The opinion of the court was delivered by: Ruben B. Brooks, Magistrate Judge United States District Court
ORDER DENYING MOTION FOR STAY AND ABEYANCE [ECF NO. 8]
Petitioner Deshawn Broadnax, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus on March 5, 2012 [ECF Nos. 1, 7]. On March 9, 2012, the district court dismissed the Petition but gave Broadnax until May 15, 2012, to file a first amended petition. (Order 3, Mar. 9, 2012, ECF No. 3.) On March 22, 2012, Petitioner filed a "Notice Regarding an Extension of Time in Which to File Petition for Writ of Habeas Corpus in State Court" [ECF No. 8]. Broadnax maintains that he has begun to identify "Potential Issues" and requests time "To Complete [his] Review Of The Issues, Ensure The Issues [are] Complete, Identify/Research Issues, And Write Petition for Writ of Habeas Corpus in the State Court." (Notice Regarding Extension Time 1, ECF No. 8.) The Court construed this as a motion to stay and abey any subsequently filed first amended federal petition. (Mins., Mar. 29, 2012, ECF No. 9.)
Broadnax later submitted a First Amended Petition, which was filed nunc pro tunc to May 7, 2012 [ECF No. 16]. There, he contests his convictions for attempted intimidation of a witness, inducing a witness to give false information about a crime, and two counts of first-degree murder. (See First Am. Pet. 6-7, 27-28, 38-39, 44, 51-52, ECF No. 16.)*fn1 Petitioner challenges these convictions on several bases, including, in ground one, the adequacy of the jury instructions used at trial. (Id. at 6-7.) In ground two, he contests the denial of his motion for a new trial. (Id. at 27-28.) And in ground three, Broadnax disputes the sufficiency of the evidence supporting his conviction for dissuading a witness and, alternatively, contends that the trial court erred in omitting an element of that offense. (Id. at 38-39, 44.)
Respondent filed an "Answer to the Petition for Writ of Habeas Corpus" on July 2, 2012, along with a memorandum of points and authorities and a notice of lodgment [ECF No. 21]. On July 17, 2012, Cate filed an "Amended Answer to First Amended Petition for Writ of Habeas Corpus" [ECF No. 23].
Broadnax later filed a "Motion and Declaration for Appointment of Counsel," which was filed nunc pro tunc to May 24, 2012 [ECF No. 20]. In that motion, Petitioner clarified that the new claims he seeks to exhaust in state court are for ineffective assistance of counsel and prosecutorial misconduct. (Mot. & Decl. Appointment Counsel 1, ECF No. 20.) That motion was denied on August 6, 2012, (ECF No. 24); nevertheless, the Court will take judicial notice of statements made by Broadnax in the motion and accompanying declaration. See Fed. R. Evid. 201(b).
On September 12, 2012, Cate filed an "Opposition to Motion for Stay and Abeyance of First Amended Petition for Writ of Habeas Corpus" [ECF No. 28]. Respondent argues that Broadnax is not entitled to a stay because he did not submit a mixed petition; the statute of limitations has run; and the new claims do not "relate back" to the timely claims in the pending First Amended Petition. (Opp'n Mot. Stay & Abey 4-6, ECF No. 28.) Petitioner did not file any reply memorandum.
As a preliminary matter, the Court must consider whether a motion to stay is a dispositive or nondispositive motion, respectively meriting either a report and recommendation or an order. "Although granting or denying a stay may be an important step in the life of a case . . . a stay order is merely suspensory. Even if such a motion is granted, the court still retains authority to dissolve the stay . . . ." PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir. 2010) (stay pending arbitration). The court in PowerShare concluded that a motion to stay is nondispositive. See id.; see also Apple, Inc. v. Samsung Elecs. Co., Ltd., No. 12-cv-00630-LHK, 2012 WL 2936432, at *1-2 (N.D. Cal. July 18, 2012) (noting that a motion to stay preliminary injunction pending appeal was nondispositive); Young v. Cnty. of Hawaii, Civil No. 11-00580 ACK-RLP, 2012 WL 2366016, at *8 n.13 (D. Haw. June 19, 2012) (treating motion to stay pending arbitration as nondispositive); Lovell v. United Airlines, Inc., 728 F. Supp. 2d 1096, 1100 (D. Haw. 2010) (reviewing, as nondispositive, order denying motion to stay pending resolution of an earlier-filed class action); Sylvester v. Menu Foods, Inc., No. 07-00409 ACK-KSC, 2007 WL 4291024, at *3 (D. Haw. Dec. 5, 2007) (reviewing order on motion to stay under standard used for dispositive motions because it was "inextricably intertwined" with ruling on motion to remand, which some courts treat as a dispositive motion).
Other courts that have considered a motion to stay and abey have resolved the motion with an order. See also Stamps v. Cate, No. 11--cv--2048--LAB (WMc), 2012 WL 3076408, at *4 (S.D. Cal. July 30, 2012) (issuing order on habeas petitioner's motion to stay); Chau v. Uribe, No. 11cv136 AJB (PCL), 2011 WL 1544809, at *1 (S.D. Cal. Apr. 19, 2011) (same). But see Gohel v. Ryan, CV-10-0001-PHX-FJM (JRI), 2011 WL 5331716, at *1 (D. Ariz. Sept. 15, 2011) ("Because the resolution of [the motion to stay] would effectively be dispositive of the affected claims [for habeas relief], the undersigned makes the following proposed findings of fact, report, and recommendation . . . ."). Figueroa v. Lea, No. 10--CV--2274 MMA (JMA), 2011 WL 4403977, at *5 (S.D. Cal. Aug. 12, 2012) (submitting report and recommendation on motion to stay without discussing whether motion was dispositive); Orozco v. Silva, No. 11cv2663--AJB (BLM), 2012 WL 1898793, at *6 (S.D. Cal. Jan. 30, 2012) (same).
In his March 22, 2012 filing, Broadnax first indicated that he intended to bring new claims for habeas relief in state court [ECF No. 8]. Since that time, he has had ample time to do so. In the interim, the fully exhausted claims alleged in his federal Petition remain pending. Exhausting new claims for habeas relief in the state courts is a prerequisite to asserting them in a petition for writ of habeas corpus in the federal courts. See Rhines v. Weber, 544 U.S. 269, 273-74 (2005). Nevertheless, § 2254(b)(2) authorizes the Court to deny a claim for habeas relief on the merits although it has not been exhausted. See 28 U.S.C.A. § 2254(b)(2) (West 2006). An order denying a motion to stay a federal petition is qualitatively different from an order dismissing an unexhausted claim on the merits.
Broadnax's motion to stay his fully exhausted federal habeas Petition does not dispose of "new" claims he plans to raise in state court. Those claims will proceed. If Petitioner does not obtain relief from the California courts on claims grounded in federal law, he will attempt to amend his federal Petition and pursue the additional claims here. Broadnax's expectation is that he will return to federal court. Thus, a motion to stay and abey is not dispositive of claims that have not been alleged in his federal Petition.
A motion to stay in order to exhaust habeas claims in state court should be treated like a motion to remand, which "is more logically viewed as non-dispositive because it does not dispose of a 'claim' . . . ." 14 James Wm. Moore et al., Moore's Federal Practice § 72.02, at 72-10.1 (3d ed. 2012) (discussing motions to remand). "All of the claims and defenses proceed in state court after remand, and use of a federal forum is neither a claim nor a defense." Id. This Court concludes that motions to stay and abey are nondispositive and will issue an order ruling on Petitioner's motion.
The Court finds Broadnax's motion suitable for resolution on the papers. See S.D. Cal. Civ. R. 7.1(d)(1). The Court has reviewed the First Amended Petition, Petitioner's "Notice Regarding an Extension of Time in Which to File Petition for Writ of Habeas Corpus in State Court" ("Motion to Stay"), his Motion for Appointment of Counsel, Cate's Opposition, and the lodgments. For the reasons discussed below, Broadnax's Motion to Stay [ECF No. 8] is DENIED.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 19, 2008, in the Superior Court of California, County of San Diego, a jury convicted Broadnax of dissuading a witness from testifying, attempted witness intimidation, and two counts of first-degree murder. (Lodgment No. 1, Clerk's Tr. vol. 3, 621-27, Dec. 19, 2008.) The jury concluded that Petitioner committed these crimes for the benefit of a criminal street gang; he was a principal in the murders; and he used a firearm causing death. (Id. at 621, 623, 626-27.) They also found that Broadnax was an active participant of a criminal street gang when he committed the murders, which qualified as a special circumstance. (Id. at 622, 624.) On February 19, 2009, Petitioner was sentenced to two life sentences without the possibility of parole plus fifty-seven years to life. (Id. at 560-63, 629.)
On October 2, 2009, Broadnax appealed the convictions; they were affirmed by Division One of the California Court of Appeal, Fourth Appellate District, on August 20, 2010. (See Lodgment No. 3, Appellant's Opening Brief, People v. Broadnax, No. D054634 (Cal. Ct. App. Aug. 20, 2010); Lodgment No. 6, People v. Broadnax, No. D054634, slip op. at 1, 14 (Cal. Ct. App. Aug. 20, 2010).) Broadnax petitioned the California Supreme Court for review on September 30, 2010. (Lodgment No. 7, Petition for Review, People v. Broadnax, No. SD2009701437 (Cal. Dec. 15, 2010).) The California Supreme Court denied the petition without opinion. (Lodgment No. 8, People v. Broadnax, No. S186803, order at 1 (Cal. Dec. 15, 2010.) Petitioner then filed a Petition for Writ of Habeas Corpus in this Court on March 5, 2012 [ECF No. 1], and submitted a First Amended Petition, which was filed nunc pro tunc to May 7, 2012 [ECF No. 16].
II. LEGAL STANDARD FOR EXHAUSTION
Before a federal court may grant habeas relief on a claim, a petitioner must exhaust all available state judicial remedies. 28 U.S.C.A. § 2254(b)(1)(A) (West 2006); Rhines v. Weber, 544 U.S. at 273-74 (referring to total exhaustion requirement of Rose v. Lundy, 455 U.S. 509, 522 (1982), abrogated on other grounds by Rhines, 544 U.S. 269). A claim is exhausted only when a petitioner has fairly presented it to the state courts. Duncan v. Henry, 513 U.S. 364, 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). To meet the fair presentation requirement, the petitioner must "alert the state courts to the fact that he [is] asserting a claim under the United States Constitution." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365-66). The petitioner must "provide the state courts with a 'fair opportunity' to apply controlling legal principles to the facts bearing upon his constitutional claim." Anderson v. Harless, 459 U.S. 4, 6 (1982) (citing Picard, 404 U.S. at 276-77).
By giving state courts the "'opportunity to pass upon and correct' alleged violations of its prisoners' federal rights," comity is promoted, and disruption of state judicial proceedings is prevented. Duncan, 513 U.S. at 365 (quoting Picard, 404 U.S. at 275); see also Rose, 455 U.S. at 518; Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005).
Constitutional claims raised in federal proceedings must be presented to the state courts first. Baldwin v. Reese, 541 U.S. 27, 31-32 (2004). The highest state court must have an opportunity to consider the factual and legal bases of a petitioner's claims before they are presented to the federal court. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Picard, 404 U.S. at 276; Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)); see also Duncan, 513 U.S. at 365; Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 2008). A claim is not exhausted if it is pending before the state's highest court. See Rose, 455 U.S. at 515 ("[A]s a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act . . . ."); Anderson v. Morrow, 371 F.3d 1027, 1036 (9th Cir. 2004) ("AEDPA's exhaustion requirement entitles a state to pass on a prisoner's federal claims before the federal courts do so."). "It follows, of course, that once the federal claim has been fairly presented to the state courts, the exhaustion requirement is satisfied." Picard, 404 U.S. at 275.
Courts may deny an application for habeas relief on the merits even if the petitioner has not yet exhausted his state judicial remedies. 28 U.S.C.A. § 2254(b)(2). But courts have no authority to grant relief on unexhausted claims. Id. § 2254(b)(1)(A).
A. Whether the First Amended Petition is a ...