(HC) Thomas v. Allen

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 LACHANCE L. THOMAS, Case No. 1:23-cv-00690-EPG-HC

11 Petitioner, ORDER DENYING PETITIONER’S MOTION TO STAY 12 v. (ECF No. 33) 14 Respondent.

15 16 Petitioner Lachance L. Thomas is a state prisoner proceeding pro se with a petition for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 18 On August 8, 2023, the Court granted Petitioner’s motion to stay the proceedings 19 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). (ECF No. 18.) On September 13, 20 2023, Petitioner filed a second amended petition (“SAP”) containing only exhausted claims. 21 (ECF No. 19.) 22 On November 8, 2023, the Court stayed the federal habeas proceedings pending 23 exhaustion of state remedies and ordered Petitioner to file an initial status report within thirty 24 days and every ninety days thereafter. (ECF No. 20.) The order forewarned Petitioner that failure 25 to comply with the status report requirement will result in the Court vacating the stay. (Id. at 2.1) 26 Petitioner filed an initial status report on December 14, 2023, (ECF No. 21), but 27 thereafter failed to timely file subsequent status reports. The Court ordered multiple orders to 1 show cause, to which Petitioner responded and informed the Court of the status of his state court 2 proceedings. (ECF Nos. 22, 23, 25, 26.) Thus, the orders to show cause were discharged. (ECF 3 Nos. 24, 27.) 4 On December 18, 2024, the Court issued an order to show cause why the stay should not 5 be vacated given over ninety days passed without a subsequent status report. (ECF No. 28.) As 6 no response was filed, on February 24, 2025, the Court vacated the stay and ordered Respondent 7 to file a response to the SAP. (ECF No. 29.) 8 On March 28, 2025, Petitioner filed the instant motion to stay wherein he requests the 9 Court to keep the stay in effect because unexhausted claims are still pending in the state courts. 10 (ECF No. 33.) On April 10, 2025, Respondent filed an opposition to the motion, arguing that “a 11 stay would be pointless” because “Petitioner’s state court effort is devoted solely to a claim of 12 statutory entitlement to resentencing” and “he ‘could never bring a pure statutory-error claim in 13 federal habeas.’” (Id. at 2 (quoting Jones v. Hendrix, 599 U.S. 465, 490 (2023)). 14 In support of his assertion that unexhausted claims are still pending in the state courts, 15 Petitioner attached a letter from the California Court of Appeal, Fifth Appellate District 16 regarding Case No. F088914/Fresno County Superior Court No. F15904751. (ECF No. 33 at 2.) 17 The letter states that the opening brief was due on February 10, 2025, but that briefing is stayed 18 pending appointment of counsel. (Id.) Respondent has filed a copy of the 2024 petition for 19 resentencing pursuant to California Penal Code section 1172.6 filed by Petitioner in the Fresno 20 County Superior Court No. F15904751. (ECF No. 34-3 at 392.) That petition was denied on 21 October 21, 2024. (Id. at 398.) On November 4, 2024, Petitioner filed a notice of appeal. (Id. at 22 400.) According to the docket sheet of California Court of Appeal, Fifth Appellate District Case 23 No. F088914, Petitioner is appealing the October 21, 2024 denial of his petition for resentencing. 24 (Id. at 436.) 25 Whether Petitioner is entitled to resentencing pursuant to California Penal Code section 26 1172.6 is an issue of state law that is not cognizable in federal habeas corpus. See Wilson v. 27 Corcoran, 562 U.S. 1, 5 (2010) (per curiam) (“[I]t is only noncompliance with federal law that 1 | Estelle v. McGuire, 502 U.S. 62, 67 (1991) (“We have stated many times that ‘federal habeas 2 | corpus relief does not lie for errors of state law.’” (quoting Lewis v. Jeffers, 497 U.S. 764, 780 3 | (1990))). Accordingly, the Court agrees with Respondent that a stay is not warranted here 4 | because the unexhausted claim Petitioner is pursuing in state court is not cognizable in federal 5 | habeas. 6 Based on the foregoing, the Court HEREBY ORDERS that: 7 1. Petitioner’s motion to stay (ECF No. 35) is DENIED; and 8 2. Within thirty (30) days of the date of service of this order, Petitioner may file a traverse. 9 11} Dated: _May 30, 2025 □□□ hey — 2 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28