United States District Court, C.D. California, Western Division
ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
ANDRÉ BIROTTE JR. UNITED STATES DISTRICT JUDGE
28 U.S.C. § 636, the Court has reviewed the First
Amended Petition, the other records on file herein, and the
Report and Recommendation of the United States Magistrate
Judge. Instead of objections, Petitioner filed a
“Motion to Stay Proceeding to Allow a State Decision
Which Will Remove Procedural Default.” Dkt. 87
(“Motion to Stay”). Almost two months later,
Petitioner filed late objections to the Report and
Recommendation. See Dkt. 93. Petitioner also renewed
his motion to stay. See Dkt. 95 (âSecond Motion to
Stayâ). The Court has engaged in a de novo review of those
portions of the Report and Recommendation to which objections
have been made.
reasons below, the Court denies Petitioner's Motion to
Stay and accepts the report, findings, and recommendations of
the Magistrate Judge.
2008, Petitioner was convicted of three counts of attempted
murder, two counts of discharging a firearm at an occupied
motor vehicle, and one count of discharging a firearm at an
inhabited dwelling, with firearm and gang enhancements.
See Dkt. 77, 3 Reporter's Transcript
(“RT”) 1832-42. He was sentenced to 170 years to
life in state prison. See 3 RT 2137. At sentencing,
Petitioner was represented by attorney Walter Urban.
See 3 RT 2101.
2016, Petitioner filed a First Amended Petition for Writ of
Habeas Corpus by a Person in State Custody under 28 U.S.C.
§ 2254. See Dkt. 45. Among other things, he
argued that his sentence violated the Eighth Amendment and
that Urban and appellate counsel provided constitutionally
ineffective assistance of counsel for failing to raise this
argument. See id at 4-5. The Court dismissed these
claims as untimely and permitted Petitioner to proceed on his
remaining ineffective assistance of counsel claims.
See Dkt. 73, 75. On November 21, 2018, the assigned
Magistrate Judge recommended denying the surviving claims.
See Dkt. 80.
Khoury represents Petitioner in these federal habeas corpus
proceedings. According to Khoury, Petitioner called him in
November 2018 to say that he was being
“resentenced.” Dkt. 87 at 5. Petitioner asked
Khoury to represent him at the hearing, but Khoury was unable
to travel due to his wife's illness. See id
Petitioner appeared in Los Angeles County Superior Court on
November 29, 2018; Urban again represented Petitioner.
See Dkt. 89-2 (transcript of hearing); see
also Dkt. 92-1 at 7.
to the transcript of that hearing, the California Department
of Corrections had alerted the Superior Court that the trial
court had not “appropriately” sentenced
Petitioner in 2008 on counts 3 (attempted murder), 4
(attempted murder), 5 (shooting at an occupied motor
vehicle), and 7 (attempted murder). Id at 3. The
Superior Court reviewed the sentencing transcript and
concluded that the trial court had in fact correctly
sentenced Petitioner on counts 3, 4, and 5, but that the
“clerk did not enter the correct sentence into the
minute order.” Id. at 4. As for count 7, the
Superior Court concluded that it was “not clear,
” because the trial court had alluded to a gang
enhancement but did not specifically “say 15 years to
life.” Id. Thus, the Superior Court concluded
that it appeared “to be clerical error . . .
mostly.” Id. Thus, for counts 3, 4, and 5, the
Superior Court would merely “reshuffl[e]” the
sentence, and for count 7, the minute order and amended
abstract of judgment would reflect “15 years to life
plus 20 years.” Id. at 4-5.
February 21, 2019, Khoury filed a motion to recall
Petitioner's sentence under California Penal Code §
1170(d). See Dkt. 89-1 at 2-10.Khoury argued that
Urban should have argued that Petitioner's sentence
violated the Eighth Amendment's proscription against
cruel and unusual punishment. See id.
March 14, 2019, the Superior Court held a hearing on
Petitioner's motion to recall. See Dkt. 91-1
(minute order); see also Dkt. 92-1 (transcript).
Khoury appeared on behalf of Petitioner. The Superior Court
noted at the outset that the November 29, 2018 hearing had
not resulted in a resentencing that would trigger
reconsideration under § 1170(d). See Dkt. 92-1
at 2-3. The Superior Court repeatedly stated that it was
denying Petitioner's motion to recall with respect to the
Eighth Amendment argument. See id at 8-10. The
Superior Court instead construed Petitioner's arguments
as a petition for a “Franklin hearing”
and a petition for resentencing under Cal. Penal Code §
1170.95 or Senate Bill 1437. See id at
9-10. Khoury asked the state court to reconsider
its denial, because by “having a resentence, ”
Petitioner's Eighth Amendment claim would “suddenly
[be] timely” in federal court. Id at 11. The
Superior Court refused to grant the motion “just for
that purpose.” Id The Superior Court pointed
out that while the Franklin hearing would not change
the sentence, Petitioner could file another state habeas
petition (for example, under SB 1437) that led to a new
federal habeas petition. Id at 11-12. The Superior
Court affirmed that the hearing on November 29, 2018 hearing
was not a resentencing under § 1170(d). See id
at 12-13, 15. The Superior Court therefore denied without
prejudice Petitioner's motion to recall, in case Khoury
wanted to “revisit it” at the June 2019 hearing
on the forthcoming habeas petition for a Franklin
hearing and petition to recall Petitioner's sentence
under SB 1437. See id at 19.
States district courts have inherent authority to stay
proceedings, for the power to stay “is incidental to
the power inherent in every court to control the disposition
of the causes on its docket with economy of time and effort
for itself, for counsel, and for litigants.” Landis
v. North American Co., 299 U.S. 248, 254 (1936).
“A trial court may, with propriety, find it is
efficient for its own docket and the fairest course for the
parties to enter a stay of an action before it, pending
resolution of independent proceedings which bear upon the
case. This rule applies whether the separate proceedings are
judicial, administrative, or arbitral in character, and does
not require that the issues in such proceedings are
necessarily controlling of the action before it.”
Leyva v. Certified Grocers of California Ltd., 593
F.2d 857, 863-64 (9th Cir. 1979). In exercising its
discretion, a court must evaluate the competing interests
affected by either granting or refusing a stay, including
“the hardship or inequity which a party may suffer in
being required to go forward, and the orderly course of
justice measured in terms of the simplifying or complicating
of issues, proof, and questions of law which could be
expected to result from a stay.” Lockyer v. Mirant
Corp., 398 F.3d 1098, 1110 (9th Cir. 2005) (citation
omitted). A court must “balance the length of the stay
against the strength of the justification given for
it.” Yong v. I.N.S., 208 F.3d 1116, 1119 (9th
Cir. 2000). “If a stay is especially long or its term
is indefinite, ” a court should “require a
greater showing to justify it.” Id The party
proposing a stay bears the burden of proving a stay is
warranted under the discretionary Landis factors.
Clinton v. Jones, 520 U.S. 681, 708 (1997).