Opinion
Civil No. 05cv1510 LAB (WMc).
March 30, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: 1) DENYING MOTION TO DISMISS 2) GRANTING MOTION FOR STAY AND ABEYANCE
On July 27, 2005, Petitioner John Scott McClintock ("Petitioner"), a state prisoner proceeding pro se, filed a federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Warden James Yates and Bill Lockyer ("Respondents") admit that all four grounds for habeas relief presented in the Petition have been exhausted in state court. However, on August 19, 2005, Petitioner filed a habeas petition in the California Supreme Court (Case No. S136618), alleging new claims of ineffective assistance of counsel and prosecutorial misconduct. Respondents contend that these new claims have not yet been exhausted in state court.
Currently before the Court is Respondents' Motion to Dismiss the Petition or, in the alternative, to hold the Petition in abeyance pending the exhaustion of the additional claims in state court. (Doc. Nos. 10-11.) Petitioner has filed an opposition. (Doc. No. 12.) The Court submits this Report and Recommendation to United States District Judge Larry A. Burns pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.3 of the United States District Court for the Southern District of California.
The Court has considered the Motion, Petitioner's Response and Memorandum of Points and Authorities, as well as all the supporting documents submitted by the parties. Based upon the documents and evidence presented in this case, and for the reasons set forth below, the Court recommends that the Motion to Dismiss be DENIED and that the Motion for Stay and Abeyance be GRANTED.
BACKGROUND
Petitioner was convicted in 2002 of eight counts of committing a lewd and lascivious act upon a child under fourteen years of age (Cal. Penal Code § 288(a)), three counts of molesting a minor (Cal. Penal Code § 647.6(a)), one count of petty theft (Cal. Penal Code § 484), three counts of committing a lewd and lascivious act upon a child fourteen or fifteen years of age (Cal. Penal Code § 288(c)(1)), and fifteen counts of possessing matter depicting a minor in sexual conduct (Cal. Penal Code § 311.11(a)). (Clerk's Tr. at 567-604.) On January 9, 2003, Petitioner was sentenced to two consecutive terms of fifteen years to life. (Clerk's Tr. at 607-08.)On January 17, 2003, Petitioner filed a notice that he would appeal his conviction. (Clerk's Tr. at 506.) On June 21, 2004, the California Appellate Court affirmed the conviction. People v. McClintock, No. D041553, 2004 Cal. App. LEXIS 5831 (Cal.App.Ct. June 21, 2004).
On September 1, 2004, the California Supreme Court denied Petitioner's petition for review. People v. McClintock, No. S126692, 2004 Cal. LEXIS 8320 (Cal. Sept. 1, 2004).
On July 28, 2005, Petitioner filed the instant federal Petition claiming: 1) the trial court erroneously allowed evidence of other offenses which allegedly caused spillover and created prejudice; 2) the trial court erroneously admitted expert testimony that prejudicially profiled appellant; 3) Petitioner was denied the right to participate in his defense because he was inflicted with active hepatitis, dehydration, and malnutrition; and 4) the sentencing of thirty years to life amounts to cruel and unusual punishment. (Pet. at 6-9).
On August 19, 2005, Petitioner filed a habeas petition in the California Supreme Court (Case No. S136618) alleging new claims of ineffective assistance of counsel and prosecutorial misconduct. The case remains pending in the California Supreme Court.
ARGUMENTS
A. Respondents' Arguments
Respondents have filed a Motion to Dismiss alleging Petitioner is not entitled to habeas relief because he has a petition for relief pending in state court. (P. A. in Support of Mot. to Dismiss at 3.) Respondents contend that, because Petitioner has a pending state petition, any federal decision would require the Court to interfere with ongoing proceeding in the state court. ( Id.) Respondents argue that the abstention doctrine established in Younger v. Harris, 401 U.S. 37 (1971), requires the Court to abstain from considering Petitioner's habeas petition and to dismiss the case. ( Id.)
Respondents claim that abstention is appropriate because the Younger requirements are satisfied in the present case. ( Id. at 4.) Respondents allege that: 1) State proceedings are on-going; 2) the state has an adequate interest in the proceedings; and 3) Petitioner has an adequate state forum in which to pursue his federal claims. ( Id.)
Alternatively, Respondents request the Court hold the exhausted Petition in abeyance while Petitioner exhausts his other claims in state court. ( Id. at 5.) Further, Respondents request that if the Motion for stay and abeyance is granted, that the Court also order Petitioner to file an amended petition within thirty days of the resolution of the state proceedings. ( Id.)
B. Petitioner's Response
In his response, Petitioner does not address the Motion to Dismiss, rather, he states he sent a Motion for Stay and Abeyance that was never received by the Court; he now requests that such motion be granted. (Response to Mot. to Dismiss at 2.)
STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") "worked substantial changes to the law of habeas corpus." Moore v. Calderon, 108 F.3d 261, 263 (9th Cir. 1997). As amended by AEDPA, 28 U.S.C. § 2254(b)(1)(A) now reads: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State." "An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state." 28 U.S.C.A. § 2254(b)(2).
The exhaustion of available state judicial remedies is generally a prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). As a matter of federal-state comity, federal courts generally do not consider a claim in a habeas corpus proceeding until the state courts have had an opportunity to act upon the claim. Rose, 455 U.S. at 515. The exhaustion requirement assures the state courts of the "initial opportunity to pass upon and correct alleged violations of its prisoners federal rights." Picard v. Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). The exhaustion requirement also serves "the federal interest in economizing scarce federal judicial resources." Jennison v. Goldsmith, 940 F.2d 1308, 1311 (9th Cir. 1991).
DISCUSSION
Respondents contend that, because Petitioner has a pending state petition, a decision on the habeas Petition would require the Court to interfere with an ongoing state proceeding. (P. A. in Support of Mot. to Dismiss at 4.) Respondents argue that the Younger abstention doctrine requires the Court to dismiss the Petition. Id.
In Younger v. Harris, 401 U.S. 37 (1971), the Supreme Court held that federal courts should not enjoin pending state criminal prosecutions absent extraordinary circumstances. The Court based its decision on the established doctrine that a court of equity should not interfere with a state criminal prosecution when the moving party has an adequate remedy available and would not suffer irreparable injury. Id. at 43-44. Based on principles of equity and comity, the court stated that "a proper respect for state functions" generally requires a federal court to decline to hear such a case. Id. at 44. Abstention is appropriate if the state proceedings are (1) on-going; (2) implicate important state interests; and (3) afford the petitioner an adequate opportunity to raise federal questions. Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001). However, abstention is not always appropriate.
"The procedures followed by a court when abstaining from a case are largely based on one factor: whether the parties may return to federal court after the conclusion of the required state proceedings. Where abstention does not merely postpone federal review but precludes it, the federal court must dismiss the case. See Cherminsky, Federal Jurisdiction at 707. On the other hand, where the parties may return to federal court after the state court litigation, the federal court merely stays its proceedings. Id. In the context of a habeas case, a petitioner may return to federal court after exhausting his/her state court remedies; consequently a procedure parallel to that employed in the abstention context would call for staying proceedings pending exhaustion. Furthermore, this abstention precedent demonstrates that the doctrine of comity is not necessarily offended by staying proceedings pending a comity-required state court proceeding."Ashmus v. Calderon, 977 F.Supp. 987, 994 (N.D. Cal. 1997).
Here, the three requirements of the Younger abstention doctrine have not been satisfied. The critical question in analyzing the first prong of the Younger doctrine is not whether the state court proceedings are still on-going, but whether the state proceedings were underway before initiation of the federal proceedings. Kitchens v. Bowen, 825 F.2d 1337, 1341 (9th Cir. 1987). In the instant case, Petitioner filed his state petition for writ of habeas corpus in state court after filing his federal Petition. (Case No. S136618.) Thus, Petition's state proceedings were not on-going within the meaning of the Younger doctrine.
Further, it is not clear that Petitioner would have an adequate state forum in which to pursue his federal claims if the Court were to dismiss the federal Petition. Respondents argue that Petitioner does have an adequate state forum to pursue his federal claims because the state petition and the federal Petition both contain the same grounds for relief. (P. A. in Support of Mot. to Dismiss at 4.) Respondents argue that Petitioner's federal and state petitions are the same because they both allege violations of Due Process and the Sixth Amendment on different grounds. Id.
The Court is not convinced by Respondents' arguments that the federal and state claims are the same. In the federal Petition, Petitioner alleges that (1) the trial court erroneously allowed evidence of other offenses which caused spillover and created prejudice; (2) the trial court erroneously admitted expert testimony that prejudicially profiled appellant; (3) Petitioner was denied the right to participate in his defense because he was inflicted with active hepatitis, dehydration, and malnutrition; and 4) the sentencing of thirty years to life amounts to cruel and unusual punishment. (Pet. at 6-9). However in his subsequent state petition, Petitioner alleges claims of ineffective assistance of counsel and prosecutorial misconduct. The Court does not find the state claims and the federal claims to be the same and thus does not find that the requirements of the Younger doctrine to be satisfied.
Moreover, the Court finds that abstention is not appropriate because Petitioner may not return to federal court after he has exhausted his state claims, and thus the circumstances call for the Court to hold the federal Petition in abeyance, rather than dismiss.
If the instant Petition is dismissed, the statute of limitations provided for in 28 U.S.C. § 2244(d) would bar Petitioner from refiling a new habeas petition after all state remedies have been exhausted, unless tolling applies. Petitioner's one-year statute of limitation began to run August 28, 2004, when his time to seek certiorari in the United States Supreme Court expired. Respondents concede that the federal Petition was timely because it was filed within the one-year statute of limitations. (P. A. in Support of Mot. to Dismiss at 5.) However, the one-year statute of limitation has passed.
See Bunney v. Mitchell, 262 F.3d 973, 974 (9th Cir. 2001) (a denial of habeas petition within the California Supreme Court is not final for 30 days).
Respondents concede that only 306 days of the one year statute of limitations has passed. (P. A. in Support of Mot. to Dismiss at 5.)
In light of the fact that an outright dismissal will render it unlikely for Petitioner to return to court, granting the request to hold the exhausted Petition in abeyance while Petitioner exhausts his other claims in state court is appropriate. See Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003); see also Olvera v. Gliurbino, 371 F.3d 569, 574 (9th Cir. 2004) (finding an abuse of discretion where a federal court failed to grant a stay when the petitioner could not have exhausted his claims and returned to federal court within the AEDPA's deadline). Accordingly, the Court recommends that Respondents' Motion to Dismiss be DENIED and Motion for Stay and Abeyance be
GRANTED.
Respondents request that the Court order Petitioner, if he intends to amend his Petition with new claims, to file an Amended Petition within 30 days of the denial of his state petition. (P. A. in Support of Mot. to Dismiss at 5). The Court finds that thirty days is sufficient time for Petitioner to return to federal court following the final action by the state courts. See Kelly, 315 F.3d at 1071. Following final action by the state courts, the Court recommends the Petitioner be allowed thirty days within which to file a motion for leave to amend the instant Petition to include the newly exhausted claims. Failure to do so will result in the Court vacating the stay nunc pro tunc to the date of this order. Kelly, 315 F.3d at 1071.
CONCLUSION AND RECOMMENDATION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that the court issue an Order: 1) DENYING Respondents' Motion to Dismiss, and 2) GRANTING Respondents' Motion for Stay and Abeyance to allow Petitioner time to exhaust his state claims.
IT IS ORDERED that no later than April 21, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to the Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections be filed with the Court and served on all parties no later than May 8, 2006. The parties are advised that failure to file objections within the specified time may result in a waiver of the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); see also Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
IT IS SO ORDERED.