Summary
attempting to retain counsel not extraordinary circumstance warranting equitable tolling
Summary of this case from Wolf v. NdohOpinion
CV 05-2352-PHX MHM (JM).
February 10, 2009
ORDER
Currently before the Court are Petitioner's Motion to Stay Habeas Corpus Proceedings Pending Appeal (Dkt. #41) and Magistrate Judge Jacqueline Marshall's accompanying Report and Recommendation (Dkt. #56).
I. STANDARD OF REVIEW
II. PROCEDURAL HISTORY
de novo. See 28 U.S.C. § 636de novo See United States v. Reyna-Tapia328 F.3d 11141121see also28 U.S.C. § 636Jones v. Wood207 F.3d 557562 28 U.S.C. § 2254
Petitioner then filed Objections to the Report and Recommendation, raising new allegations of a Brady violation for failure to disclose felony convictions of state witnesses and factual innocence with respect to his state conviction on one count of child abuse. (Dkt. #37). In addition, Petitioner filed a Motion for a Procedural Order to authorize Petitioner to use his personal typewriter to prepare documents with respect to this litigation due to his diagnosis of osteoarthritis and degenerative joint disease (Dkt. #36). Petitioner also filed a Motion to Stay Habeas Corpus Proceedings Pending Appeal (Dkt. #41).
On September 16, 2008, the Court adopted Magistrate Judge Marshall's Report and Recommendation in part, denying both Petitioner's Motion to Conduct Limited Discovery and Petitioner's due process claim with respect to the Arizona Court of Appeal's refusal to remand, and granting Petitioner's unopposed Motion for a Procedural Order. (Dkt. #44). The Court withheld ruling on the remainder of Judge Marshall's Report and Recommendation and directed Respondents to address Petitioner's newly-raised allegations, including whether those allegations are sufficient to warrant granting Petitioner's Motion to Stay. (Id.). The Court requested a supplemental Report and Recommendation from Judge Marshall on the merits of Petitioner's Motion to Stay. (Id.).
On September 19, 2008, Respondents requested that the Court stay the Order granting Petitioner's Motion for Procedural Order to use his personal typewriter pending an Objection by the Arizona Department of Corrections. (Dkt. #45). The Court granted that Motion on September 26, 2008. (Dkt. #47). The Department of Corrections filed their Objection on October 27, 2008. (Dkt. #48). That issue remains pending before the Court.
Respondents filed their response to Petitioner's newly-raised allegations of factual innocence and a Brady violation on October 31, 2008. (Dkt. #49). On December 5, 2008, Petitioner filed a Reply to that Response, a second Motion to Stay pending adjudication of Petitioner's unexhausted claims in state court, and a Reply to the Department of Correction's Objection to Petitioner's Motion for Procedural Order. (Dkt. #s 52-54).
After reviewing Respondents' Response to Petitioner's newly-raised allegations, the Court ordered Respondents to file a supplement brief addressing whether the Court should allow Petitioner to amend his Petition to state his alleged Brady violation as a free-standing claim and/or state a claim for ineffective assistance of counsel for failure to investigate the presence of drugs in Petitioner's daughter's system. (Dkt. #55). The Court also directed Respondents to address whether Petitioner would be entitled to a stay to present his claims to the state courts per Rhines v. Weber, 544 U.S. 269, 277 (2005). Respondents filed their supplemental response on January 12, 2009 (Dkt. #59), and Petitioner filed a Reply on January 23, 2009 (Dkt. #62).
On December 12, 2008, Magistrate Judge Marshall issued a Report and Recommendation that the Court deny Petitioner's original Motion to Stay Habeas Corpus Proceedings Pending Appeal. (Dkt. #41). Petitioner filed an Objection on January 21, 2009. (Dkt. #60). Then, on January 23, 2009, Petitioner filed a Motion to Amend Writ of Habeas Corpus. (Dkt. #61).
III. DISCUSSION
The instant Order addresses only Petitioner's Motion to Stay Habeas Corpus Proceedings (Dkt. #41) and Magistrate Judge Marshall's Report and Recommendation addressing that Motion (Dkt. #56).
In his Motion to Stay, Petitioner requests that his case be stayed so that his new counsel can "go back into State court to exhaust the factual innocence issues and raise Federal Constitutional arguments. . . . [because] Federal courts cannot consider habeas petitions containing both exhausted and/or unexhausted claims." (Dkt. #41, p. 2). In support of that contention, Petitioner cites the Court to Rhines v. Weber, 544 U.S. 269 (2005), which holds that, in limited circumstances, a federal district court has the discretion to stay a mixed habeas petition containing exhausted and unexhausted claims to allow the petitioner to present his unexhausted claims to the state court in the first instance, and then return to federal court for review of his perfected petition. In her Report and Recommendation, Magistrate Judge Marshall recommends that the Court deny the Motion to Stay because "Petitioner has not fully identified the purportedly unexhausted claim he seeks to raise in state court and, presuming it is one of factual innocence, it was not included in his pending Petition. . . . Moreover, without any specific information about the substance of the claim, the Court could not fairly evaluate it under the Rhines criteria. As such, there is no basis for a stay and abey order." (Dkt. #56, p. 2).
In his Objection to the Report and Recommendation, Petitioner reasserts his allegations that, among other things, he has discovered new evidence of factual innocence with respect to his conviction of one count of child abuse (Count 8), and that Petitioner's counsel were ineffective for not discovering such evidence. (Dkt. #60, pp. 2-3). Petitioner also states that he has found newly discovered evidence showing factual innocence with respect to his conviction for manufacture of dangerous drugs (Count 2). (Id., pp. 2-3). Petitioner then reiterates the position he took in his Motion that the Court should stay so that Petitioner can pursue his unexhausted claims in state court. (Id., p. 5). However, Petitioner fails to address the fact that these claims were not included in his original Petition for Writ of Habeas Corpus. Rule 2(c)(1) of the Rules Governing Section 2254 Cases in the United States District Courts clearly states that a Petition for Writ of Habeas Corpus must "specify all the grounds for relief available to the petitioner." As such, the Court must deny Petitioner's Motion to Stay Pending Appeal.
Nonetheless, the Court notes that Petitioner is not prejudiced by the denial of his original Motion to Stay. Still pending are Petitioner's second Motion to Stay, which also requests that the Court stay the current habeas action so that Petitioner can pursue unexhausted claims in state court (Dkt. #53), as well as Petitioner's Motion to Amend his Writ of Habeas Corpus (Dkt. #61). Therefore, when determining whether to allow Petitioner to amend his Petition for Writ of Habeas Corpus, the Court will also address Petitioner's second Motion to Stay and decide whether a stay is appropriate at that time.
Accordingly,
IT IS HEREBY ORDERED adopting the Magistrate Judge's Report and Recommendation (Dkt. #56) on Petitioner's Motion to Stay Habeas Corpus Proceedings Pending Appeal (Dkt. #41). Petitioner's Motion (Dkt. #41) is DENIED.
IT IS FURTHER ORDERED requesting that U.S. Magistrate Judge Jacqueline Marshall issue a Report and Recommendation on the issues and motions that remain pending in this action: (1) the Arizona Department of Corrections's Objection to the Court's granting Petitioner's Motion for a Procedural Order (Dkt. #s 36, 44, 48), (2) Petitioner's Motion to Stay (Dkt. #s 52, 55, 59, 62), and (3) Petitioner's Motion to Amend Writ of Habeas Corpus (Dkt. #61). The Court also requests that Judge Marshall report on whether the Court's decision to withhold ruling in part on her initial Report and Recommendation (Dkt. #44) should be deemed moot as a result of Petitioner's Motion to Amend.