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Charlie Chong Thao v. Swarthout

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 21, 2011

CHARLIE CHONG THAO, PETITIONER,
v.
SWARTHOUT, WARDEN, RESPONDENT.

ORDER

On June 27, 2011, the undersigned issued findings and recommendations recommending that certain of petitioner's claims for federal habeas relief be dismissed due to his failure to exhaust those claims in state court and that all of petitioner's remaining claims be denied on the merits. (Doc. No. 30.) Upon further review of the docket, the undersigned notes that, on December 28, 2009, the same day on which he filed the original petition in this action, petitioner filed a motion for stay and abeyance pursuant to the decision in Rhines v. Weber, 544 U.S. 269 (2005). (See Doc. No. 3.) Therein, petitioner sought a stay in order to exhaust state remedies "on all unexhausted claims."*fn1 (Doc. No. 3 at 2.) However, it was not clear from petitioner's motion whether he sought to stay his ineffective assistance of trial and appellate counsel claims in their entirety; or whether he sought to stay unspecified sub-claims within those claims. (See Doc. No. 1.) At any rate, petitioner referenced his concurrently-filed petition to show that his claims potentially had merit pursuant to the three-part test in Rhines. (Doc. No. 3 at 1.)

Neither the court nor respondent explicitly addressed petitioner's Rhines motion. Nonetheless, as recounted in the procedural history section of this court's recently filed findings and recommendations*fn2 , petitioner proceeded to litigate his request for a writ of habeas corpus in the state courts, culminating in the California Supreme Court's denial of his state habeas petition on October 13, 2010. On December 7, 2010, petitioner filed his First Amended Petition (FAP) in this action; and on January 13, 2011, the undersigned ordered a response to the FAP. (See Doc. No. 30 at 2-3.) In sum, between his filing of a Rhines motion in December 2009 and his filing of the FAP in December 2010, petitioner completed a full round of habeas review in the state courts and had the opportunity to exhaust any of his unexhausted claims. Thus, by the time he filed the FAP, his Rhines motion had been rendered moot.

Moreover, it is clear from this court's October 6, 2010 screening order dismissing petitioner's original petition with leave to amend, that petitioner's ineffective assistance claims did not meet the "potential merit" test required for a stay pursuant to the decision in Rhines. In that order, the undersigned stated: "In this cursory habeas petition, petitioner simply claims that his counsel at both the trial and appellate levels rendered ineffective assistance. [Petitioner] does not allege any specific facts as to what aspects of his counsels' performance he seeks to challenge in this action. Accordingly, at this time, the court is unable to determine whether plaintiff is entitled to relief." (Doc. 13 at 1-2.) Thus the court may be said to have implicitly rejected petitioner's Rhines motion, which in any event was moot by the time he filed the FAP.

For the foregoing reasons, IT IS HEREBY ORDERED that petitioner's December 28, 2009 motion for stay and abeyance (Doc. No. 3) is denied as moot.


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