IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 2, 2011
TRESSA J. MORRISON, PETITIONER,
DEBORAH L. PATRICK, RESPONDENT.
The opinion of the court was delivered by: Timothy J Bommerunited States Magistrate Judge
This proceeding arises from a petition for writ of habeas corpus brought under 28 U.S.C. § 2254. Petitioner was appointed counsel in January 2009. An amended federal habeas petition was filed on October 9, 2009 which raised several claims. In Claim I of the amended federal habeas petition, Petitioner raised the following ineffective assistance of counsel claims: (1) failing to thoroughly investigate and evaluate available evidence of Petitioner's psychosis; (2) failing to research or consult with any outside expert on the evidence that was uncovered; (3) failing to investigate or retain another expert on the results of the blood test of Petitioner which reported less than 10 nanograms per milliliter of methamphetamine in her blood; and (4) failing to make proper objections to preserve Petitioner's rights. (See Pet'r's Am. Pet. at p. 24.) On December 8, 2009, Respondent filed her answer which included an argument that Petitioner failed to exhaust Claim II and some of her claims within Claims I. (See Respt's Answer at p.17.)
On June 28, 2010, Petitioner filed her traverse. In that filing, Petitioner admitted that several of her claims in the amended habeas petition were unexhausted (See Pet'r's Traverse at p. 1-2 ("[P]petitioner admits that much of claim one remains unexhausted in the state courts, she has not yet filed an exhaustion petition therein as the investigation is not yet complete. Once it is, which should be soon, counsel fully intends to promptly file an appropriate exhaustion in the state court and request that this petition be stayed while the new claims are exhausted in state court."). On November 22, 2010 (the same day that this matter was transferred to the undersigned), Petitioner filed a "status report." (Dkt. No. 39.) In that "status report," Petitioner stated that the factual investigation on the new claims had been completed.
In light of Petitioner's admission in her traverse that several arguments within her amended habeas petition had not been exhausted*fn1 and her statement that she intended to exhaust those claims in state court and file a motion to stay and abey these federal habeas proceedings pending the outcome of the state habeas proceedings, Petitioner was ordered on January 4, 2011 to either file a motion to stay or abey or inform the court that she decided that she would not file a motion to stay and abey. On January 19, 2011, Petitioner filed another "status report." She stated, in part, that she would not file a motion to stay and abey "as there are no claims to be brought that have not already been fully exhausted in the state courts." In light of Petitioner's previous admission in her traverse that several claims contained in the amended federal habeas petition were not exhausted, the January 19, 2011 "status report" is confusing insofar as it may be interpreted to mean that the previously unexhausted arguments within the amended federal habeas petition have now been exhausted since the traverse was filed. However, the case file lacks any record in the form of petitions, responses, orders, opinions etc., from the state courts which indicate that these arguments should now be deemed exhausted.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner shall file corresponding petitions, responses, replies and orders/opinions filed in the state courts regarding Petitioner's unexhausted federal habeas claims as admitted by Petitioner in her traverse and contained in her amended federal habeas petition within twenty-one (21) days of this Order to the extent that they have not already been filed in this Court;
3. Should Petitioner not file these items within twenty-one (21) days of this Order, then within twenty-one (21) days, Petitioner shall either: (1) file a motion to stay and abey this federal habeas action pending exhaustion of the unexhausted claims in the state courts; (2) inform the court that she wishes to proceed only on exhausted claims within the federal habeas petition (in which case the Petitioner shall inform this Court which unexhausted claims should be deemed stricken from the amended habeas petition); or (3) inform the court that she wishes the court to proceed on her amended federal habeas petition as is.