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Brannigan v. Barnes

United States District Court, E.D. California

July 11, 2014

JASON R. BRANNIGAN, Petitioner,
v.
R.E. BARNES, Respondent.

FINDINGS AND RECOMMENDATION

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro se and in forma pauperis in this federal habeas corpus action 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 are petitioner's motions to stay and abey his petition, ECF Nos. 11, 27, which are opposed by respondent, ECF Nos. 16, 28.[1] For the reasons discussed below, the undersigned recommends denying petitioner's motions for a stay.

I. Factual and Procedural Background

On January 18, 2011, a Sacramento County jury convicted petitioner of corporal injury to a spouse or cohabitant, two counts of making criminal threats, false imprisonment, and felony vandalism. See Lodged Doc. No. 3 (Petition for Review filed in the California Supreme Court). The jury also found petitioner guilty of two counts of misdemeanor child endangerment, the lesser included offense of the felony child abuse counts with which he was charged. Id . On February 15, 2011, the trial court sentenced petitioner to a total term of eighteen years and eight months in prison. See Lodged Doc. No. 1 (Abstract of Judgment).

The California Court of Appeal affirmed the convictions in an opinion issued on May 22, 2012. See Lodged Doc. No. 2 (direct appeal opinion). Petitioner filed a petition for review in the California Supreme Court which was denied on August 29, 2012. See Lodged Doc. Nos. 3, 4.

Petitioner commenced the present action on October 9, 2013 by filing a petition for writ of habeas corpus.[2] ECF No. 7. Based on information contained in the petition, this court ordered petitioner to file a formal motion to stay the instant federal habeas proceedings and to specify whether he was seeking a stay pursuant to Rhines v. Weber , 544 U.S. 269 (1995), or Kelly v. Small , 315 F.3d 1063 (9th Cir.), cert. denied, 538 U.S. 1042 (2003), overruled on other grounds by Robbins v. Carey , 481 F.3d 1143 (9th Cir. 2007). ECF No. 10. Petitioner filed a formal motion for a stay on December 6, 2013. ECF No. 11. Respondent opposed the motion on March 17, 2014. ECF No. 16.

On April 2, 2014 this court ordered petitioner to file a supplemental motion for a stay by specifying what efforts, if any, he has taken to exhaust his ineffective assistance of counsel claims in state court and by identifying the specific time period during which he was housed in administrative segregation. ECF No. 18 at 1-2. On May 19, 2014, petitioner complied with the court's order and filed a supplemental motion for a stay. ECF No. 27. That motion was not entered on the court's docket until May 21, 2014, after the court had already sua sponte granted petitioner one last extension of time to comply. ECF No. 26. Respondent filed a supplemental opposition on May 22, 2014. ECF No. 28. Accordingly, the motions to stay the pending federal habeas petition have been fully briefed.

II. Original Motion for a Stay

In his motion filed on December 6, 2013, petitioner requests a stay pursuant to Rhines v. Weber , 544 U.S. 269 (1995). ECF No. 11 at 1. In a very conclusory fashion, petitioner asserts that he "had good cause for his failure to exhaust any unexhausted claims, his unexhausted claims are potentially meritorious, and he never engaged in intentionally dilatory tactics." Id.

III. Opposition to Original Motion for a Stay

In opposition, respondent contends that petitioner has failed to demonstrate good cause for a stay and that his mixed petition should be dismissed. ECF No. 16 at 1. In reviewing the claims in the federal habeas petition, respondent concedes that petitioner's first claim is properly exhausted. Id. at 4. However, the remaining nine claims have never been presented to any state court. Id . Respondent argues, without any citation to authority, that "[p]etitioner should be precluded from proceeding on his lone exhausted claim [and] [f]ull dismissal of the [entire] petition is not unreasonable." Id. at 5.

IV. Supplemental Motion for a Stay

In response to the court's order to provide further information concerning the dates he was in administrative segregation and what efforts he has taken to exhaust his ineffective assistance of counsel claims, petitioner focuses on the former and fails to provide any information pertaining to the latter. Petitioner indicates that he arrived at High Desert State Prison ("HDSP") and was placed in administrative segregation on March 7, 2011. ECF No. 27 at 2. He was not transferred to the C Yard in general population until April 20, 2012. Id. at 3. Attached to petitioner's supplemental motion are numerous copies of 602 appeal forms dating from 2011 through 2013 in which petitioner complained to prison staff about his lack of access to the law library, the confiscation of his legal documents and materials, and the repeated denial of priority legal user status. See ECF Nos. 27-1, 27-2. Petitioner also ...


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