United States District Court, N.D. California, Eureka Division
ORDER GRANTING MOTION TO STAY AND ADMINISTRATIVELY
CLOSING CASE Dkt. 10, 13
J. VADAS United States Magistrate Judge
a California prisoner, proceeds with a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
originally filed a motion for stay but no petition. The
motion for a stay was dismissed with leave to amend and
petitioner was ordered to file a petition. He has now filed
an amended petition which contains a motion to stay. (Doc.
was found guilty of one count of first degree murder, one
count of conspiracy to commit murder, two counts of attempted
murder, one count of criminal threats, and one count of
kidnapping. People v. Howard, No. A139179, 2015 WL
7736634, at *1 (Cal.Ct.App. Nov. 30, 2015). The California
Court of Appeal affirmed the two counts of attempted murder,
the count of criminal threats, and the kidnapping count.
Id. at 24. The court reversed the first degree
murder and the conspiracy to commit murder convictions.
Id. The court stated that if the prosecution elects
not to retry the first degree murder charge, the judgment
will be modified to be a second degree murder conviction. The
case was remanded to the trial court to either retry the
charges or modify the judgment. Id. The California
Supreme Court denied the petition for review on March 9,
2016. It is not clear if petitioner will be retried on the
murder and conspiracy counts.
court may entertain a petition for writ of habeas corpus
"in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties
of the United States." 28 U.S.C. § 2254(a);
Rose v. Hodges, 423 U.S. 19, 21 (1975). Habeas
corpus petitions must meet heightened pleading requirements.
McFarland v. Scott, 512 U.S. 849, 856 (1994). An
application for a federal writ of habeas corpus filed by a
prisoner who is in state custody pursuant to a judgment of a
state court must “specify all the grounds for relief
available to the petitioner . . . [and] state the facts
supporting each ground.” Rule 2(c) of the Rules
Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
“‘[N]otice' pleading is not sufficient, for
the petition is expected to state facts that point to a
‘real possibility of constitutional error.'”
Rule 4 Advisory Committee Notes (quoting Aubut v.
Maine, 431 F.2d 688, 689 (1st Cir. 1970)).
grounds for federal habeas relief, petitioner asserts that:
(1) the trial court's denial of his motion to sever
various counts violated due process; (2) the prosecution
abused its discretion by joining various counts; (3) it was a
due process violation to mandate retrial on the reversed
counts; (4) appellate counsel was ineffective; (5) trial
counsel was ineffective; (6) there was prosecutorial
misconduct; and (7) the trial court abused its discretion by
not hearing certain motions together. Plaintiff states that
the first claim is exhausted but the remaining claims are
Rhines v. Weber, 544 U.S. 269 (2005) the United
States Supreme Court found that a stay and abeyance of a
mixed federal petition should be available only in the
limited circumstance that good cause is shown for a failure
to have first exhausted the claims in state court, that the
claim or claims at issue potentially have merit and that
there has been no indication that petitioner has been
intentionally dilatory in pursuing the litigation.
Rhines, supra, at 277-78.
construing the motion, petitioner has shown good cause for
his failure to exhaust the claims before filing this action,
the claims do not appear patently meritless, and there does
not appear to be any intentionally dilatory litigation tactic
by petitioner. Petitioner is informed that before he may
challenge either the fact or length of his confinement in a
habeas petition in this court, he must present to the
California Supreme Court any claims he wishes to raise in
this Court. See Rose v. Lundy, 455 U.S. 509, 522
(1982) (holding every claim raised in federal habeas petition
must be exhausted).
Petitioner's motion (Docket No. 10) is
DENIED as moot.
Petitioner's motion for a stay (Docket No. 13) is
GRANTED and this case is
STAYED to allow petitioner to present his
unexhausted claims in state court. If petitioner is not
granted relief in state ...