Coleman v. Allison

Decision Date28 May 2015
Docket NumberCase No. LA CV 10–02343–VBF (RNB).
Parties Jofama COLEMAN, Petitioner, v. Kathleen ALLISON, Acting Warden, Respondent.
CourtU.S. District Court — Central District of California

Jesse Asher Gessin, Federal Public Defender's Office, Santa Ana, CA, for Petitioner.

James W. Bilderback, II, David Elgin Madeo, CAAG–Office of Attorney General, Los Angeles, CA, for Respondent.



Pursuant to 28 U.S.C. § 636, the Court has reviewed the pleadings, records on file herein, and the Supplemental Report and Recommendation of the United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Supplemental Report and Recommendation to which objections have been made. The Court accepts the findings and recommendations of the Magistrate Judge. IT THEREFORE IS ORDERED that (1) petitioner's Motion to Amend with respect to Grounds 10–21 of the proposed Amended Petition is denied; and (2) Judgment be entered dismissing this action with prejudice.


ROBERT N. BLOCK, United States Magistrate Judge.

This Supplemental Report and Recommendation is submitted to the Honorable Valerie Baker Fairbank, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California.


On March 31, 2010, petitioner filed a pro se Petition for Writ of Habeas Corpus by a Person in State Custody ("Pet.") herein. The Petition purported to allege six grounds for relief that, according to the Petition, had previously been exhausted in a Petition for Review to the California Supreme Court. The Petition included an attached brief ("Pet. Attach.") in support of petitioner's six grounds for relief.

Concurrently with the filing of the Petition, petitioner filed a "Motion to Stay Adjudication of Habeas Corpus Petition to Allow Petitioner to Properly Exhaust Unexhausted Federal Claims." The Motion to Stay listed nine additional ineffective assistance of trial counsel claims that petitioner indicated he wanted to raise herein, but were not yet properly exhausted.

Although petitioner stated in the Motion to Stay that his stay-and-abeyance request was being made pursuant to Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), under the Ninth Circuit's decision in King v. Ryan, 564 F.3d 1133 (9th Cir.), cert. denied, 558 U.S. 887, 130 S.Ct. 214, 175 L.Ed.2d 148 (2009), the Court's consideration of the motion to stay petitioner's fully exhausted petition was not governed by Rhines. Rather, petitioner's stay motion was governed by the stay and abeyance procedure approved in Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987–88 (9th Cir.), cert. denied, 525 U.S. 920, 119 S.Ct. 274, 142 L.Ed.2d 226 (1998), and Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir.2004), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir.2007). Thus, the fact that petitioner had not even purported to make the showing of good cause required under Rhines was not dispositive of petitioner's stay motion, since the Rhines "good cause" limitation does not apply to the "Kelly procedure." Under the Kelly procedure, a federal district court has the discretion to stay and hold in abeyance a fully exhausted petition in order to provide the petitioner with the opportunity to proceed to state court to exhaust his unexhausted claims. Then, once the claims have been exhausted in state court, the petitioner may return to federal court and amend his stayed federal petition to include the newly exhausted claims. See Kelly, 315 F.3d at 1070–71 ; see also Jackson v. Roe, 425 F.3d 654, 661 (9th Cir.2005) ; James v. Pliler, 269 F.3d 1124, 1126–27 (9th Cir.2001) ; Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir.2000), cert. denied, 533 U.S. 941, 121 S.Ct. 2576, 150 L.Ed.2d 739 (2001) ; Taylor, 134 F.3d at 987–88.1

Prior to ruling on petitioner's stay motion, the Court decided to afford respondent the opportunity to be heard. Accordingly, the Court ordered service of the Petition and petitioner's stay motion on respondent, and set a deadline for the filing of respondent's opposition (if any) to the stay motion.

In her ensuing opposition, respondent contended that petitioner's stay motion should be denied because, for statute of limitations purposes, the nine additional ineffective assistance of trial counsel claims that petitioner indicated in his stay motion he wanted to raise herein did not relate back to the exhausted claims alleged in the Petition, and a stay therefore would be futile. However, respondent was not contending that any of petitioner's unexhausted ineffective assistance of counsel claims currently was time barred. According to respondent, the one-year limitation period did not commence running until June 30, 2009. Consequently, it appeared that, when petitioner filed the first of his two pending California Supreme Court habeas petitions on February 1, 2010, five months of the limitation period still remained. Moreover, respondent had conceded that "the period of limitations appear[ed] to be tolled presently." Accordingly, unless the California Supreme Court expressly denied both pending habeas petitions for untimeliness, it appeared to the Court that petitioner would have five months from the denial of those petitions to amend his pending federal habeas petition to add any of the newly exhausted claims that currently were pending before the California Supreme Court.

While it was conceivable that, by the time petitioner sought leave to amend his pending federal habeas petition, the limitations period might have run with respect to one or more of the claims that petitioner was seeking leave to add, it could not be said with certainty as of the time the opposition was filed that a stay would be futile. Nor did it make any difference that petitioner's then pending California Supreme Court habeas petitions did not include all nine of the ineffective assistance of counsel claims that petitioner indicated in his stay motion he wanted to raise herein. Since the limitation period still had nearly two months to run, petitioner still had time to either add those claims to one of his pending California Supreme Court habeas petitions or file a new California Supreme Court habeas petition that included those claims.

Accordingly, the Court decided to exercise its discretion under Kelly with respect to petitioner's stay motion, by granting it on certain conditions that were specified in an Order issued on May 7, 2010. The Court stated in its Order that its granting of petitioner's motion was without prejudice to respondent opposing a later motion to amend by petitioner on the ground that one or more of the claims that petitioner was seeking to add was time barred.

On October 7, 2010 (proof of service date), petitioner constructively filed a document captioned "Motion to Amend Petitioner's Habeas to Add Newly Exhausted Claims." Concurrently, petitioner lodged what the Court presumed was intended as his proposed Amended Petition. However, it was unclear to the Court from its review of the proposed Amended Petition whether petitioner had decided to abandon the six grounds for relief alleged in his original Petition. It also was unclear to the Court precisely what claims petitioner now was purporting to allege. The Court therefore issued an Order on October 19, 2010 requiring petitioner to lodge a revised proposed Amended Petition that (a) set forth all of his grounds for relief in the habeas form itself (including additional copies of p. 6 if he had more than five separate grounds), and (b) if the proposed Amended Petition form referenced any attached writ or supporting memorandum in setting forth any of those grounds, specified the pages in the attached document that applied to each of the stated grounds for relief.

On November 17, 2010, petitioner lodged another proposed Amended Petition (hereinafter "Am. Pet.") that rectified the deficiencies about which the Court had apprised petitioner in its October 19, 2010 Order re Further Proceedings. Accordingly, the Court set deadlines for respondent to file either opposition to petitioner's Motion to Amend or a notice of non-opposition thereto, and for petitioner to file a reply if respondent did file opposition.

Respondent filed opposition ("Opp.") to the Motion to Amend on December 21, 2010. Petitioner filed a Reply ("Reply") thereto on January 20, 2011.

On February 9, 2011, the Court issued a Report and Recommendation in which it recommended that petitioner's Motion to Amend be granted in part and denied in part. The Court found that: (a) except for Grounds 11 and 19, none of the new claims alleged in the Amended Petition related back to the filing of petitioner's original Petition; (b) unless a basis for tolling the statute existed, petitioner's last day to file a federal habeas petition containing his unrelated claims was June 30, 2010; (c) petitioner had not met his burden of demonstrating that statutory tolling rendered the lodging for filing of the Amended Petition herein timely; and (d) petitioner was not entitled to any equitable tolling of the limitation period. The Court further found that recent Ninth Circuit precedent, including Lee v. Lampert, 610 F.3d 1125, 1128–31 (9th Cir.2010), foreclosed petitioner's reliance on an "actual innocence" exception to the AEDPA statute of limitations. Accordingly, the Court recommended that petitioner's Motion to Amend be granted with respect to Grounds 1–9, 11, and 19 of the proposed Amended Petition and denied with respect to Grounds 10, 12–18, and 20–21 of the proposed Amended Petition.

The Court was unaware at the time it issued its Report and Recommendation that, the day before, the Ninth Circuit had decided to...

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