United States District Court, N.D. California
RONALD J. MCINTOSH, Plaintiff,
ERIC H. HOLDER JR., et al., Defendant.
ORDER GRANTING MOTION TO STAY AND ABEY
CHARLES R. BREYER UNITED STATES DISTRICT JUDGE.
April 7, 2017, the Court informed the parties that the
alleged suppression of triggerman Drax Quartermain's
history of mental illness is a stand-alone claim for relief
under Brady v. Maryland, 373 U.S. 83 (1963), that
remains unexhausted. Order (dkt. 241); see also,
e.g., Soo Park v. Thompson, 851 F.3d 910, 919,
925 n.17 (9th Cir. 2017) (distinguishing Brady
claims from other claims of prosecutorial malfeasance). It
then gave McIntosh two options: (1) voluntarily dismiss this
claim, which would allow the Court to rule on the rest of his
Rule 60(b) motion, or (2) move to stay and abey these
proceedings while he exhausts state-court remedies.
Id. (citing Dixon v. Baker, 847 F.3d 714,
720 (9th Cir. 2017)). McIntosh has chosen the latter
course. See Mot. to Stay (dkt. 243).
grant the motion to stay and abey these proceedings, the
Court must first find that McIntosh had “good
cause” for failing to exhaust his claim that the
government suppressed information about Quartermain's
history of mental illness. See Dixon, 847 F.3d at
720. Second, it must find that this claim is not
“plainly meritless.” Id. Third and
finally, it must find that McIntosh has not engaged in
abusive litigation tactics. Id.
As to the first step, McIntosh has great cause for not
exhausting his claim regarding the suppression of
Quartermain's history of mental illness: the government
did not disclose it until this Court forced its
hand. See Gonzalez v. Wong, 667 F.3d
965, 979 (9th Cir. 2011).
As to the second step, Gonzalez v. Wong, 667 F.3d
965 (9th Cir. 2011), lights the way. Two decades before the
Ninth Circuit heard his case, a California jury sentenced
Jesse Gonzalez to die for the special circumstance killing of
a police officer. Gonzalez, 667 F.3d at 971.
Although there was no dispute that he pulled the trigger, the
case hinged on whether Gonzalez knew in advance that the
police were coming to arrest him on May 29, 1979.
Id. at 973. That theory relied “almost
entirely” on testimony from a jailhouse informant named
William Acker. Id. Acker testified that Gonzalez had
admitted knowing the police were coming and voiced a desire
to “bag a cop.” Id.
to Gonzalez, the government had not disclosed that Acker
“had a severe personality disorder, was mentally
unstable, possibly schizophrenic, and had repeatedly lied and
faked attempting suicide in order to obtain transfers to
other facilities.” Id. at 976. The Ninth
Circuit held that this omission was a colorable
Brady violation because “a reasonable state
court could conclude that there was a reasonable
probability” both that “the new evidence would
have changed the way in which the jurors viewed Acker's
testimony, ” and that “this change would have
resulted in a different verdict.” Id. at 982.
case has too much in common with Gonzalez to warrant
a different outcome. McIntosh's conviction hinged in
large part on out-of-court statements from Quartermain, who
allegedly told David Younge (who then told the jury) that
McIntosh had paid him to kill Ronald Ewing. Quartermain, like
Acker, also had a history of schizophrenia, but that fact was
not disclosed. What is more, Acker-unlike
Quartermain-testified at trial. The jury in Gonzalez's
trial therefore had the chance to observe Acker's
demeanor, but the jury in McIntosh's trial had no chance
to observe Quartermain's. Suppressing critical mental
health information here might therefore have mattered all the
As to the third step, McIntosh has argued all along that he
has uncovered new evidence to support old claims. And here,
unlike in Gonzalez, the state court denied
McIntosh's petition on procedural grounds. Both of those
facts gave McIntosh some reason to believe that this Court
could hear his claims on the merits-now. See James v.
Ryan, 733 F.3d 911, 914 (9th Cir. 2013). That McIntosh
was ultimately mistaken does not imply that he has engaged in
abusive litigation tactics. If anything, he has pushed for
this litigation to be resolved as soon as possible.
foregoing reasons, the Court GRANTS McIntosh's motion to
stay and abey these proceedings while he exhausts state-court
IS SO ORDERED.
 McIntosh also requested permission to
use documents filed in connection with his Rule 60(b) motion
in state court. See Mot. for Misc. Relief (dkt.
244). Insofar as he requires such permission, the Court
GRANTS the request. Notwithstanding any state-law procedural
barriers, he is also free to use as he sees fit new evidence
that might support his claims that the government intimidated
would-be alibi witness Jim Green, improperly coached
prosecution witness Deborah Chandler, and covered up star
witness David Younge's alleged perjury. See Cullen v.
Pinholster, 570 U.S. 170, 206 (2013) (Breyer, J.,
concurring) (noting that a petitioner “can always
return to state court presenting new evidence not previously
 The government maintains that there is
insufficient evidence showing that Quartermain's history
of mental illness was suppressed and that it was
“discoverable” during trial. See
Opp'n to R.60(b) Mot. at 13-14 & n.11. That will not
work. The government does not dispute that it possessed this
information. And, assuming it was indeed Brady
material, the government would have had a disclosure
obligation whether or not trial counsel requested it. The
government has not come forward with any evidence suggesting
that the information was in fact disclosed, and given the
effort it took to obtain this information-as well as the