United States District Court, E.D. California
ANTHONY R. TURNER, Petitioner,
WILLIAM MUNIZ, Warden, Respondent.
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner represented by appointed counsel in this
habeas corpus action filed pursuant to 28 U.S.C. § 2254.
Petitioner challenges a May 2010 judgment of the Yolo County
Superior Court sentencing him to a prison term of 18 years
based on felony convictions for the possession and
transportation of methamphetamine in violation of California
Health and Safety Code sections 11377(a) and 11379(a),
respectively, and various sentencing enhancements.
action proceeds on the Second Amended Petition filed December
22, 2014. See ECF No. 54. Respondent has answered
the petition. See ECF No. 57. Presently pending is
petitioner’s second motion to stay this action.
See ECF No. 69. Petitioner’s first motion was
denied without prejudice. See ECF No. 63. For the
reasons that follow, the undersigned recommends that the
instant motion be denied.
filed the initial petition in this action on February 19,
2013,  without the assistance of counsel.
See ECF No. 1. The court granted petitioner’s
request to proceed in forma pauperis and request for
appointment of counsel, and directed the Federal Defender to
file an amended petition within sixty days. See ECF
No. 20. The court expressed concerns regarding the statute of
limitations, noting that petitioner had previously filed a
federal habeas action challenging the same convictions and
sentence. See id. at 1-2; see Turner v.
Lewis, Case No. 2:10-cv-3424 DAD P (E.D.
Cal.). That prior case was dismissed without
prejudice on April 27, 2011, due to petitioner’s
failure to timely file a second amended
order filed May 14, 2013, and at the request of the Federal
Defender, the court appointed attorney Stephanie M. Adraktas
to represent petitioner in the instant action. See
ECF No. 24. Counsel obtained an extension of time within
which to file an amended petition, and filed a First Amended
Petition (FAP) on February 21, 2014. See ECF No. 39.
The FAP asserted one claim, that “petitioner’s
right to due process under the Fifth and Fourteenth
Amendments was violated due to the government’s bad
faith failure to preserve material exculpatory evidence,
” in violation of California v. Trombetta, 467
U.S. 479, 480 (1984). ECF No. 39 at 2, 8.
obtained several extensions of time within which to file a
response to the FAP. On October 21, 2014, petitioner and
respondent filed a joint motion to vacate the scheduling
order and requested that the court grant petitioner leave to
file and serve a further amended petition. See ECF
No. 52. The parties noted that petitioner had, pro se, filed
yet another duplicative federal habeas action. See Turner
v. Richardson, Case No. 2:13-cv-01160 JAM AC P (E.D.
Cal.) (filed on May 22, 2013, and dismissed as duplicative on
September 24, 2014). Petitioner’s counsel also noted
the recent denial in the state court of petitioner’s
“exhaustion petition.” ECF No. 52.
order filed October 23, 2014, this court authorized the
filing of a Second Amended Petition (SAP), and set a new
briefing schedule. See ECF No. 53. Petitioner filed
the operative SAP on December 22, 2014, again asserting only
his Trombetta claim. See ECF No. 54. The
SAP asserted exhaustion of that claim by the California
Supreme Court on October 1, 2014. See ECF No. 54-2
(state Trombetta petition) at 2, 9; ECF No. 54-1
(order denying state petition). Respondent was granted an
extended period to file a response, and filed his answer on
March 20, 2015, addressing the merits of petitioner’s
claim but also asserting that this action is barred by the
statute of limitations. See ECF No. 57. Petitioner
has not yet filed a traverse, due to the pendency of his stay
26, 2015, petitioner filed his initial motion to stay this
action pending exhaustion of state court proceedings on a
petition for resentencing filed by petitioner’s trial
counsel under California’s recently enacted Proposition
47. See ECF No. 59. Respondent opposed the motion,
see ECF No. 61; petitioner filed a reply,
see ECF No. 62. On January 5, 2016, this court
denied petitioner’s motion without prejudice, on the
ground that petitioner failed to demonstrate entitlement to a
stay under either Rhines v. Weber, 544 U.S. 269
(2005), or Kelly v. Small, 35 F.3d 1063');">35 F.3d 1063 (9th Cir.
2003). See ECF No. 64 at 3-5. The court set a
deadline for filing petitioner’s traverse.
requested an extension of time within which to file his
traverse or to again request a motion to stay. ECF No. 67.
The court granted the request for extension of time. ECF No.
68. On June 14, 2016, petitioner again moved to stay this
action pending the exhaustion of petitioner’s
resentencing proceedings in the state courts. ECF No. 69.
Petitioner also informed this court that the California
Supreme Court granted his petition for review filed on
February 16, 2016, and the matter remains pending. ECF No. 69
order filed June 16, 2016, this court directed respondent to
file a response to petitioner’s renewed motion to stay.
ECF No. 70. Respondent filed a statement of non-opposition,
without citation to any legal authority . ECF No. 71.
Pending State Court Proceedings
March 5, 2015 - nearly two years after petitioner commenced
the instant action - petitioner’s trial counsel, Rodney
Beede, filed a petition in the Yolo County Superior Court to
recall petitioner’s sentence and obtain resentencing in
accordance with Proposition 47, the “Safe Neighborhoods
and Schools Act, ” enacted November 4, 2014 and
implemented the next day.The new law reduced some drug felonies
to misdemeanors and established a resentencing mechanism
under California Penal Code Section 1170.18. See ECF
superior court denied petitioner’s resentencing
petition. On April 24, 2015, Mr. Beede filed a notice of
appeal in the California Court of Appeal, Third Appellate
District. The state appellate court appointed attorney Robert
Navarro to represent petitioner. On January 15, 2016, the
appellate court affirmed in part and reversed in part the
decision of the trial court. The appellate court found that
the trial court erred in failing to reduce petitioner’s
felony possession conviction to a misdemeanor under
Proposition 47, but noted that the error had not contributed
to petitioner’s aggregate prison term because his
possession conviction was stayed upon sentencing. The
appellate court affirmed the trial court’s refusal to
reduce petitioner’s felony transportation conviction to
a misdemeanor, finding that it was not subject to reduction
under the terms of Proposition 47, and rejecting
petitioner’s equal protection argument. The California
Court of Appeal remanded the case to the trial court with
directions to recall petitioner’s sentence based on his
possession conviction and to resentence petitioner
accordingly. See ECF No. 69-1 (Court of Appeal
February 16, 2016, petitioner, proceeding pro se, filed a
petition for review in the California Supreme Court.
See ECF No. 67-2 at 1-4. The California Supreme
Court granted review on March 30, 2016. See People v.
Turner, Cal. Supreme Court Case No. S232272. The court
deferred further action and briefing in Turner
pending a decision in the designated lead case, People v.
Martinez, Cal. Supreme Court Case No. S231826.
Martinez presents the question whether a felony
conviction for transportation of a controlled substance may
be reduced to a misdemeanor pursuant to a petition for recall
of sentence under Section 1170.18. On July 7, 2016, appellant
Martinez, through appointed counsel, filed his opening brief.
Id. Meanwhile, on April 13, 2016, the California
Supreme Court granted petitioner’s request for