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White v. Davey

United States District Court, E.D. California

February 10, 2015

ANDREW L. WHITE, Petitioner,
DAVE DAVEY, Respondent.


EDMUND F. BRENNAN, Magistrate Judge.

Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has filed a motion to stay the proceedings, ECF No. 10, and a motion to amend his petition, ECF No. 20. Respondent filed a response to petitioner's motion to stay. ECF No. 14. For the reasons that follow, petitioner's motion to stay the proceedings (ECF No. 10) is denied; construed as a motion to amend his petition, however, the motion is granted with respect to petitioner's prosecutorial misconduct claim but denied as to his Fourth Amendment and ineffective assistance of counsel claims. Petitioner's motion to amend (ECF No. 20) is denied.


A jury convicted petitioner of five counts of robbery, false imprisonment, evading a police officer, and weapon enhancements. ECF No. 1 at 2; ECF No. 23 at 2.[1] On June 25, 2010, a Sacramento County Superior Court judge sentenced petitioner to twenty-six years and eight months in state prison. ECF No. 1 at 2. Petitioner subsequently appealed to the California Court of Appeal for the Third Appellate District ("Court of Appeal") and filed a petition for review in the California Supreme Court. Id. at 3, 5.[2] Petitioner did not file any state habeas petitions with respect to his 2010 conviction. Id. at 4.

Petitioner filed a federal habeas petition on June 13, 2014. ECF No. 1. His petition raises three claims: (1) he was denied the right to confront and cross examine an "accuser" in violation of the Sixth Amendment; (2) he was denied his Fourteenth Amendment right to a fair trial because photographs that should have been excluded under California Evidence Code section 352 were admitted and used against him; and (3) the trial court judge erred in ruling that the prosecutor had used due diligence in attempting to procure the attendance of a "victim/witness" at petitioner's trial. Id. at 7-8. Petitioner's motion to stay identifies three additional claims, ECF No. 10, and his motion to amend identifies one additional claim, ECF No. 20.


A state prisoner must exhaust available state remedies before a federal habeas court will consider his claim. See 28 U.S.C. § 2254(b)(1)(A); see also Rose v. Lundy, 455 U.S. 509, 520 (1982) ("Our interpretation of §[] 2254(b)[] provides a simple and clear instruction to potential litigants: before you bring any claims to federal court, be sure that you first have taken each one to state court."). This "exhaustion requirement" is met "once the federal claim has been fairly presented to the state courts." Picard v. Connor, 404 U.S. 270, 275 (1971).

A petition containing both exhausted and unexhausted claims is referred to as a "mixed" petition. Rhines v. Weber, 544 U.S. 269, 271 (2005). In Rhines, the United States Supreme Court addressed "whether a federal district court has discretion to stay [a] mixed petition to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then to return to federal court for review of his perfected petition." Id. at 271-72. Here, petitioner seeks a stay pursuant to Rhines. See ECF No. 10 at 3. His petition, however, is not a "mixed" petition, as it contains only exhausted claims. See id. at 2 (stating the pending federal petition is "a plagiarized version" of the brief he filed in the Court of Appeal and the petition in he filed in the California Supreme Court). Thus, a stay pursuant to Rhines is not appropriate. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (explaining that " Rhines applies to stays of mixed petitions"-not "fully exhausted petitions").

Nevertheless, district courts have the discretion to stay proceedings when confronted with a petition that contains only exhausted claims. Kelly v. Small, 315 F.3d 1063, 1071 (9th Cir. 2002); see also Scott v. Lewis, No. C-11-3128 LHK (PR), 2013 WL 2951042, at *1 (N.D. Cal. June 14, 2013) ("It is well-settled that a district court has the discretion to hold in abeyance a petition containing only exhausted claims.").

A stay should be granted in exceptional cases if: (1) the claims the petition seeks to pursue are cognizable under § 2254; (2) there is a likelihood of prejudice to the petitioner should a stay be denied; and (3) there is no evidence that the motion for a stay is brought to delay, to vex, or harass, or that the request is an abuse of the writ.

Id. (citing Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993)).

Petitioner requests a stay of the proceedings so that he can exhaust three claims: (1) "Fourth Amend U.S. Const against invasion of privacy and illegal search incident to an arrest[, ]" (2) "Sixth Amend U.S. Const ineffective assistance to counsel, which resulted in defendant not being a fair trial under the Fourteenth Amend U.S. Const[, ]" and (3) "prosecutor misconduct which resulted in defendant's denial of a fair trial under the Fourteenth Amend. U.S. Const." ECF No. 10 at 2, 5. Respondent contends that none of the claims identified in petitioner's motion warrants a stay. ECF No. 14.

A. Petitioner's Fourth Amendment Claim

Respondent opposes staying the proceedings while petitioner exhausts the Fourth Amendment claim because, given that this court cannot grant habeas relief on a Fourth Amendment claim, exhaustion of the claim would be futile. Id. at 6-7 (citing Stone v. Powell, 428 U.S. 465, 494-495 (1976)). Although respondent oversimplifies the law, petitioner's Fourth Amendment claim does not warrant a stay. In Stone, the United States Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." 428 U.S. at 494. Here, there is no indication that petitioner did not have a full and fair opportunity to litigate his Fourth Amendment claim in state court. Accordingly, petitioner's claim is barred in this federal habeas proceeding. Because the claim is not cognizable, the court denies petitioner's motion to stay with respect to his Fourth Amendment claim.

In his reply to respondent's opposition, petitioner argues that his Fourth Amendment claim "may not be cognizable in federal habeas review but it is in state habeas review, " and that he should therefore "be allowed the opportunity to vindicate" his Fourth Amendment rights in state court. ECF No. 15 at 4. Petitioner's argument, however, is not relevant to his motion to stay this federal habeas proceeding; even if the claim were exhausted, this court cannot grant habeas corpus relief on the claim absent evidence that petitioner did not have a full and fair opportunity to ...

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