United States District Court, S.D. California
July 16, 2015
DARYL LOWRY, Petitioner,
ERIC ARNOLD, Warden, et al., Respondents.
ORDER ADOPTING REPORT AND RECOMMENDATION, AND DENYING PETITIONER'S MOTION TO STAY AND ABEY; AND NOTICE REGARDING POSSIBLE DISMISSAL OF PETITION FOR FAILURE TO EXHAUST STATE COURT REMEDIES
DANA M. SABRAW, District Judge.
Petitioner Daryl Lowry, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. In the operative first amended petition ("Petition"), he asserted two claims for ineffective assistance of counsel and two due process claims based on the events leading up to his guilty plea in state court. Petitioner pleaded guilty to intent to commit great bodily injury, and was sentenced to four years in custody.
The Petition was referred to United States Magistrate Judge Nita L. Stormes for a Report and Recommendation ("R & R") pursuant to 28 U.S.C. § 636(b)(1)(B) and Civil Local Rule 72.1(d). Upon review of the Petition, Judge Stormes made a preliminary determination that Petitioner's second claim was not exhausted. On March 18, 2015, she issued a Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies, notifying Petitioner that at least one of his claims was not exhausted, and providing him with four options for further proceedings. On April 2, 2015, Petitioner timely exercised one of his options by filing a motion to stay and abey proceedings in this Court while he exhausts his state court remedies. Respondent filed an opposition. On May 27, 2015, upon review of the record, Judge Stormes issued an R&R recommending to deny Petitioner's motion, because he still had eleven months before the expiration of the statute of limitations to return to state court and exhaust his unexhausted claim. In addition, Petitioner did not make the requisite showing of good cause for his failure to previously exhaust the claim, that the claim was potentially meritorious, and that he did not engage in intentionally dilatory litigation tactics. (R&R at 3, citing Rhines v. Weber, 544 U.S. 269, 278 (2005).) Petitioner has not filed an objection to the R&R, but submitted a letter to Judge Stormes asserting that he did not commit the crime to which he had pleaded guilty.
A district judge "may accept, reject, or modify the recommended disposition" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed.R.Civ.P. 72(b); see 28 U.S.C. § 636(b)(1). "The court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). When no objections are filed, as here, de novo review is waived. The "statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. " United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (emphasis in original); see Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1225-26 & n.5 (D. Ariz. 2003) (applying Reyna-Tapia to habeas review).
Even if the Court construes Petitioner's letter as an objection, the objection is unavailing, as Petitioner has made no showing why he cannot exhaust his unexhausted claim within the time remaining before the expiration of the statute of limitations. Petitioner also has not made a showing on any other requirements to stay and abey, such as, for example, good cause for his failure to previously exhaust the claim. See Rhines, 544 U.S. at 278.
Accordingly, the R&R is adopted. Petitioner's motion to stay and abey is denied. Petitioner is hereby given three options. To avoid the Court dismissing the Petition, Petitioner must exercise one of the below three options by filing an appropriate notice or motion no later than August 18, 2015:
Option 1: File a Motion for Withdrawal and Abeyance: Withdrawal and abeyance is a method of staying a timely federal petition while a petitioner returns to state court to exhaust unexhausted claims. King v. Ryan, 564 F.3d 1133, 1139-40 (9th Cir. 2009). Unlike the "stay and abeyance" procedure, a petitioner seeking to use the "withdrawal and abeyance" procedure need not show good cause for his failure to exhaust. Id. at 1140. Under the "withdrawal and abeyance" procedure, a petitioner may withdraw the unexhausted claims from his federal petition, return to state court and exhaust those claims while the federal court holds the fully exhausted claims in abeyance, then seek to amend the timely, stayed federal petition with the newly exhausted claims. Id. The newly exhausted claims, however, must either themselves be timely under the statute of limitations or they must "relate back" to the claims in the fully-exhausted petition. That is, they must share a "common core of operative facts" with the previously exhausted claims. Id. at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659, 662-64 (2005)). If Petitioner cannot show that the claims are timely or that they relate back to any exhausted claim, he cannot litigate those claims in this Court.
Option 2: Voluntarily Dismiss the Petition: Petitioner may move to voluntarily dismiss his entire federal petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 (1982) (stating that when a mixed petition is dismissed, a petitioner may "return to state court to exhaust his claims"). Petitioner is cautioned, however, that any new federal petition must be filed before expiration of the one-year statute of limitations and in this case. 28 U.S.C. § 2244(d). The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999); but see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings."); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005), as amended 439 F.3d 993 (holding that a state habeas petition that was dismissed as untimely was neither "properly filed" nor "pending" while under consideration by the state court and therefore did not toll the statute of limitations). Absent some other basis for tolling, the statute of limitations continues to run while a federal habeas petition is pending. Duncan v. Walker, 533 U.S. 167, 181-82 (2001).
Option 3: Formally Abandon Unexhausted Claims: Petitioner may formally abandon his unexhausted claims and proceed with his exhausted ones. See Rose, 455 U.S. at 510, 520 (stating that a petitioner who files a mixed petition may resubmit the habeas petition to present only exhausted claims). Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them in federal court. See Slack v. McDaniel, 529 U.S. 473, 486-87 (2000); see also 28 U.S.C. § 2244 (a)-(b).
IT IS SO ORDERED.