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Girley v. Swarthout

United States District Court, Ninth Circuit

October 11, 2013

DOUGLAS DWAYNE GIRLEY, Petitioner,
v.
GARY SWARTHOUT, Respondent.

FINDINGS & RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner proceeding without counsel. On August 30, 2013, petitioner filed a motion to amend the petition to add unexhausted claims, and to stay the decision on his petition for writ of habeas corpus pending exhaustion of his new claims in state court. Respondent opposes the motion on the grounds that the new claims are untimely, and fail to relate back to any of petitioner's original claims. As discussed below, the court recommends that petitioner's motions for stay and to amend be denied.

II. Background

On June 25, 2009, petitioner was convicted of attempted murder, inflicting corporal injury on a spouse, and assault by force likely to produce great bodily injury. On July 20, 2009, petitioner was sentenced to an indeterminate sentence of twenty-four years to life.

Petitioner filed a timely appeal, and on February 15, 2011, the California Court of Appeal modified the judgment by adding a five year enhancement and thirty-two days of presentence conduct credits and ordered the abstract of judgment be amended accordingly. (Respondent's Lodged Documents ("LD") 2.) Petitioner filed a petition for review in the California Supreme Court, which was denied on April 20, 2011. (LD 3-4.)

Petitioner did not file any collateral challenges in state court as to the claims raised in the original petition. (ECF No. 12 at 2.)

Under the mailbox rule, petitioner's federal petition is deemed filed on July 11, 2012. See Houston v. Lack , 487 U.S. 266, 275-76 (1988) (pro se prisoner filing is dated from the date prisoner delivers it to prison authorities).

The original petition raises two claims for relief: (1) the trial court should have conducted a second competency hearing; and (2) the trial court violated petitioner's constitutional rights when the court removed him from the courtroom due to petitioner's disorderly conduct. (ECF No. 1 at 6-7.)

On August 9, 2013, respondent filed an answer to the petition. (ECF No. 28.)

On or about August 18, 2013, petitioner filed a state habeas petition in the San Joaquin County Superior Court. (ECF No. 31 at 6.)

On August 30, 2013, petitioner filed a request to stay the petition. Petitioner seeks to return to state court to exhaust new and unexhausted claims, the precise nature of which are unclear. Petitioner does not describe his claims in his motion, but appends what appears to be a copy of his state habeas petition filed in the San Joaquin County Superior Court. (ECF No. 31 at 6-12.)

On September 12, 2013, respondent filed an opposition, arguing that the new claims are untimely, and fail to relate back to any of petitioner's original claims. Respondent construes petitioner's claims as ineffective assistance of trial counsel at the preliminary hearing, and a claim that there was insufficient evidence presented at the preliminary ...


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