United States District Court, E.D. California
JERRY F. STANLEY, Petitioner,
WARDEN, San Quentin State Prison, Respondent.
ORDER & FINDINGS & RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Respondent's October 17, 2014 Motion to Dismiss and petitioner's October 24, 2014 Motion for Order Authorizing Subpoena Duces Tecum have been submitted. This court previously found that both motions could be resolved without argument. (ECF No. 961.) Each is addressed below.
The present case involves petitioner's 1983 conviction and death sentence for the 1980 murder of his wife. The crimes occurred in Lake County but venue was transferred and the case was tried in Butte County. In 1995, the California Supreme Court denied petitioner's appeal. People v. Stanley, 10 Cal.4th 764 (1995). In 2002, the California Supreme Court denied petitioner's request for state habeas corpus relief.
Petitioner filed a petition for writ of habeas corpus with this court in 1995. In 2008, this court denied all guilt phase issues, a ruling which was affirmed by the Ninth Circuit Court of Appeals in Stanley v. Cullen, 633 F.3d 852 (9th Cir. 2011). The remaining claims involve a competency proceeding held during the penalty phase, and the penalty phase. In March 2008, this court held that one of the jurors who found petitioner competent to proceed with the penalty phase committed misconduct. (ECF Nos. 817, 842.) The federal proceeding was stayed at that time to permit the state court to determine whether a retrospective competency proceeding was feasible, and, if it was, to hold one. Thereafter, respondent petitioned the Butte County Superior Court for a determination of the feasibility of a retrospective competency hearing. Petitioner was appointed a local attorney, Dennis Hoptowit. However, he petitioned the court for a substitution of counsel. First, he requested appointment of attorney Mark Olive, who represents petitioner in this federal proceeding. After a judge denied that request, petitioner abandoned it and sought appointment of Jack Leavitt. The court denied the request for appointment of Leavitt. The judge noted that petitioner's attempts to have Leavitt appointed were "manipulative" and "disruptive." (ECF No. 945-1 at 6-7.) In 2011, a Butte County Superior Court judge held that a retrospective competency proceeding was feasible and transferred the case to Lake County for the hearing.
In Lake County, Mr. Leavitt filed a "Notice of Appearance of Retained Attorney." (ECF No. 945-1 at 13.) In his petition to be appointed, Leavitt informed the court that petitioner wanted to stipulate to his competency at the time of the penalty phase. (Id. at 14.) After a hearing, the court appointed Leavitt to represent petitioner for the retrospective competency proceeding. The competency proceeding was held in September 2011. On September 30, 2011, the judge found petitioner had been competent at the time of the penalty phase. (Id. at 39.)
In April 2012, respondent filed a status report in this federal proceeding stating that the state proceedings had concluded because petitioner had failed to appeal the state superior court judge's determination. Respondent essentially argued that any challenges petitioner might have regarding the validity of the state court's retrospective competency determination were unexhausted and could not be raised in this federal proceeding. (ECF No. 885.) Respondent asked the court to proceed to resolve the penalty phase claims. Petitioner responded with a lengthy attack on the legitimacy of the state court's determination of feasibility and of competency. (ECF No. 887.) That document included a "non-exhaustive" list of potential challenges to those proceedings. (Id. at 19-20.)
After a May 2012 status conference, the court ordered the parties to file briefs regarding the necessity of exhausting the challenges to the feasibility and retrospective competency determinations. (ECF Nos. 889, 890.) The court subsequently held that those issues must be exhausted in state court before they may be considered here. (ECF Nos. 897, 903.) In addition, the court ruled that the potential challenges to the feasibility and retrospective competency proceedings which petitioner listed in his status report would be considered timely filed and the federal proceedings should be stayed and held in abeyance pending exhaustion. (ECF No. 897 at 9.) Petitioner appealed that ruling. In August 2014, the Ninth Circuit held that it did not have jurisdiction to consider petitioner's interlocutory appeal and dismissed it. (ECF No. 931.)
After receiving status reports from the parties, this court ordered them to brief any motions they sought to make before returning to state court. (ECF Nos. 936, 939.) In addition, in early October 2014, the court ordered all pro se submissions by petitioner to be placed on the docket and disregarded. (ECF No. 940.) The court noted that it had received one submission from attorney Jack Leavitt and barred Leavitt from filing anything further in this case. Mr. Leavitt's filing was ordered removed from the docket.
On October 17, respondent filed the present motion to dismiss. (ECF No. 942.) Petitioner opposes the motion. (ECF No. 957.) Respondent did not file a reply brief. On October 24, petitioner filed the present motion for discovery. (ECF No. 945.) Respondent filed no opposition. Petitioner filed two additional documents on October 24. First, he moves for sanctions against attorney Jack Leavitt. (ECF No. 947). Second, he seeks respondent's compliance with Local Rule 191 regarding the state court record of the feasibility and retrospective competency proceedings. (ECF NO. 946.) The court ordered a response from Mr. Leavitt to the sanctions motion and respondent's assistance with collection of the state court record. (ECF Nos. 948, 949.) The sanctions motion is set to be heard on December 10, 2014. (ECF No. 962.)
RESPONDENT'S MOTION TO DISMISS
Respondent seeks to dismiss the federal petition as "mixed" because it contains both exhausted and unexhausted claims. As described above, the issues about the state's feasibility and retrospective competency proceedings which petitioner raised in his May 2012 status report (ECF No. 887), were deemed timely filed in Findings and Recommendations made by Judge Hollows, the previously assigned magistrate judge. (ECF No. 897.) Judge Hollows also found that exhaustion of the feasibility and competency determinations was required and recommended stay/abeyance of this federal proceeding pending exhaustion. Respondent did not object to those Findings and Recommendations. The district judge adopted them in full in April 2013. (ECF No. 903.)
Respondent first argues this court abused its discretion in granting a stay. Respondent's extremely belated attempt to challenge the 2013 ruling is not well taken. Respondent had an opportunity to challenge the stay by objecting to the Findings and Recommendations. He did not do so.
Respondent's additional argument that petitioner's counsel is engaging in intentional delay is not supported. First, it should be noted that neither this court nor the Court of Appeals gave petitioner a deadline for filing an exhaustion petition with the state court. Further, a history of recent proceedings in this case demonstrates that ...