Turner v. Muniz

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Petitioner 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.

         This 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.

         II. Procedural Background

         Petitioner filed the initial petition in this action on February 19, 2013, ^[1] 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.).^[2] That prior case was dismissed without prejudice on April 27, 2011, due to petitioner’s failure to timely file a second amended petition.^[3]

         By 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.^[4]

         Respondent 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.

         By 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 motions.

         On June 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.

         Petitioner 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 at 1-2.

         By 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.

         III. Pending State Court Proceedings

         On 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.^[5]The new law reduced some drug felonies to misdemeanors and established a resentencing mechanism under California Penal Code Section 1170.18.^[6] See ECF No. 59.

         The 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 opinion).

         On 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.^[7] 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 ...