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Thompson v. Fox

United States District Court, N.D. California, San Jose Division

July 29, 2015

DAMARCUS ANTHONY THOMPSON, Plaintiff,
v.
ROBERT W. FOX, Defendant.

ORDER DENYING MOTION TO DISMISS, GRANTING MOTION TO AMEND, AND DENYING MOTION FOR STAY Re: Dkt. Nos. 7, 8, 9

LUCY H. KOH, District Judge.

DeMarcus Thompson ("Petitioner") brings a petition for writ of habeas corpus ("Petition"), alleging violations of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution. ECF No. 1, at 6. Before the Court are multiple motions. First, Respondent Robert Fox, warden of the California Medical Facility in Vacaville, California ("Respondent"), has filed a motion to dismiss the Petition for Petitioner's failure to exhaust state law remedies. ECF No. 7 ("Motion to Dismiss"). Second, Petitioner has filed a motion to amend the Petition to remove Petitioner's one unexhausted claim. ECF No. 8 ("Motion to Amend"). Finally, Petitioner has also filed a motion for stay and abeyance. ECF No. 9 ("Motion for Stay"). Having considered the record in this case, the applicable law, and the parties' arguments, the Court hereby GRANTS the Motion to Amend, DENIES the Motion to Dismiss as moot, and DENIES the Motion for Stay, for the reasons stated below.

I. BACKGROUND

A. Factual Background

At about 3:00 a.m. on August 15, 2009, Petitioner was involved in an automobile accident in San Leandro, California. ECF No. 10-1 ("App. Op."), at 4. The accident resulted in the death of one passenger and injuries to three other passengers.[1] Id. at 4-8. When law enforcement personnel responded to the scene of the crash, Petitioner was not present. Id. at 6. However, shortly after the accident a witness and responding law enforcement officer separately reported seeing someone walking or running from the crash site. Id. at 4-5. After the accident, an arrest warrant for Petitioner was issued, and Petitioner was apprehended in March 2011. Id. at 6 n.3.

On June 14, 2011, the Alameda County District Attorney filed a consolidated information charging Petitioner with three counts. Id. at 2. Count One was for gross vehicular manslaughter. Id. As to Count One, the District Attorney sought a sentencing enhancement for Petitioner fleeing the scene of the crime. Id. Count Two was for driving under the influence of alcohol and causing personal injury. Id. As to Count Two, the District Attorney sought sentencing enhancements for causing bodily injury and death to multiple victims, driving at an excessive rate of speed, and-of particular relevance to the instant motions-causing great bodily injury to the three victims pursuant to Penal Code § 12022.7(a). Id. Count Five was for leaving the scene of an accident involving injury.[2] Id.

On September 6, 2011, Petitioner was convicted on all counts. Id. at 8. On October 21, 2011, Petitioner was sentenced to 20 years and 10 months in state prison. Id. at 8; Petition ¶ 2. Of particular relevance to the instant motions, the trial court applied sentencing enhancements for causing great bodily injury (pursuant to Penal Code § 12022.7) to Petitioner's sentence for his conviction of driving under the influence of alcohol and causing personal injury. App. Op. at 22. The trial court did not apply sentencing enhancements pursuant to § 12022.7 to Petitioner's conviction of gross vehicular manslaughter.[3] Id. On November 15, 2011, Petitioner filed a timely appeal to the California Court of Appeal, alleging insufficient evidence to support the three convictions, instructional error, prosecutorial misconduct, and sentencing error. Petition ¶ 3. On May 28, 2013, the First District Court of Appeal affirmed the judgment of the trial court but remanded for resentencing. Id. ¶ 4. Petitioner filed a petition for review on July 3, 2013 with the California Supreme Court, which denied the petition on August 30, 2013. Id. ¶ 5. On October 18, 2013, Petitioner was resentenced to a total term of 16 years, 10 months. Id. ¶ 6.

B. Procedural Background

On November 21, 2014, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254. See Petition. In the Petition, Petitioner asserts three claims: (1) that "[t]here was insufficient evidence to support [P]etitioner's convictions, and [P]etitioner was thus convicted in violation of his right not to be convicted except upon proof beyond a reasonable doubt" and his right "to due process of law, as protected by the Fifth and Fourteenth Amendments to the United States Constitution;" (2) "Petitioner was denied his Fifth, Sixth, and Fourteenth Amendment rights to not be found guilty unless all elements of the offense are proven to the jury beyond a reasonable doubt because the court failed to adequately inform the jury of the necessary elements of the offense;" and (3) "[t]he prosecutor's arguments violated [P]etitioner's right to due process of law and right to have all elements of the offense proven beyond a reasonable doubt as protected by the Fifth and Fourteenth Amendments to the United States Constitution." Id. ¶¶ 17-19.

On February 2, 2015, Respondent filed the Motion to Dismiss. See Mot. Dismiss. In that motion, Respondent argued that the Court should dismiss the entirety of the Petition because the Petitioner failed to exhaust his third claim for relief in state court, as required by 28 U.S.C. § 2254(b)(1)(A). Mot. Dismiss at 2.

Petitioner did not file an opposition to the Motion to Dismiss. Rather, on February 17, 2014, Petitioner filed the instant Motion to Amend. See Mot. Amend. In that motion, Petitioner sought leave of the Court to amend the Petition to remove Petitioner's unexhausted claim for habeas relief. Id. at 1. Respondent did not file an opposition to the Motion to Amend; however, in a subsequent filing Respondent stated that it did not oppose the Motion to Amend. ECF No. 10, at 1 n.1.

Also on February 17, 2015, Petitioner filed the instant Motion for Stay. See Mot. Stay. In that motion, Petitioner sought a stay and abeyance of Petitioner's remaining two exhausted claims in order to permit Petitioner to exhaust a new claim in state court based on the California Supreme Court's recent decision in People v. Cook, 60 Cal.4th 922 (2015). Mot. Stay at 1. On March 3, 2015, Respondent filed an opposition to the Motion for Stay, with one supporting exhibit. ECF No. 10 ("Opp'n"). On March 23, 2015, Petitioner filed a reply.[4] ECF No. 12 ("Reply").

II. LEGAL STANDARD

A. Motion to Dismiss ...


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