United States District Court, N.D. California
ORDER GRANTING MOTION TO HOLD FEDERAL HABEAS
PROCEEDINGS IN ABEYANCE AND DENYING MOTION TO DISMISS RE:
DKT. NO. 24
PHYLLIS J. HAMILTON United States District Judge
Fermin Ledesma, a condemned prisoner at California's San
Quentin State Prison, has filed a request to stay his federal
habeas petition pending the completion of exhaustion
proceedings in state court. Respondent opposes
petitioner's motion and requests that the petition be
dismissed. For the reasons outlined below, petitioner's
motion is GRANTED. Respondent's request to dismiss the
petition is DENIED.
has been convicted and sentenced to death twice. Petitioner
was initially convicted of first degree murder, kidnapping
and robbery in Santa Clara County. Special circumstance
allegations of the intentional killing of a witness,
felony-murder robbery and felony-murder kidnapping were found
true and petitioner was sentenced to death in March 1980.
Petitioner filed an appeal and a simultaneous state habeas
petition. The California Supreme Court consolidated the
proceedings and issued a ruling granting the habeas petition
and vacating petitioner's conviction on the grounds that
he received ineffective assistance of counsel at trial.
People v. Ledesma, 43 Cal.3d 171 (1987).
retrial, petitioner was once again convicted of first degree
murder, kidnapping and two counts of robbery. The jury found
true two special circumstances of intentional killing of a
witness and murder in the commission of a robbery. Petitioner
was sentenced to death on October 30, 1989. On direct appeal,
the California Supreme Court reversed one of the robbery
counts as well as the robbery special circumstance, but
affirmed the conviction and death sentence. People v.
Ledesma, 39 Cal.4th 641 (2006). The United States
Supreme Court denied certiorari on April 2, 2007. Ledesma
v. California, 549 U.S. 1324 (2007).
October 31, 2006, petitioner filed a shell state habeas
petition. (ECF Doc. No. 15, Ex. D) The shell petition was
filed before the California Supreme Court appointed counsel
to represent petitioner in his state habeas proceedings. On
December 20, 2007, the California Supreme Court appointed
Terry J. Amdur as petitioner's state habeas counsel.
filed a request for appointment of federal habeas counsel and
stay of execution in this Court on April 17, 2007. This
request was granted on May 1, 2007. (ECF Docket No. 3) His
case was referred to the Selection Board for recommendation
the assistance of counsel, Petitioner filed an amended state
habeas petition on December 10, 2010. On July 15, 2015, the
California Supreme Court denied this petition. An amended
order denying the petition was entered on July 31, 2015.
December 11, 2015, the Court appointed counsel to represent
petitioner in his federal habeas proceedings. Petitioner
subsequently filed a request for equitable tolling, which was
granted on May 17, 2016. (ECF Doc. No. 17) Petitioner filed a
federal habeas petition on December 7, 2016. (ECF Doc. No.
December 9, 2016, petitioner filed an exhaustion petition in
state court. On that same day, he filed a motion to hold
federal proceedings in abeyance pending the completion of
state exhaustion proceedings. This motion was denied without
prejudice because it was filed prior to the parties'
meet-and-confer period on exhaustion as required by Capital
Habeas Corpus Local Rule 2254-29(b). Subsequent to the
Court's order, the parties met and conferred regarding
the exhaustion status of petitioner's claims. The parties
now agree as to the exhaustion status of all claims.
renewed his request for a stay on March 5, 2017. (ECF Doc.
No. 24) Respondent filed a response on March 13, 2017. (ECF
Doc. No. 26) Petitioner filed a reply on March 16, 2017. (ECF
Doc. No. 27)
Supreme Court follows a rule of “total exhaustion,
” requiring that all claims in a habeas petition be
exhausted before a federal court may grant the petition.
Rose v. Lundy, 455 U.S. 509, 522 (1982). A district
court is permitted, however, to stay a mixed petition to
allow a petitioner to exhaust his claims in state court
without running afoul of the one-year statute limitations
period for receiving federal habeas review imposed by the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Rhines v. Weber, 544 U.S.
269, 273-75 (2005). A district court may stay a mixed
petition if: 1) the petitioner has good cause for his failure