ct. 587, 94 L. Ed. 761 (1950); Duckworth v. Serrano, 454 U.S. 1, 3, 70 L. Ed. 2d 1 , 102 S. Ct. 18 (1981). Thus, in order to protect the state courts' important role in the enforcement of federal law, federal relief is inappropriate prior to the total exhaustion of all available state remedies. See, e.g., Id.; Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 490-91, 35 L. Ed. 2d 443 , 93 S. Ct. 1123 (1973).

 Recognizing these important principles, Local Rules 296-8(a) and (e) authorize this Court to stay the federal proceeding pending exhaustion of state remedies. However, such abeyance is neither mandatory, nor always the proper course. This case clearly demonstrates the ease by which the Local Rules can be exploited and perverted, resulting in a violent abuse of the "great writ," and an execrable windfall for the petitioner. For the past three years a federal court has interfered with the state's sovereign authority to enforce its own laws, without taking any action. For the last two years, petitioner has failed to properly present the state with an opportunity to cure the alleged constitutional violation. Under these circumstances, the Supreme Court mandate is clear: "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Rose v. Lundy, 455 U.S. at 523 (emphasis added). Therefore, immediate dismissal is appropriate.

 ORDER

 In accordance with the foregoing discussion, IT IS HEREBY ORDERED that:

 1. Respondent's motion to vacate stay and dismiss the federal habeas petition is GRANTED.

 2. The Order of the Court of April 27, 1990 re: stay of execution and stay of proceedings on federal habeas corpus petition is VACATED.

 3. This Court will not entertain the "mixed" petition, and therefore, pursuant to Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379 , 102 S. Ct. 1198 (1992), the federal habeas corpus petition presently pending in this court is DISMISSED WITHOUT PREJUDICE.

 4. The respondent should petition, forthwith, the appropriate state court for a new execution date.

 DATED: 3-16-92

 J. P. VUKASIN, JR.

 UNITED STATES DISTRICT JUDGE


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