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Nunez v. Gibson

United States District Court, C.D. California, Western Division

September 4, 2019

JORGE NUNEZ, Petitioner,
v.
CONNIE GIBSON, Respondent.

          ORDER ACCEPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ANDRÉ BIROTTE JR. UNITED STATES DISTRICT JUDGE

         Under 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 (“Second Motion to Stay”). The Court has engaged in a de novo review of those portions of the Report and Recommendation to which objections have been made.

         For the reasons below, the Court denies Petitioner's Motion to Stay and accepts the report, findings, and recommendations of the Magistrate Judge.

         I. BACKGROUND

         In 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.

         In 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.

         Charles 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.

         According 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.[1]

         On 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.[2]Khoury argued that Urban should have argued that Petitioner's sentence violated the Eighth Amendment's proscription against cruel and unusual punishment. See id.

         On 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.[3] 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.

         II. LAW

         United 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).

         III. ...


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