Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02315-J-JMA

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1 EDMUND G. BROWN JR. Attorney General of the State of California 2 DANE R. GILLETTE Chief Assistant Attorney General 3 GARY W. SCHONS Senior Assistant Attorney General 4 RHONDA CARTWRIGHT-LADENDORF Supervising Deputy Attorney General 5 STACY TYLER Deputy Attorney General 6 State Bar No. 216355 110 West A Street, Suite 1100 San Diego, CA 92101 7 P.O. Box 85266 San Diego, CA 92186-5266 8 Telephone: (619) 645-2446 Fax: (619) 645-2581 9 Email: [email protected] 10 Attorneys for Respondent 11 12 13 14 15 16 17 18 19 20 21 Respondent submits this opposition to Petitioner Stuart Pressly's ("Petitioner") "Stay and v. F.B. HAWS, Warden, Respondent. STUART S. PRESSLY, Petitioner, 07cv2315 J (JMA) RESPONDENT'S OPPOSITION TO PETITIONER'S MOTION TO STAY THE PROCEEDINGS The Honorable Jan M. Adler IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

22 Abeyance For Leave to Amend," or Motion to Stay the Proceedings Pending Exhaustion of State 23 Court Remedies. As explained below, this Court should deny the motion because Petitioner has 24 failed to make the showing required by Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 25 2d 440 (2005). 26 27 ARGUMENT The Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. § 2254)

28 ("AEDPA") governs this case because the Petition was filed after April 24, 1996. See 28 U.S.C.
Respondent's Opposition to Petitioner's Motion to Stay the Proceedings Case No. 07cv2315 J (JMA)

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1 § 2254; Lindh v. Murphy, 521 U.S. 320, 327, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997); Campbell 2 v. Rice, 408 F.3d 1166, 1169 (9th Cir. 2005) (en banc). An important purpose of the AEDPA is to 3 reduce delay in execution of sentence and promote finality of judgment. See Rhines, 544 U.S. at 4 276. Thus, petitioners are required to bring their claims to federal court within a year after the State 5 court judgment becomes final. 28 U.S.C. § 2244(d); Ferguson v. Palmateer, 321 F.3d 820 (9th Cir. 6 2003). Of course, the petitioner is limited in federal court to those claims he properly exhausted in 7 State court within the limitations period. 28 U.S.C. § 2254(b); Jackson v. Roe, 425 F.3d 654, 657-58 8 (9th Cir. 2005). 9 To circumvent this rule, habeas petitioners who fail to timely present claims to the State

10 court often will move the federal court to stay the proceedings and hold a pending petition in 11 abeyance while they return to State court to raise ­ usually in the first instance by means of an 12 extraordinary writ, which the State's courts will not entertain absent extraordinary circumstances 13 ­ the unexhausted claims. See, e.g., Exhibit A to Petitioner's Motion to Stay (Feb. 15, 2008, Super. 14 Ct. Order Denying Pet. for Writ of Habeas Corpus) at 2 ("matters that could have been but were not 15 raised on appeal are not cognizable on habeas corpus in the absence of special circumstances"). 16 While the district court has discretion to grant such a "stay-and-abey" motion, that discretion applies 17 "only in limited circumstances." Rhines, 544 U.S. at 277, 125 S. Ct. at 1535. As the United States 18 Supreme Court has explained, "[s]tay and abeyance, if employed too frequently, has the potential 19 to undermine [the AEDPA]"; accordingly, staying pending habeas proceedings is appropriate "only 20 . . . when the district court determines there was good cause for the petitioner's failure to exhaust 21 his claims first in state court." Id. at 277-78 (emphasis added). Moreover, the petitioner must show 22 that the unexhausted claims are "potentially meritorious." Rhines, 544 U.S. at 276-77, 125 S. Ct. 23 at 1535. 24 Here, Petitioner has done neither. Indeed, even if one were to assume the new and

25 additional claims were potentially meritorious, Petitioner does not bother to explain his delay at all, 26 let alone provide good cause for it. He simply avers that he filed a writ petition in superior court in 27 December of last year and requests this Court stay the current proceedings. Such a conclusory 28 demand does not meet the standard announced in Rhines.
Respondent's Opposition to Petitioner's Motion to Stay the Proceedings Case No. 07cv2315 J (JMA)

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On the other hand, it is not surprising Petitioner offers no reason for his failure to

2 diligently pursue his claims in State court because he likely would be hard-pressed to find one. 3 Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1087-1088 (9th Cir. 2002) (good cause 4 requires showing of diligence); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-1295 (9th Cir. 5 2000) (same); United States v. Te Selle, 34 F.3d 909, 910-911 (9th Cir. 1994); Johnson v. Mammoth 6 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992); Fimbres v. United States, 833 F.2d 138, 139 7 (9th Cir. 1987); Townsel v. Contra Costa County, 820 F.2d 319, 320-321 (9th Cir. 1987); Wei v. 8 State of Hawaii, 763 F.2d 370, 372 (9th Cir. 1985). All six of the new claims, which challenge the 9 sufficiency of the evidence, the admission of evidence, and the effectiveness of counsel, are based 10 on facts apparent at the time of trial, or at the very latest by the time of appeal, and therefore 11 redressable by direct appeal or contemporaneous post-conviction writ petition. Petitioner did not 12 present these claims in those proceedings, but instead waited until December 17, 2007 ­ after he 13 already had filed the Petition in this Court ­ to present the claims by means of an extraordinary writ 14 petition to the State's lowest court. Even then, he did not request a stay from this Court until May 15 19, 2008, by which time Respondent already had filed its Answer. This cannot constitute diligence. 16 Petitioner has not established good cause for his failure to diligently pursue in State court

17 the claims he seeks to add to his Petition at the eleventh hour. Accordingly, this Court should deny 18 the motion to stay the proceedings. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 ///
Respondent's Opposition to Petitioner's Motion to Stay the Proceedings Case No. 07cv2315 J (JMA)

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CONCLUSION For the foregoing reasons, Respondent respectfully requests the Court deny Petitioner's

3 motion to stay the proceedings. 4 5 6 7 8 9 10 11 12 13 14 15 16 ST:mgs
80259421.wpd

Dated: July 16, 2008 Respectfully submitted, EDMUND G. BROWN JR. Attorney General of the State of California DANE R. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General RHONDA CARTWRIGHT-LADENDORF Supervising Deputy Attorney General

s/Stacy Tyler STACY TYLER Deputy Attorney General Attorneys for Respondent

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SD2007803271

Respondent's Opposition to Petitioner's Motion to Stay the Proceedings

Case No. 07cv2315 J (JMA)

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