The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE
On May 19, 2008, Petitioner, a California prisoner, filed this motion to stay and abey his original petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. On February 13, 2009, Magistrate Judge Jan M. Adler filed a Report and Recommendation ("R&R") recommending the Court deny Petitioner's motion for stay and abeyance. [Doc. No. 23.] For the reasons set forth below, this Court ADOPTS the R&R and DENIES Petitioner's instant motion in its entirety.
On April 23, 2005, a San Diego County jury convicted Petitioner of robbery (Cal. Penal Code § 211), and the court found him guilty of unlawful possession of a firearm by a convicted felon. (Cal. Penal Code § 12021(a)(1). [Lodgment No. 3.] The court also found that he had six prior convictions for serious and violent felonies, which subjected Petitioner to mandatory increased prison terms under California's recidivist offender sentencing laws. [Doc. No. 11.] On May 23, 2005, the court sentenced Petitioner to a total term of 60 years to life in state prison -- 25 years to life for the robbery, a consecutive 25 years to life for the firearm possession, and a consecutive 10 years (5 years each) for two of the prior serious felony convictions. [Doc. Nos. 1 and 11.]
Petitioner appealed his conviction and sentence, raising two claims now asserted in his federal habeas petition. In Ground One, Petitioner asserts that certain evidence obtained from a hotel room should have been excluded from his trial because it was obtained in violation of his right under the Fourth Amendment to be free from unreasonable searches and seizures. [Doc. No.1.] In Ground Two, Petitioner asserts that the evidence adduced at trial was insufficient to support his robbery conviction because it did not establish "fear" which is a required element of the crime of robbery under California law. [Id.] The state courts considered and rejected these claims. [Doc. No. 1.] The California Court of Appeal affirmed the San Diego County Superior Court's judgment in a reasoned written decision on September 28, 2006. [Lodgment No. 7.] Petitioner then sought review from the California Supreme Court, raising these same issues. [Lodgment No. 8.] The California Supreme Court denied review on December 13, 2006. [Doc. No. 1., Exhibit A; Lodgment No. 9.]
On December 10, 2007, Petitioner filed the instant Petition for Writ of Habeas Corpus alleging the same two claims from his appeal in state court. On May 6, 2008, Respondent filed an Answer to the Petition for Writ of Habeas Corpus. [Doc. No. 11.] Two weeks later, on May 21, 2008, Petitioner filed a Motion for Stay and Abeyance For Leave to Amend ("Motion") raising six new issues. [Doc. No. 13.] Petitioner's Motion requests that all proceedings in this Court be stayed while he exhausts the following six additional claims in state court: (1) ineffective assistance of counsel, (2) insufficient evidence used on prior out-of-state conviction; (3) prejudicial evidence brought before the jury; (4) denial of jury trial on issue of whether Petitioner's prior out-of-state conviction qualified as a strike under California law; (5) improper treatment of prior federal convictions as five, not one, conviction; and (6) ineffective assistance of appellate counsel. [Doc. No. 13.] On May 30, 2008, the Court filed an order requiring a response to Petitioner's motion to stay [doc. no. 14.], and on July 16, 2008, Respondent filed an opposition to the Motion claiming Petitioner had failed to show good cause for not presenting and exhausting his claims in the state courts first and thus the Court should not grant the motion for stay and abeyance. [Doc. No. 20.] Petitioner filed a reply on September 8, 2008 arguing that his counsel had essentially disadvantaged him because she (1) delayed notifying him of the State Supreme Court's final judgment and (2) delayed sending Petitioner the trial transcripts as requested. [Doc. No. 22]. On February 13, 2009, Magistrate Judge Adler filed a Report and Recommendation (R&R) recommending Petitioner's motion for stay and abeyance be denied for failure to show good cause. [Doc. No. 23.] Petitioner then filed objections to the R&R raising the same arguments as he had previously made. [Doc. No. 25.]
Motion for stay and abeyance District courts have limited discretion to stay and abey habeas petitions. See Rhines v. Weber, 544 U.S. 269 (2005). Granting a stay effectively excuses a petitioner's failure to present his claims first to the sate courts. Id. at 277. Thus, a district court should grant a stay and abeyance only if: (1) "the petitioner had good cause for his failure to exhaust"; (2) "his unexhausted claims are potentially meritorious"; and (3) "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id. at 275. In addition, the petitioner must set forth facts demonstrating good cause for his failure to timely exhaust the state court remedies. Id. at 277.
Pro se litigants' pleadings are generally treated with greater leniency due to a lack of formal legal education. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). Nevertheless, a pro se litigant must provide the defendant(s) with notice of whatever wrong(s) the defendant allegedly committed. Brazil v. U.S. Dep't of Navy, 66 F.3d 193, 199 (9th Cir. 1995). Civil rights claims are also construed liberally. See Holley v. Crank, 400 F.3d 667, 674 (9th Cir. 2005); see also Bretz v. Kelman, 773 F.2d 1026, 1027 (9th Cir. 1985) (en banc) (holding that courts "have an obligation where the petitioner is pro se, particularly in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of any doubt"). However, a liberal interpretation cannot supply essential elements of the claim that were not initially pled. Ivey v. Bd. of Regents of Univ. of Ala., 673 F.2d 266, 268 (9th Cir. 1982).
Reviewing a Magistrate Judge's R&R
The duties of a district court in connection with a magistrate judge's R&R are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). A district court must "make a de novo determination of those portions of the report... to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3) (2007); see also United States v. Raddatz, 447 U.S. 667, 676 (1980) ("[I]n providing for a 'de novo' determination... Congress intended to permit whatever reliance a district judge, in exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations.").
When no objections are filed to the R&R, the district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. See Campbell v. U.S. Dist. Ct., 501 F.2d 196, 206 (9th Cir. 1974). Only when a petitioner has filed objections must a district court review findings of fact and ...