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Casillas v. Secretary of Corrections

United States District Court, E.D. California

July 26, 2017

OMAR CASILLAS, Petitioner,
v.
SECRETARY OF CORRECTIONS, Respondent.

          ORDER DISMISSING THE FIRST AMENDED PETITION AS A MIXED PETITION AND GRANTING PETITIONER LEAVE TO AMEND (DOCS. 15 AND 16)

          Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

         RESPONSE REQUIRED WITHIN 21 DAYS

         Petitioner Omar Casillas is a state prisoner who seeks to proceed with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because the petition, as originally filed on April 5, 2017, included an unexhausted claim, Petitioner simultaneously moved for an order of stay and abeyance to permit him to exhaust that claim in state court.

         I. Denial of First Motion for Stay and Abeyance

         The Court referred the petition and the motion for stay and abeyance to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. On May 11, 2017, the Magistrate Judge filed findings and recommendations that the Court deny the motion for stay and abeyance. The Magistrate Judge first found that the state court had already addressed the petition's first three claims in Petitioner's direct appeal, rendering those claims exhausted. Only the fourth claim, which alleged ineffective assistance of appellate counsel, was unexhausted. Because Petitioner failed to establish good cause for his failure to exhaust and because the fourth claim lacked merit, the Magistrate Judge recommended that the Court deny the motion for stay and abeyance as to ground four.

         On June 12, 2017, Petitioner filed objections in which he sought to establish that a motion for stay and abeyance was timely. The objections did not address the Magistrate Judge's recommendation that granting the motion for stay and abeyance would be inappropriate in light of ground four's lack of merit.

         After reviewing the record as a whole and Petitioner's objections, the District Court adopted the findings and recommendations on June 22, 2017. The order denied the requested order of stay and abeyance but provided:

3. Within thirty (30) days of this order, Petitioner may file an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, including only the first three grounds for relief alleged in the petitioner filed April 5, 2017 (Doc. 1). The amended petition shall not include the unexhausted fourth ground for relief alleging ineffective assistance of appellate counsel.

Doc. 15 at 2.

         II. Failure to Comply With Court Order

         Petitioner filed an amended petition on July 24, 2017; however, the petition did not comply with paragraph 3 of the June 22, 2017, order. Instead, Petitioner first combined the first three grounds of the original petition into a single revised ground for relief that incorporated additional allegations of ineffective assistance of counsel and then added additional unexhausted grounds: (1) prosecutorial misconduct; (2) a Confrontation Clause violation (Crawford v. Washington, 541 U.S. 36, 59 (2004)); and (3) cumulative error. The amended petition also seeks an order of stay and abeyance to permit Petitioner to exhaust the new claims in state court. As filed with the Court, the amended petition does not comply with June 22, 2017, order.

         The Court has discretion to impose any and all sanctions authorized by statute or rule or within the inherent power of the Court, including dismissing the action, based on a petitioner's failure to comply with a court order. F.R.Civ.P. 11; Local R. 110. Thus, the Court may dismiss the amended petition for failure to comply with a Court order.

         III. The Amended Petition is a Mixed Petition

         If the Court declines to dismiss the amended petition for failure to comply with a Court order, it must acknowledge that the amended petition is a mixed petition consisting of exhausted and unexhausted claims, and consider Petitioner's second request for an order of stay and abeyance under either Rhines v. Weber, ...


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