Torres v. Kernan

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARIO TORRES, Case No. 20-cv-03159-PJH

8 Petitioner, ORDER GRANTING MOTION TO 9 v. STAY AND ADMINISTRATIVELY CLOSING CASE 10 SCOTT KERNAN, Re: Dkt. Nos. 8, 9 Respondent. 11

12 13 Petitioner, a former California prisoner, filed a pro se petition for a writ of habeas 14 corpus pursuant to 28 U.S.C. § 2254. The original petition was dismissed with leave to 15 amend and petitioner has filed a motion for a stay. 16 BACKGROUND 17 Petitioner states that he pled guilty on February 5, 2015, and was resentenced on 18 October 3, 2018, without his knowledge or consent. Petition at 7. He states that during 19 the resentencing, restitution was imposed. Id. According to 2015 the written plea 20 agreement, petitioner initialed that he understood that conviction on the underlying 21 charge would require him to pay restitution. Id. at 20. Petitioner is no longer in custody. 22 Id. at 1. 23 DISCUSSION 24 STANDARD OF REVIEW 25 This court may entertain a petition for writ of habeas corpus “in behalf of a person 26 in custody pursuant to the judgment of a State court only on the ground that he is in 27 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 1 heightened pleading requirements. McFarland v. Scott, 512 U.S. 849, 856 (1994). An 2 application for a federal writ of habeas corpus filed by a prisoner who is in state custody 3 pursuant to a judgment of a state court must “specify all the grounds for relief available to 4 the petitioner ... [and] state the facts supporting each ground.” Rule 2(c) of the Rules 5 Governing § 2254 Cases, 28 U.S.C. § 2254. “‘[N]otice’ pleading is not sufficient, for the 6 petition is expected to state facts that point to a ‘real possibility of constitutional error.’” 7 Rule 4 Advisory Committee Notes (quoting Aubut v. Maine, 431 F.2d 688, 689 (1st Cir. 8 1970)). 9 LEGAL CLAIM 10 As grounds for federal habeas relief petitioner states that the order to pay 11 restitution violated his rights under the Fifth, Eighth and Fourteenth Amendments. 12 Petitioner seeks a stay to exhaust his claims and he notes the difficulties due to his pro 13 se status and the current public health situation. 14 In light of petitioner’s pro se status and the difficulties in utilizing libraries due to 15 public health closures, the court finds that petitioner has demonstrated good cause for a 16 stay under Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the United States Supreme 17 Court found that a stay and abeyance of a mixed federal petition should be available only 18 in the limited circumstance that good cause is shown for a failure to have first exhausted 19 the claims in state court, that the claim or claims at issue potentially have merit and that 20 there has been no indication that petitioner has been intentionally dilatory in pursuing the 21 litigation. Rhines, supra, at 277-78. Liberally construing the motion, petitioner has shown 22 good cause for his failure to exhaust the claims before filing this action, the claims do not 23 appear patently meritless, and there do not appear to be any intentionally dilatory 24 litigation tactics by petitioner. 25 This case will be stayed for petitioner to exhaust the remaining claims. Petitioner 26 is informed that before he may challenge either the fact or length of his confinement in a 27 habeas petition in this court, he must present to the California Supreme Court any claims 1 he wishes to raise in this court. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding 2 every claim raised in federal habeas petition must be exhausted). 3 As noted in the court’s original screening order, it was not clear that petitioner 4 could bring this claim due to no longer being incarcerated. If plaintiff does not obtain 5 relief in state court, he still must address this issue for the case to continue. 6 Petitioner has also requested the appointment of counsel. The Sixth 7 Amendment's right to counsel does not apply in habeas corpus actions. Knaubert v. 8 Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). However, 18 U.S.C. § 3006A(a)(2)(B) 9 provides that in habeas cases, whenever “the court determines that the interests of 10 justice so require”, representation may be provided for any financially eligible person. 11 Petitioner has presented his claims adequately, and they are not particularly complex. 12 The interests of justice do not require appointment of counsel. 13 CONCLUSION 14 1. Petitioner’s motion to appoint counsel (Docket No. 9) is DENIED. Petitioner’s 15 motion for a stay (Docket No. 8) is GRANTED and this case is STAYED to allow 16 petitioner to present his unexhausted claims in state court. If petitioner is not granted 17 relief in state court, he may return to this court and ask that the stay be lifted. 18 2. The stay is subject to the following conditions: 19 (1) Petitioner must diligently pursue his state court habeas proceedings; and 20 (2) Petitioner must notify this court within thirty days after the state courts have 21 completed their review of his claim or after they have refused review of his claims. 22 If either condition of the stay is not satisfied, this court may vacate the stay and act 23 on this petition. See Rhines, 544 U.S. at 278 (district court must effectuate timeliness 24 concerns of AEDPA by placing “reasonable limits on a petitioner’s trip to state court and 25 back.”). 26 The Clerk shall administratively close this case. The closure has no legal effect; it 27 is purely a statistical matter. The case will be reopened and the stay vacated upon 1 3. Petitioner must keep the court informed of any change of address and must 2 comply with the court's orders in a timely fashion. Failure to do so may result in the 3 dismissal of this action for failure to prosecute pursuant to Federal Rule of Civil 4 Procedure 41(b). See Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (Rule 5 41(b) applicable in habeas cases). 6 IT IS SO ORDERED. 7 Dated: December 3, 2020 8 9 /s/ Phyllis J. Hamilton PHYLLIS J. HAMILTON 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27