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Whitmore v. Cate

February 2, 2010


The opinion of the court was delivered by: Hon. William V. Gallo U.S. Magistrate Judge


On May 26, 2009, Petitioner Paul Gordon Whitmore ("Petitioner"), a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). On October 19, 2009, Respondent filed an Answer to the Petition. On January 21, 2010, Petitioner filed a Motion for Stay and Abeyance Regarding Ground 4 ("Motion to Stay & Abey") that is now pending before the Court.

Petitioner's Motion seeks an order staying the proceedings so he can exhaust his state court remedies as to claim no. 4 in his Petition. Respondent does not oppose the Motion. For the reasons outlined below, the Court GRANTS Petitioner's Motion to Stay & Abey.

I. Exhaustion

The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims presented in a habeas corpus proceeding. 28 U.S.C.A. § 2254(b) Rose v. Lundy, 455 U.S. 509, 522 (1982). In Rose v. Lundy, the Supreme Court held "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims." Id. Such a dismissal leaves "the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." Id. at 510.

Petitioner's Petition contains both exhausted and unexhausted claims. In claim no. 4, Petitioner asserts: his 6th and 14th Amendment rights to Due Process and Fair Trial were denied when prosecutor was allowed to use multiple images for each count of molest and production of pornography."

Multiple images were allowed as the basis of most charges of 288(a) and 311.4. Some counts has as many as 70 images for a single act. There is no way to determine which image the jury member(s) thought were 'pornographic' or 'proved' the molest acts alleged. No effort was made to ensure each juror agreed on each image. Individual acts must be proved for conviction and each juror must agree on each act. Procedure was hopelessly flawed. (Petition at 6)

Here, in Petitioner's filings with the California Court of Appeal and the California Supreme Court, Petitioner referenced his 6th and 14th Amendment rights to due process. However, he did not assert his claim in either court as an alleged violation of the United States Constitution. Further, the claim presented to the California courts does not describe the federal legal theory on which the claim is based. Therefore, Petitioner's claim no. 4 was not fairly presented to the California Supreme Court. As a result, the claim is unexhausted.

II. Stay and Abeyance

When Rose v. Lundy was decided, there was no statute of limitations for filing a federal habeas corpus petition; after exhausting claims in state court, a petitioner could return to federal court "with relative ease." Rhines v. Weber, 544 U.S. 269, 125 S.Ct 1528, 1533 (2005). However, AEDPA changed many aspects of federal habeas corpus proceedings, including the application of the one-year statute of limitations for bringing a habeas corpus petition in federal court, which is set forth in 28 U.S.C. §2244(d). In Rhines, the Supreme Court recognized petitioners can effectively be denied the opportunity for collateral review in federal court "[a]s a result of the interplay between AEDPA's 1-year statute of limitations and [Rose v. Lundy]'s dismissal requirement." Rhines, 125 S.Ct. at 1533-1534. Therefore, the Rhines court held that federal courts have discretion to stay mixed petitions and to hold habeas proceedings in abeyance while the petitioner returns to state court to exhaust all claims. Id. at 1534-1535.

The Rhines court also held that stay and abeyance "should be available only in limited circumstances." Id. at 1535. If employed too often, the procedure could undermine the purposes of AEDPA, namely, to reduce delay and streamline federal habeas corpus proceedings. Id. at 1535. In this regard, the Supreme Court stated "it likely would be an abuse of discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Id.

Good Cause

Petitioner argues that he had good cause for his failure to exhaust his unexhausted claim because his appellate attorney told him that the issues in his case were exhausted and that he should file his Petition for Writ of Habeas Corpus in federal court. He followed his attorney's instructions. Respondent does not dispute Petitioner's argument. Claim is Potentially Meritorious

Petitioner's claim is potentially meritorious. Specifically, Petitioner asserts that the trial court allowed the jury to view multiple images of children to determine guilt or innocence on each count of child molestation and production of pornography. Petitioner alleges that some of the presented images do not depict children in a sexual situation. Therefore, it is unclear which images the jury used to find Petitioner guilty on ...

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