The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
DEATH PENALTY CASE ORDER:(1) DENYING RESPONDENT'S MOTION TO DISMISS FOR FAILURE TO EXHAUST; (2) GRANTING PETITIONER'S MOTION TO STAY FEDERAL PETITION UNDER KELLY V. SMALL; AND,(3) SETTING DEADLINES FOR WITHDRAWAL OF UNEXHAUSTED
CLAIM UNDER KELLY AND FOR COMMENCEMENT OF STATE EXHAUSTION PROCEEDINGS
On October 7, 2010, Respondent filed a Motion to Dismiss the First Amended Petition for Failure to Exhaust State Remedies with respect to Claims 14 and 22. On October 29, 2010, Petitioner filed an Opposition to the Motion to Dismiss, and alternatively, a Motion for Stay and Abeyance in the event that the Court found the contested claims unexhausted. Respondent has also filed a Reply, and Petitioner has filed a Sur-Reply. The Court finds the issues presented suitable for decision without oral argument. For the following reasons, the Court DENIES Respondent's Motion to Dismiss, GRANTS Petitioner's Motion for Stay and Abeyance, and SETS deadlines as outlined below.
Petitioner Jaime Hoyos and co-defendant Emilio Alvarado were charged with two counts of first-degree murder and one count of attempted murder in the deaths of Daniel and Mary Magoon and the wounding of their 3 year old son J. Both defendants were also charged with conspiracy to commit robbery, first degree robbery, burglary, grand theft of a firearm, and transporting more than 28.5 grams of marijuana. Petitioner and Alvarado were tried together.
After a guilt phase trial, Petitioner and Alvarado were convicted on two counts of first-degree murder (Cal. Penal Code Â§ 187) and acquitted of attempted murder but convicted of the lesser included offense of assault with a firearm (Cal. Penal Code Â§Â§ 664, 187, 245 (a)(2)). Petitioner and Alvarado were also convicted of conspiracy to commit robbery (Cal. Penal Code Â§Â§ 211, 182.1), first degree robbery (Cal. Penal Code Â§ 211), burglary (Cal. Penal Code Â§ 459), grand theft of a firearm (Cal. Penal Code Â§ 487.3), and transporting more than 28.5 grams of marijuana (California Health and Safety Code Â§ 11360(a)).
The jury further found that Petitioner and Alvarado used a firearm in the commission of the murder (Cal. Penal Code Â§ 12022.5). The jury also found true the special circumstance allegations that the murder was committed during the course of a robbery and burglary (Cal. Penal Code Â§ 190.2(a)(17), and multiple murder (Cal. Penal Code Â§ 190.2(a)(3)). Before the penalty phase, the trial court denied Petitioner's motion for a new trial, but granted Alvarado's. Alvarado later pled guilty and was sentenced to life without the possibility of parole.
After the penalty phase, the jury returned a sentence of life without the possibility of parole in the murder of Daniel Magoon, and a verdict of death in the murder of Mary Magoon. On July 11, 1994, the trial court denied Petitioner's motions for a new trial and for modification of the verdict, and sentenced him to death.
On automatic appeal of this conviction and judgment to the California Supreme Court,Petitioner filed an opening brief on October 17, 2003, raising sixteen (16) claims for relief. Petitioner filed a reply brief on March 16, 2006. The California Supreme Court affirmed Petitioner's conviction and sentence in a decision issued on July 23, 2007. People v. Hoyos, 41 Cal. 4th 872 (2007). On February 19, 2008, the Supreme Court of the United States denied his petition for a writ of certiorari.
On September 11, 2006, while his direct appeal was pending, Petitioner filed a habeas petition with the California Supreme Court, raising eighteen (18) claims for relief. (Lodgment No. 106.) Petitioner also filed a reply brief on July 11, 2008. (Lodgment No. 117.) The petition was denied on February 18, 2009, without an evidentiary hearing.
On February 26, 2009, Petitioner filed motions for the appointment of counsel and for a stay of execution with this Court. On October 2, 2009, the Court appointed Mr. Multhaup and Mr. Adams as counsel. On February 16, 2010, the Court granted Petitioner's Motion for Equitable Tolling and Tolling the Deadline for Filing the First Amended Petition to September 1, 2010. On February 18, 2010, Petitioner filed a protective Petition for a Writ of Habeas Corpus. On September 1, 2010, Petitioner filed a First Amended Petition ["FAP"], the operative pleading in this action.
On October 7, 2010, Respondent filed the instant Motion to Dismiss ["Resp. MTD"] and attached memorandum in support of the motion ["Resp. Mem."]. Petitioner filed an Opposition to the Motion to Dismiss together with a Motion for Stay and Abeyance ["Pet. Opp. and Mot."] on October 29, 2010. Respondent filed a Reply to the Motion to Dismiss ["Resp. Reply"] and Opposition to the Motion for Stay and Abeyance ["Resp. Opp."] on November 10, 2010, and on November 19, 2010, Petitioner filed a Reply to Respondent's Opposition ["Pet. Reply"].
II. STATUTORY EXHAUSTION REQUIREMENTS
Title 28, United States Code, Â§ 2254(b)-(c), sets forth the following rule regarding exhaustion requirements for federal habeas corpus claims:
(b) (1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that--
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, ...