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SHERRORS v. SCRIBNER

United States District Court, S.D. California


October 17, 2005.

RONNIE JERMAINE SHERRORS, Petitioner,
v.
A.K. SCRIBNER, Warden, Respondent.

The opinion of the court was delivered by: LEO PAPAS, Magistrate Judge

REPORT AND RECOMMENDATION DENYING MOTION FOR STAY AND ABEYANCE OF PETITION (12-1)

On June 20, 2005, Petitioner Ronnie Jermaine Sherrors (hereafter "Petitioner"), a prisoner in state custody, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. On September 12, 2005, Respondent filed a Motion to Dismiss the Petition. On September 23, 2005, the Court issued a Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies. In that Notice, the Court informed Petitioner that several of his claims were unexhausted and gave Petitioner four options on how to proceed with his case. On September 30, 2005, Petitioner selected one of those options by filing a Request for Stay & Abeyance of Habeas Proceedings, which the Court construes as a Motion for Stay & Abeyance of his Petition. Respondent does not oppose the Motion for Stay & Abeyance.

Petitioner concedes that several of his claims are unexhausted. (Request for Stay at p. 2) He seeks to stay his Petition because he does not know if his habeas petition now pending before the California Supreme Court will toll the statute of limitations. However, the statute of limitations is tolled from the time the first state habeas petition is filed until the California Supreme Court rejects petitioner's final collateral challenge. Nino v. Galaza 183 F.3d 1003 (9th Cir. 1999) Therefore, while Petitioner's habeas petition is pending before the California Supreme Court, his statute of limitations is tolled.

  This Court has the discretion to allow the voluntary dismissal of unexhausted claims contained in a mixed petition and to hold in abeyance a petitioner's exhausted claims until all claims are fully exhausted. See Calderon v. United States District Court (Thomas), 144 F.3d 618, 620-21 (9th Cir. 1998); Calderon v. United States District Court (Taylor), 134 F.3d 981, 988 (9th Cir. 1998). However, granting a stay routinely in every case would allow petitioners to circumvent the AEDPA's one-year statute of limitations. See Sperling v. White, 30 F. Supp. 2d 1246, 1249-52 (C.D. Cal. 1998) (stating that "allowing petitioners to circumvent section 2244(d), simply by filing unexhausted habeas petitions in federal court, would not serve the object and policy of the AEDPA"). Therefore, holding a habeas petition in abeyance is appropriate only where "special circumstances" are shown. See Slayton v. Smith, 404 U.S. 53, 54 (1971) (per curiam); Nelson v. George, 399 U.S. 224 (1970).

  From review of the record presented to this Court, it is evident that special circumstances do not exist in this case. Specifically, Petitioner indicates that he was convicted on June 7, 2001. Petitioner appealed his conviction. (Petition at 1) His conviction apparently became final for purposes of calculating the one-year statute of limitations on or about December 30, 2003, the last day Petitioner could have filed a petition for writ of certiori with the United States Supreme Court. Bowen v. Roe 188 F.3d 1157, 1159 (9th Cir. 1999) Petitioner filed his first state habeas petition on or about September 25, 2004, at a time when he had approximately three months left on the one-year statute of limitations. The statute of limitations began tolling on the day the first state habeas petition was filed, and will stop tolling on the day the California Supreme Court's order adjudicating the pending petition is filed. See Nino, 183 F.3d at 1006 Therefore, Petitioner will have approximately three months in which to timely file his federal petition after the state supreme court rules on his state habeas petition. The Court cautions Petitioner however that it is at this time making no determination regarding the calculation of the statute of limitations, which is ultimately Petitioner's sole responsibility. Therefore, this Court RECOMMENDS that Petitioner's Motion for Stay & Abeyance of his Petition be DENIED.

  Since the Court recommends that Petitioner's Motion for Stay and Abeyance be denied, the Court also RECOMMENDS that Petitioner be given the following options:

  Option 1: Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 520-21 (1982) (stating that a petitioner who files a mixed petition may dismiss his petition to "return[] to state court to exhaust his claims"). If Petitioner chooses this option, he should file a pleading with this Court by a date certain.

  Option 2: Petitioner may formally abandon his unexhausted claims and proceed with his exhausted one. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit[] the habeas petition to present only exhausted claims"). If Petitioner chooses this third option, he should file a pleading with this Court on a date certain.

  The Court further RECOMMENDS that Petitioner be cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b).*fn1 CONCLUSION

  Based on the foregoing, the Court hereby RECOMMENDS that Petitioner's Motion to Stay & Abey his Petition be DENIED and he be given options on how to proceed with his habeas petition pending in this Court.

  This Report and Recommendation is submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1) (1994). IT IS ORDERED that no later than November 17, 2005, any party may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be served and filed no later than December 4, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051017

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