United States District Court, N.D. California
ORDER DENYING PETITIONER'S MOTION TO LIFT STAY
RE: DOC. 529, 530, 531
THELTON E. HENDERSON United States District Judge
seeks to have the stay in this proceeding lifted and have the
merits of the claims raised in his petition for writ of
habeas corpus determined prior to the Court's retirement
in August. For the foregoing reasons, Petitioner's motion
Troy Ashmus, a condemned inmate at California's San
Quentin State Prison, filed a petition for a writ of habeas
corpus. The Court held an evidentiary hearing on some of
petitioner's claims, at which petitioner adduced evidence
not previously presented to the California Supreme Court.
Following the hearing but prior to post-hearing briefing, the
United States Supreme Court issued Cullen v.
Pinholster, 563 U.S. 170 (2011), which limits the
ability of district courts to review evidence not previously
evaluated by the state court. As a result, this Court sua
sponte entered a stay of proceedings to allow Petitioner
to return to state court to file an exhaustion petition that
would present the new evidence presented in the evidentiary
hearing to the California Supreme Court for consideration in
the first instance.
court has not yet rendered a decision on the exhaustion
petition; however, petitioner now asks this Court to lift the
stay and decide the case on the merits because the
Court's impending retirement constitutes “highly
unusual circumstances” that “require that the
policy favoring exhaustion give way to expeditious
review” of Petitioner's claims. Mot. to Lift Stay
at 5. Petitioner also argues that the extensive delay in the
state court's deliberation of his exhaustion petition
merits excusing any exhaustion that may be required.
also asks for the stay to be lifted because, he argues, the
claims already have been exhausted and the current proceeding
in state court is unnecessary. Petitioner responds that the
new evidence presented during the evidentiary hearing
fundamentally altered the claims, rendering them unexhausted.
in state custody who wish to collaterally challenge either
the fact or length of their confinement in federal habeas
proceedings are first required to exhaust state judicial
remedies, either on direct appeal or through collateral
proceedings, by presenting the highest state court available
with a fair opportunity to rule on the merits of each and
every claim they seek to raise in federal court. 28 U.S.C.
§ 2254(b), (c); Granberry v. Greer, 481 U.S.
129, 133-34 (1987); Rose v. Lundy, 455 U.S. 509, 510
(1982). State remedies must be exhausted except in unusual
circumstances, Granberry, 481 U.S. at 134.
petitioner presents the Court with new evidence that places a
claim “in a significantly different and stronger
evidentiary posture than it had in state court, ” it
renders the claim fundamentally altered and the petitioner
must present the new claim for exhaustion to the state court.
Aiken v. Spalding, 841 F.2d 881, 883, 884 n. 3 (9th
circumstances such as extraordinary delay may excuse
exhaustion by rendering the process ineffective,
see, e.g., Coe v. Thurman, 922
F.2d 528, 530 (9th Cir. 1991) (extraordinary delay in state
courts can render state corrective processes ineffective
within meaning of § 2254(b) and excuse exhaustion);
Phillips v. Vasquez, 56 F.3d 1030, 1037-38 (9th Cir.
1995) (prisoner's interest in reasonably prompt review of
conviction outweighed jurisprudential concerns of exhaustion
and abstention for prisoner whose conviction of murder had
been final for ten years but whose sentence of death was
still under appellate review in state court). However,
“there is no talismanic number of years or months,
after which due process is automatically violated.”
Coe, 922 F.2d at 531.
motion and the briefing in response to it present two
fundamental questions: must he exhaust claims Four, Five, and
Seven and, if so, may exhaustion be excused because of the
California Supreme Court's delay in adjudicating his
post-evidentiary hearing briefing, Respondent asserted that
Pinholster barred Petitioner from using the new
evidence to support his claims. See, e.g.,
Answering Brief Re: Claims Four and Five at 2, fn. 1 (Dkt.
502). Petitioner replied that he should be allowed to return
to state court to exhaust. Reply Brief Re: Claims Four and
Five at 13-14 (Dkt. 513). The cases he cited called for a
return to state court because the new evidence placed the
claims in question in a stronger evidentiary posture, which
required exhaustion. See Aiken, 841 F.2d at 883, 884
n. 3. In his reply to Respondent's ...