Fuller v. Matteson

• Court: District Court, N.D. California
• Decided: May 11, 2020
• Docket: 3:20-cv-01878
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 LARRY DARNELL FULLER, Case No. 20-cv-01878-JD

8 Petitioner, ORDER GRANTING MOTION TO 9 v. STAY AND ADMINISTRATIVELY CLOSING CASE 10 GISELLE MATTESON, Re: Dkt. No. 2 Respondent. 11

12 13 Larry Fuller, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 14 28 U.S.C. § 2254. He also applied for leave to proceed in forma pauperis. Petitioner was 15 convicted in Alameda County, which is in this district, so venue is proper here. See 28 U.S.C. § 16 2241(d). Petitioner has paid the filing fee. 17 BACKGROUND 18 Petitioner was found guilty after a jury trial of one count of murder with the special 19 circumstance that the victim was killed to prevent his testimony. People v. Fuller, No. A149884, 20 2018 WL 492705, at *1 (Cal. Ct. App. Oct. 11, 2018). Petitioner was sentenced to a prison term 21 of life without the possibility of parole. Id. at 3. The California Court of Appeal affirmed the 22 conviction. Id. at 1. The California Supreme Court denied review. Petition at 3. 23 DISCUSSION 24 STANDARD OF REVIEW 25 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 26 custody pursuant to the judgment of a State court only on the ground that he is in custody in 27 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Rose v. 1 requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An application for a federal writ of 2 habeas corpus filed by a prisoner who is in state custody pursuant to a judgment of a state court 3 must “specify all the grounds for relief available to the petitioner ... [and] state the facts supporting 4 each ground.” Rule 2(c) of the Rules Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ 5 pleading is not sufficient, for the petition is expected to state facts that point to a ‘real possibility 6 of constitutional error.’” Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 7 688, 689 (1st Cir. 1970)). 8 LEGAL CLAIMS 9 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court erred in 10 admitting evidence of a prior crime to show motive; and (2) trial counsel and appellate counsel 11 were ineffective for failing to challenge the evidence that was obtained from his cellphone in 12 violation of the Fourth Amendment.1 13 It appears that the first claim is exhausted, but the second claim has not been exhausted. 14 Petitioner also requests a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the 15 United States Supreme Court found that a stay and abeyance of a mixed federal petition should be 16 available only in the limited circumstance that good cause is shown for a failure to have first 17 exhausted the claims in state court, that the claim or claims at issue potentially have merit and that 18 there has been no indication that petitioner has been intentionally dilatory in pursuing the 19 litigation. Rhines, supra, at 277-78. 20 Petitioner has shown good cause for his failure to exhaust the claims before filing this 21 action, the claim does not appear patently meritless, and there does not appear to be any 22 intentionally dilatory litigation tactic by petitioner. See Rhines, 544 U.S. at 277-78. Petitioner is 23 informed that before he may challenge either the fact or length of his confinement in a habeas 24 petition in this Court, he must present to the California Supreme Court any claims he wishes to 25 raise in this Court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding every claim raised in 26

27 1 Sixth Amendment claims based on incompetent representation by counsel with respect to Fourth 1 federal habeas petition must be exhausted). 2 CONCLUSION 3 1. Petitioner’s motion for a stay (Docket No. 2) is GRANTED and this case is STAYED 4 || to allow petitioner to present his unexhausted claim in state court. If petitioner is not granted relief 5 in state court, he may return to this Court and ask that the stay be lifted. 6 2. The stay is subject to the following conditions: 7 (1) Petitioner must diligently pursue his state court habeas proceedings; and 8 (2) Petitioner must notify this Court within thirty days after the state courts have completed 9 their review of his claim or after they have refused review of his claim. 10 If either condition of the stay is not satisfied, this Court may vacate the stay and act on this 11 petition. See Rhines, 544 U.S. at 278 (district court must effectuate timeliness concerns of 12 || AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.”’). 13 The Clerk shall administratively close this case. The closure has no legal effect; it is 14 || purely a statistical matter. The case will be reopened and the stay vacated upon notification by 15 petitioner in accordance with section (2) above. a 16 IT IS SO ORDERED. 2 17 |) Dated: May 11, 2020

19 JAMES ATO 20 United St@tes District Judge 21 22 23 24 25 26 27 28