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Shepard v. Gipson

United States District Court, E.D. California

February 6, 2014

MALCOLM SHEPARD, Petitioner,
v.
CONNIE GIPSON, Respondent.

FINDINGS AND RECOMMENDATION

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner who proceeds pro se and in forma pauperis on this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Pending before the court is petitioner's motion to stay and abey his petition (ECF No. 4), respondent's opposition (ECF No. 14), and petitioner's reply (ECF No. 16). For the reasons discussed below, the undersigned recommends that petitioner's motion for a stay be denied.

I. Procedural History

Petitioner was convicted of first degree felony murder and was sentenced to life without the possibility of parole plus a consecutive term of twenty-five years to life. His conviction was affirmed by the California Court of Appeal on September 10, 2009. Lodged Doc. No. 2. The California Supreme Court denied his petition for review on December 17, 2009. Lodged Doc. No. 4.

On August 11, 2010, petitioner filed a habeas corpus petition in the Sacramento Superior Court.[1] Lodged Doc. No. 5. This petition was denied in a reasoned opinion on October 19, 2010. Lodged Doc. No. 6. Over two years later, petitioner filed a habeas petition in the California Court of Appeal.[2] Lodged Doc. No. 7. This petition was summarily denied on February 17, 2013. Lodged Doc. No. 8. On April 10, 2013 petitioner filed a habeas petition in the California Supreme Court which was denied on June 12, 2013.[3] Lodged Doc. No. 11.

Petitioner then filed a request for the appointment of counsel to pursue postconviction DNA testing pursuant to California Penal Code § 1405 on or about June 28, 2013. See ECF No. 1 at 5; see also ECF No. 16 at 9 (conceding that petitioner did not pursue relief under California Penal Code § 1405 until 2013). The Sacramento Superior Court granted this request subject to the appropriation of funding on July 19, 2013. Lodged Doc. No. 12. On September 19, 2013, petitioner filed a writ of mandate in the California Court of Appeal challenging the Superior Court's order deferring the provision of postconviction counsel to pursue DNA testing until state funding was restored. Lodged Doc. No. 13. The petition for writ of mandate was denied on November 7, 2013. See California Appellate Courts Case Information Website, Third Appellate District, Case No. C074777, http://appellatecases.courtinfo.ca.gov/.

The present federal habeas corpus petition was filed on August 27, 2013 and raises four separate claims for relief. ECF No. 1. First, petitioner alleged that his trial counsel was ineffective for failing to investigate ballistics and fingerprint evidence and failing to conduct DNA testing on a gun shell case. ECF No. 1 at 4. In this claim petitioner alleges that he is actually innocent and that he was merely a witness to the shooting. Id . Petitioner also claims that his trial counsel was ineffective for failing to investigate and present third party culpability evidence. Id . In his last two claims for relief, petitioner challenged the sufficiency of the evidence to support the gun use enhancement and the felony murder special circumstance. ECF No. 1 at 5.

II. Motion for a Stay

On the same date that he filed his federal habeas application, petitioner filed a motion to stay and abey the petition pending the investigation and outcome of DNA testing authorized by California Penal Code § 1405. ECF No. 4 at 1. Petitioner asserts that this DNA testing is relevant to his claims of actual innocence and ineffective assistance of counsel. Id . The stay is requested pursuant to Rhines v. Weber , 544 U.S. 269 (2005). Id . at 4.

Respondent opposes petitioner's request, arguing that a stay is not appropriate because the petition is untimely filed as well as fully exhausted. ECF No. 14. And, even assuming that the petition is timely and that there are some potentially unexhausted and meritorious claims, a stay is unwarranted because petitioner unreasonably delayed in the investigation and presentation of his claims. Id . Respondent requests that the motion to stay and abey be denied, and that this court consider dismissing the federal petition with prejudice because it was untimely filed. ECF No. 14 at 31.

In his reply, petitioner concedes that his federal habeas petition is untimely filed, but requests equitable tolling based on his mental impairment, actual innocence, and lack of understanding of the law. ECF No. 16 at 5. If a stay is not granted, petitioner requests that the court hold a hearing on his requests for equitable tolling. Id . at 7.

V. Analysis

At the outset, it must be noted that the stay and abeyance procedure requested by petitioner is only authorized for petitions that contain exhausted and unexhausted claims.[4] Such a procedure is unnecessary here, however, because petitioner's claims have already been fairly presented to the California Supreme Court and are exhausted.[5] See Lodged Doc. Nos. 9, 10 (California Supreme Court habeas corpus petition and amended habeas corpus petition).

In the present case, there are two separate reasons to deny petitioner's motion for a stay. First and foremost, petitioner is not seeking a stay in order to return to state court to exhaust new claims for relief. Petitioner requests the court to stay his wholly exhausted habeas petition in order to complete "the investigation of DNA testing on evidence relevant to his claims of actual innocence and ineffective assistance of counsel." ECF No. 4 at 1. Thus, petitioner is merely trying to utilize the state DNA testing procedure to factually enhance his currently pending claims for relief. Petitioner concedes as much in his reply when he requests an evidentiary hearing on his ineffective assistance of counsel claims in this court in the event that his request for a stay is denied. See ECF No. 4 at 2-3. In this vein, petitioner is seeking to use either state DNA testing or an evidentiary hearing in federal court to obtain the evidence demonstrating his actual innocence. However, this court does not have the discretion to authorize an indefinite stay of federal habeas proceedings unless and until petitioner obtains actual DNA evidence proving his actual innocence. See Rhines v. Weber , 544 U.S. at 277 (emphasizing that a stay and abeyance "should be available only in limited circumstances"). The stay and abeyance procedure was created to allow habeas petitioners a fair chance at presenting all of their claims for relief. See Rhines , 544 U.S. at 275 ...


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