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Harmless v. Lazzaraga

United States District Court, E.D. California

June 12, 2014

HOWARD MARTIN HARMLESS, Petitioner,
v.
J. LAZZARAGA, Warden, Respondent.

ORDER

DALE A. DROZD, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to magistrate judge jurisdiction in this action all purposes, pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). (See ECF No. 4.) Pending before the court are petitioner's motions to proceed in forma pauperis and for a stay and abeyance of these proceedings pending exhaustion of his unexhausted claims in state court. For the reasons that follow, the court grants petitioner's motions.

I. Background

On January 23, 2014, petitioner filed his original federal petition for writ of habeas corpus, challenging his 2010 judgment of conviction, entered in the El Dorado County Superior Court, for furnishing marijuana to minors and lewd acts on a child, with sentencing enhancements based on prior convictions for child molestation. (ECF No. 1.)

On January 28, 2014, this court directed petitioner to file an amended petition for writ of habeas corpus that included his signature, as required by Rule 2 of the Rules Governing Section 2254 Cases, and accorded petitioner the opportunity to submit an application to proceed in forma pauperis or the appropriate filing fee.

On February 10, 2014, petitioner filed a motion to proceed in forma pauperis (ECF No. 7), the operative amended petition for writ of habeas corpus (ECF No. 6), and a motion to "stay and abey" his amended petition (ECF No. 5).

II. Application to Proceed In Forma Pauperis

Examination of the in forma pauperis application demonstrates that petitioner is unable to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

III. Amended Petition for Writ of Habeas Corpus[1]

The amended federal habeas petition before the court contains only one claim, described by petitioner as follows: "The trial court abused its discretion and prejudiced defendant's defense by admitting evidence of prior sex offenses as evidence for propensity evidence under Evidence Code § 1108." (ECF No. 6 at 3.) Petitioner alleges that this claim was fully exhausted in state court on direct review. See 28 U.S.C. § 2254(b)(1)(A) (exhaustion of state court remedies is a prerequisite to seeking federal habeas relief). Petitioner also states that he did not pursue collateral review on any of the claims set forth in his amended federal petition by way of state habeas petitions.[2]

It would appear that petitioner timely commenced this federal habeas action within the one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244(d). Specifically, this action was filed on January 23, 2014, within the one-year period after petitioner's judgment of conviction and sentence became final on April 23, 2013.[3] See 28 U.S.C. § 2244(d)(1)(A) (one-year limitations period commences with "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review").

IV. Motion to Stay and Abey

A. Petitioner's Motion

As noted, petitioner has filed a motion seeking to have his fully exhausted federal amended habeas petition stayed and these proceedings held in abeyance while he exhausts "approximately" four additional claims in state court. Citing the decision in Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003), petitioner states that his goal is to further amend his federal petition to include these additional claims once they are exhausted in state court. However, petitioner also reports that he has not yet obtained his case file from his state appellate counsel, and may need to "seek judicial intervention from the lower courts to compel counsel to send me ...


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