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Paul Gordon Whitmore v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


August 4, 2011

PAUL GORDON WHITMORE,
PETITIONER,
v.
MATTHEW CATE, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; [Doc. No. 51] OVERRULING PETITIONER'S OBJECTIONS; [Doc. No. 52] DENYING MOTION TO INCLUDE GROUNDS FOR RELIEF PREVIOUSLY ABANDONED [Doc. No. 46]

On May 26, 2009, Petitioner Paul Gordon Whitmore, a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] On July 14, 2009, the Court notified Petitioner that some of his claims may be subject to dismissal for failure to exhaust his state remedies. [Doc. No. 12.]

On November 2, 2009, Petitioner filed a "Motion to Revisit Prima Facie, Amend Petition and Enlarge Time Limit for Traverse." [Doc. No. 23.] Therein, Petitioner requested, inter alia, the Court to reconsider whether claims 5 and 6 are exhausted. [Id. at p.3.] Petitioner indicated that if the Court still considers claims 5 and 6 unexhausted, he will ask the Court to dismiss these claims without prejudice. [Id.] On November 4, 2009, the Court issued an order indicating it received Petitioner's motion to "revisit prima facie" the same day the Court issued a detailed Notice regarding Petitioner's likely failure to exhaust claims 4, 5 and 6. [Doc. No. 26, p.2.] The Court indicated that the Notice set forth Petitioner's options as to the unexhausted claims, and directed Petitioner to review the Notice and respond accordingly. [Id.]

Specifically, the Court's November 3, 2009 Notice to Petitioner [Doc. No. 21] indicated that three of his claims-numbers 4, 5 and 6-were not exhausted. The Court advised Petitioner he had four options: (1) Petitioner could file additional papers with the Court demonstrating the claims had been exhausted; (2) Petitioner could voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims; (3) Petitioner could formally abandon his unexhausted claims and proceed only on those properly exhausted; or (4) Petitioner could file a motion to stay his federal petition while he returned to state court to exhaust claims 4, 5 and 6. [Doc. No. 21, p.2-4.] With respect to the third option, the Court cautioned Petitioner that if he abandons the unexhausted claims, he may lose the ability to ever raise them in federal court. The Court further advised Petitioner, that if he chose the fourth option, Petitioner could proceed one of two ways. First, Petitioner could ask the Court to stay his mixed petition while he returned to state court to exhaust claims 4, 5 and 6, or he could voluntarily withdraw his unexhausted claims and request the Court to stay his fully-exhausted petition while he returns to state court to exhaust, and then seek permission to amend his petition to include the newly exhausted claims after exhaustion is complete.

On December 14, 2009, Petitioner responded to the Court's Notice by filing a "Motion to Dismiss Claim Nos. 5 and 6 and to Ask for Clarification as to Claim No. 4." [Doc. No. 31.] In his motion, Petitioner asked the Court to "dismiss and abandon his claims numbers [sic] 5 and 6." [Id. at p.1.] Petitioner stated he "considered each of the options the Court noted in the Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies. Petitioner understands the potential consequences of this motion. Petitioner requests a dismissal without prejudice." [Id. a p.2.] On December 21, 2009, the Court granted Petitioner's motion to dismiss unexhausted claims 5 and 6. [Doc. No. 32.]

On January 19, 2010, Petitioner filed a "Motion to Stay and Abeyance Regarding Grounds 4." [Doc. No. 34.] The Court granted Petitioner's motion to stay his federal action while he proceeded in state court to exhaust claim 4. [Doc. No. 35.] On September 1, 2010, Petitioner filed the pending motion to include his previously abandoned claims 5 and 6 in his original petition. [Doc. No. 46.] Petitioner asserts the Court dismissed these claims without prejudice, and argues that including them now does not constitute a successive petition because the Court did not rule on the merits of the claims. [Id.] Respondent opposed Petitioner's motion on October 1, 2010. [Doc. No. 47.] Petitioner's motion was referred to United States Magistrate Judge William V. Gallo for preparation of a Report and Recommendation under 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d). On April 29, 2011, this case was transferred to United States Magistrate Judge Mitchell D. Dembin. [Doc. No. 50.]

Judge Dembin issued a well-reasoned and thorough Report recommending that Petitioner's motion to include previously abandoned claims 5 and 6 be denied. [Doc. No. 51.] Petitioner timely filed objections, challenging the findings and conclusions of law set forth in the Report and Recommendation. [Doc. No. 52.] Respondent did not file an objection to the Report, nor a response to Petitioner's objections.

Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Here, Petitioner objects to the entirety of the Report. [Doc. No. 52.] Primarily, Petitioner asserts his entire petition was stayed while he exhausted his state court remedies, and Judge Dembin failed to view the grounds raised in claims 5 and 6 as sentencing errors which may be corrected at any time. [Id.] The Court has considered the merits of each of Petitioner's objections. With respect to Petitioner's objections to the findings of fact detailed in the Report, the Court overrules the objections, as they are amply supported by the record. While petitioner is correct that the entire petition was stayed while he exhausted his claims in state court, by the time the Court entered the stay on February 2, 2010, the Court had already granted Petitioner's motion to dismiss claims 5 and 6 on December 21, 2009.

Petitioner voluntarily chose to abandon claims 5 and 6, expressly acknowledging he understood the consequences of his decision. [Doc. No. 31.] Petitioner has not identified any ground for the Court to allow him to amend his petition to include these previously abandoned and time-barred claims. Petitioner's objections to the conclusions of law are similarly without merit, and are therefore, overruled. Judge Dembin identified the correct legal standards, applied each standard correctly, considered relevant case law, and reached sound conclusions that this Court has no reason to reject.

Having reviewed the Report and Recommendation and the files and records herein, the Court ADOPTS the Report and Recommendation in its entirety. Accordingly, the Court DENIES Petitioner's motion to reinstate previously abandoned claims 5 and 6. [Doc. No. 46.]

IT IS SO ORDERED.

20110804

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