The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER: (1) ADOPTING REPORT AND RECOMMENDATION (Doc. No. 18); (2) REJECTING PETITIONER'S OBJECTIONS (Doc. No.20); and (3) MOTION FOR STAY AND DENYING PETITIONER'S ABEYANCE (Doc. Nos. 2 & 11).
Presently before the Court is Daniel Guffey's ("petitioner") motion to stay and hold in abeyance his petition for a writ of habeas corpus. For the reasons stated below, the Court denies petitioner's motion.
Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his September, 2003 convictions for conspiracy to commit assault and second degree murder. (Doc. No. 1.) Petitioner raises three grounds for relief in his petition: (1) his murder conviction was not supported by sufficient evidence; (2) joint trial with co-defendants violated the Due Process Clause and rendered his trial fundamentally unfair; and (3) the admission of his co-defendants' statements violated his right to confront and cross-examine the witnesses against him. The California Supreme Court has denied each of the claims raised in his petition.
Concurrently with his petition, petitioner filed a motion for stay and abeyance. (Doc. No. 2.) Petitioner explained he had discovered the existence of other constitutional claims not previously presented to a state court. He identified those "possible issues" as jury instructional error, prosecutorial misconduct, abuse of discretion by trial court judge, ineffective assistance of counsel, unconstitutional promises by prosecution, and ineffective assistance of appellate counsel. (Motion at 2.)
Magistrate Judge Cathy Ann Bencivengo explained the requirements for demonstrating a stay and abeyance by written order of August 28, 2008 and permitted petitioner to file an amended motion. (Doc. No. 4.) Petitioner filed an amended motion for stay and abeyance on December 28, 2007. (Doc. No. 11.) In his amended motion, petitioner again explains he would like to add claims for the broad categories of claims mentioned in his first motion, although he adds some details as to certain claims.
On January 11, 2008, respondents opposed the motion. (Doc. No. 13.) On February 21, 2008, petitioner filed a reply in support of the motion. (Doc. No. 17.) On March 28, 2008, Magistrate Judge Bencivengo issued a Report and Recommendation ("Report") recommending the Court deny petitioner's motion for a stay and abeyance. (Doc. No. 18.) On May 8, 2008, petitioner filed objections to the Report (Doc. No. 20). Respondents have not filed a reply.
Because petitioner objects to the Report in its entirety, the Court reviews the Report de novo.
28 U.S.C. § 636(b)(1); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).
Petitioner objects to the magistrate judge's recommendation that his motion for stay and abeyance be denied. Petitioner argues he has shown good cause for the stay because of the conduct of his appellate counsel. On July 31, 2007, counsel informed petitioner that his petition for discretionary review had been denied by the California Supreme Court more than one year earlier, on May 17, 2006. Counsel apologized for the delay and gave petitioner a completed copy of his federal habeas petition to file, as well as information on filing a state habeas corpus petition if petitioner chose to pursue additional claims. Counsel also mailed petitioner his case file and trial transcripts at that time. Petitioner then promptly filed his petition in this Court and moved to stay the petition so that he could exhaust certain claims in state court. Although petitioner filed this motion on August 15, 2007, he has not yet filed a state habeas petition.
Magistrate Judge Bencivengo correctly identified the standard for granting a stay and abeyance. District courts have limited discretion to hold in abeyance a habeas petition, in order to permit a petitioner to return to state court to exhaust additional claims while the federal proceedings are stayed. Rhines v. Weber, 544 U.S. 269, 277 (2005). In exercising its discretion, the Court is to consider whether: (1) "the petitioner has good cause for his failure to exhaust;" (2) the unexhausted claims are potentially meritorious; and (3) petitioner has "engaged in intentionally dilatory tactics." Id. at 278.
The magistrate judge concluded petitioner had not shown good cause for failure to exhaust. While petitioner did not realize the California Supreme Court had denied his petition for discretionary review until more than a year later, the magistrate judge concluded the mistakes of counsel to which petitioner was not constitutionally entitled do not provide "good cause." While petitioner objects that he had a right to counsel on his first appeal (Objections at 2-3), petitioner is incorrect in arguing he had a Sixth Amendment right to counsel on his petition for discretionary review by the California Supreme Court. See Coleman v. Thompson, 501 U.S. 722, 752 (1991). Where there is no right to counsel, there is also no claim for ineffective assistance of counsel, and thus attorney mistakes do not ordinarily constitute "good cause." Id. at 752-53.
The magistrate judge also recommended the Court find petitioner has also failed to demonstrate that his unexhausted claims are potentially meritorious. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). Petitioner's motion recognizes general categories of constitutional violations: jury instructional error, prosecutorial misconduct, and ineffective assistance of trial and appellate ...