Simpson v. Moore

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIONTE JAMAL SIMPSON, Case No.: 21cv1763-CAB (NLS)

12 Petitioner, REPORT AND 13 v. RECOMMENDATION REGARDING PLAINTIFF’S MOTION FOR STAY 14 MOORE, AND ABEYANCE 15 Respondent. [ECF No. 5] 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a Petition 18 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, raising two claims and alleging 19 that he has exhausted state court remedies. ECF No. 1 at 6-7. Before the Court now is 20 Petitioner’s Motion for Stay and Abeyance. ECF No. 5. In his motion, Plaintiff identifies 21 four additional claims he wishes to raise in this Court and states that he was advised by a 22 law firm to seek a stay and abeyance in this case while he returns to state court to exhaust 23 those claims. Id. at 2. 24 In response to the motion, the Court ordered additional briefing from Petitioner and 25 a response from Respondent. ECF No. 7. The order requested that Petitioner file additional 26 briefing regarding whether he sought the “stay and abeyance” procedure under Rhines v. 27 Weber, 544 U.S. 269, 277-78 (2005), or the “withdrawal and abeyance” procedure under 28 1 King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009). Id. Petitioner filed a response and 2 stated that he was seeking the “withdrawal and abeyance” procedure under King. ECF No. 3 12. The order further requested that Respondent file a response to Petitioner’s request. 4 Respondent filed a non-opposition to Petitioner’s motion, stating that he does not oppose 5 the stay, but reserves the right to oppose a future motion to amend the Petition to reassert 6 the new claims on the basis that they do not relate back to the exhausted claims in the 7 Petition and are thus, untimely. ECF No. 13. 8 Under the “withdrawal and abeyance” procedure, (1) a petitioner amends his petition 9 to delete any unexhausted claims; (2) asks the Court to stay the proceedings and hold the 10 fully-exhausted petition in abeyance while they return to state court to exhaust the 11 unexhausted claims they wish to bring; and (3) the petitioner then later amends the petition 12 to re-attach the newly-exhausted claims to the original petition. King v. Ryan, 564 F.3d 13 1133, 1135 (9th Cir. 2009). Under this procedure, Petitioner is not required to demonstrate 14 good cause for his failure to timely exhaust. Id. at 1141. However, the petitioner will be 15 able to amend his newly exhausted claims only if they are either timely under the statute 16 of limitations or “relate back” to timely claims in the fully-exhausted petition, that is, share 17 a “common core of operative facts” with the previously exhausted claims. Id. at 1142-43, 18 quoting Mayle v. Felix, 545 U.S. 644, 659 (2005). 19 Petitioner’s original petition asserts two claims: (1) the trial court erred by 20 permitting an instruction for CALCRIM 418, which allowed the jury to convict on an 21 incorrect burden of proof; and (2) there was insufficient proof to convict him, where 22 Petitioner did not deny being at the residence of the murder but the only proof of him being 23 involved in the altercation was testimony given by the accomplice. ECF No. 1 at 6-7. In 24 Petitioner’s motion for stay and abeyance, he does not explain the basis for the unexhausted 25 claims, but attaches a letter from his counsel, which appears to outline the basis for at least 26 some of the claims. ECF No. 12 at 3-14. At least some of these claims appear to be related 27 to the testimony procured from the accomplice against Petitioner. Id. at 8-10. 28 1 Furthermore, Respondent does not oppose this request, stating that he reserves the 2 right to oppose a future motion to amend the Petition to reassert the new claims on the basis 3 that they do not relate back to the exhausted claims in the Petition. At this juncture, the 4 Court finds that it does not need to decide the ultimate question of whether the new 5 unexhausted claims relate back. See Eubanks v. Espinoza, No. 17CV0016 BEN (MDD), 6 2019 WL 4889734, at *5 (S.D. Cal. Oct. 3, 2019) (“The Court also finds it unnecessary to 7 resolve [the relation back issue] now. After the unexhausted claims are withdrawn and 8 exhausted, the parties are free to raise and brief such procedural matters, including but not 9 limited to timeliness, relation back, procedural bars and equitable tolling.”). Under similar 10 procedure postures where the Respondent does not oppose, courts within this district have 11 granted the stay and abeyance. See id. (“After initial cursory review of Petitioner's 12 timeliness argument [], it appears that some of the unexhausted claims and/or subclaims 13 currently contained in the mixed petition may ultimately relate back to timely claims. 14 Additionally, in view of Respondent’s lack of opposition to a stay under Kelly/King [], it 15 appears unnecessary to conclusively resolve this matter at the present time.”); Benavides 16 v. Montgomery, No. 21-CV-1186-BAS-RBM, 2022 WL 102204, at *5 (S.D. Cal. Jan. 7, 17 2022), report and recommendation adopted, No. 21-CV-1186-BAS-RBM, 2022 WL 18 347611 (S.D. Cal. Feb. 4, 2022) (granting unopposed stay and abeyance request). Thus, 19 given the nature of exhausted and unexhausted claims, coupled with the non-opposition to 20 this motion, the Court RECOMMENDS that the motion for stay and abeyance be 21 GRANTED pursuant to King. 22 This Report and Recommendation is submitted to the United States District Judge 23 assigned to this case, under 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1(c) of the 24 United States District Court for the Southern District of California. Any party may file 25 written objections with the Court and serve a copy on all parties on or before July 5, 2022. 26 The document should be captioned “Objections to Report and Recommendation.” Any 27 reply to the Objections shall be served and filed on or before July 12, 2022. The parties 28 are advised that failure to file objections within the specific time may waive the right to 1 || appeal the District Court's Order. Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir. 1991). 2 ||As noted above, Respondent has filed a non-opposition to Petitioner’s motion. If 3 Respondent wishes to waive the objections period, he may file a joint stipulation to waive 4 ||the objections period, to allow the Court to rule upon this Report and Recommendation 5 || without further delay. 6 IT IS SO ORDERED. 7 Dated: June 28, 2022 Mite. Lom 9 Hon. Nita L. Stormes 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28