United States District Court, E.D. California
ORDER DISMISSING THE FIRST AMENDED PETITION AS A
MIXED PETITION AND GRANTING PETITIONER LEAVE TO AMEND (DOCS.
15 AND 16)
K. Oberto UNITED STATES MAGISTRATE JUDGE
REQUIRED WITHIN 21 DAYS
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.
Denial of First Motion for Stay and Abeyance
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.
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
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.
Failure to Comply With Court Order
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.
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.
The Amended Petition is a Mixed Petition
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, ...