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Holloway v. Curry

July 26, 2010

KEVIN LOUIS HOLLOWAY, PETITIONER,
v.
BEN CURRY, RESPONDENT.



ORDER AND FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction following his jury trial in the Sacramento County Superior Court. Before the court is petitioner's motion for a stay and abeyance.

BACKGROUND

Petitioner alleges that on June 30, 2006, he was convicted of conspiracy and transporting various controlled substances into a state prison where he was imprisoned. As a result, petitioner alleges, he was sentenced to a term of twenty-five years to life imprisonment under California's Three-Strikes Law.

Petitioner appealed his conviction to the California Court of Appeal.*fn1 The judgment of conviction was affirmed on appeal. Petitioner then filed a petition for review to the California Supreme Court which was denied on September 19, 2007.

On December 19, 2007, petitioner's judgment of conviction became final for purposes of the AEDPA's one-year statute of limitations for the filing of an application for federal habeas relief. See 28 U.S.C. § 2244(d)(1)(A) ("A 1-year period of limitation shall . . . . run from the latest of (A) the date on which the judgment became final by the conclusion of direct review . . . ."); Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999) (holding that the period of direct review includes the 90-days a petition for a writ of certiorari with the United States Supreme Court could be filed). Thus, the statute of limitations for the filing of a federal habeas petition in this case began to run on December 20, 2007.

On December 15, 2008, petitioner signed the federal habeas petition that was submitted to this court. That date is therefore construed as the filing date of the petition.*fn2 See Houston v. Lack, 487 U.S. 266, 276 (1988) (announcing mailbox rule); Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003) (applying mailbox rule and concluding that the filing date was when the federal habeas petition was signed). Thus, although he used all but five days of the statute of limitations period, petitioner's pending federal habeas petition was timely filed.

In that petition, petitioner sets forth the following grounds for granting relief: (1) the trial court abused its discretion when it failed to dismiss a prior strike, (2) petitioner's sentence constitutes cruel and unusual punishment, (3) the trial court abused its discretion when it failed to hold an in camera hearing to determine whether information provided by an informant corroborated petitioner's assertion that he was pressured and threatened by other inmates to transport illegal drugs, and (4) his trial counsel provided ineffective assistance by failing to investigate and interview corroborating witnesses, including petitioner's cell mate, about the pressure and threats petitioner received from other inmates. Petitioner acknowledges that grounds three and four are unexhausted. In this regard, petitioner explains as follows:

Ground(s) number 3 & 4 have not previously been presented in any other court and this is because my appellant attorney rendered me ineffective assistance of counsel as well as she failed to include these issues on appeal after being requested by me to do so.

(Petition at 6.)

On November 19, 2009, this court advised petitioner that he had filed a mixed petition and that if he intended to file a motion for a stay and abeyance while he exhausted his unexhausted claims, he was required to make the showing set forth in Rhines v. Weber, 544 U.S. 269 (2005). Those requirements are: (1) a showing of good cause for petitioner's failure to exhaust all claims, (2) an explanation as to how each unexhausted claim is potentially meritorious, (3) a description of the status of pending state court proceedings on the unexhausted claims, and (4) an explanation as to how petitioner has acted diligently in pursuing his unexhausted claims. See Order, filed Nov. 19, 2009 at 3 (citing Rhines, 544 U.S. at 277-78). Petitioner was also advised that he could elect to file an amended petition containing only his exhausted claims and proceed with those exhausted claims, or voluntarily dismiss this action and file a new federal petition after he had exhausted state court remedies with respect to his unexhausted claims. However, petitioner was cautioned by the court of the one-year statute of limitations applicable to the seeking of federal habeas relief and was ordered to inform the court as to how he intended to proceed.

After one extension of time to file his response to the court's order, petitioner filed his response on January 15, 2010. Therein, petitioner responded that he intended to file a motion seeking a stay and abeyance. On January 26, 2010, the court ordered petitioner to file his motion for stay and abeyance within thirty days. On February 19, 2010, petitioner filed the motion for a stay and abeyance that is now pending before the court.

PETITIONER'S MOTION FOR STAY AND ABEYANCE

Petitioner's three-page motion consists of a brief statement that he is seeking a stay and abeyance and a declaration under penalty of perjury in which he merely makes the following assertions: Petitioner "had no idea" that he was required to exhaust grounds three and four and that he "didn't intentionally . . . [file a mixed petition] to initiate any sort of a delay" or to "waste scarce judicial resources[.]" (Mot. at 2.) With the assistance of "experienced prison law clerks," petitioner is attempting to exhaust his state court remedies. (Id.) Those unexhausted claims are now pending in a habeas action filed, presumably, in the Sacramento County Superior Court. (Id.) Petitioner describes his unexhausted claims as alleging: (1) a violation of his due process rights by the trial court when petitioner was denied information which was provided by an informant, and (2) ineffective assistance of counsel for ...


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