1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 BERNARD WARREN, BB3793, Case No. 19-cv-04174-CRB (PR)

9 Petitioner, ORDER GRANTING MOTION

FOR STAY AND

10 v. ADMINISTRATIVELY CLOSING

CASE

11 HUNTER ANGLEA, Warden, (ECF No. 20) 12 Respondent.

13 Petitioner seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging a conviction 14 and nine-year sentence from Sonoma County Superior Court for felony infliction of corporal 15 injury resulting in a traumatic condition on his then-spouse, enhanced for inflicting great bodily 16 injury under circumstances involving domestic violence. In the operative pro se petition, 17 petitioner claims that: (1) trial counsel was constitutionally ineffective for failing to properly 18 prepare for the charges and for failing to object to unidentified constitutional violations; (2) trial 19 counsel was constitutionally ineffective for failing to object to the imposition of the upper-term 20 sentence; and (3) the sentencing court erred by imposing the upper-term sentence. ECF No. 1 at 5. 21 On August 26, 2019, the court (Westmore, M.J.) found that “[i]t does not appear from the 22 face of the petition that it is without merit” and ordered respondent to show cause “why a writ of 23 habeas corpus should not be issued.” ECF No. 7 at 1. Respondent filed an answer arguing that 24 claim (1) is not sufficiently specific to warrant a response and is unexhausted; claim (3) is not 25 cognizable under § 2254 and is unexhausted; and claim (2) does not warrant federal habeas relief 26 because the state courts did not unreasonably reject it. Petitioner responded by filing a pro se 27 motion for a stay under Rhines v. Weber, 544 U.S. 269 (2005), in order to exhaust a new claim of 1 The court finds that claims (1) and (3) are unexhausted, and that claim (3) fails to state a 2 cognizable claim under § 2254 because it is well established that, absent a showing of fundamental 3 unfairness not present here, “‘a state court’s misapplication of its own sentencing laws does not 4 || justify federal habeas relief.” Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). Claim (3) 5 accordingly is DISMISSED with prejudice and petitioner’s pro se motion for a stay is liberally 6 || construed as a motion for a stay in order to exhaust claim (1) and a new claim of ineffective 7 assistance of appellate counsel. 8 A district court may stay a mixed habeas petition to allow the petitioner to exhaust in state 9 court. See Rhines, 544 U.S. at 277-78. But the petitioner must show (1) “good cause” for his 10 || failure to exhaust in state court, (2) that his unexhausted claims are not “plainly meritless,” and (3) 1 that he has not engaged in “intentionally dilatory litigation tactics.” Id. at 278. The court is

W satisfied that petitioner has made enough of a showing for a stay under the circumstances. E 1B Although petitioner must allege specific facts in order to properly exhaust claim (1) and his 14 proposed new claim of ineffective assistance of appellate counsel, neither claim is plainly 5 15 meritless; petitioner has not engaged in intentionally dilatory litigation tactics; and petitioner’ □ 16 claim of ineffective assistance of appellate counsel and allegations of subsequent pro se status and 5 7 inadequate access to the law library may constitute good cause under Rhines. Cf. Blake v. Baker, 5 18 745 F.3d 977, 982-84 (9th Cir. 2014) (claim of ineffective assistance by postconviction counsel

19 may constitute good cause under Rhines). 50 Petitioner’s motion (ECF No. 20) for a stay under Rhines to exhaust claim (1) and a new claim of ineffective assistance of counsel is GRANTED. The clerk is instructed to ADMINISTRATIVELY CLOSE the case. Nothing further will take place in this matter until petitioner exhausts his unexhausted claims in the state courts and, within 28 days thereafter, °° moves to reopen the case and lift the court’s stay.

IT IS SO ORDERED.

Dated: February 27, 2020 26 xy — 27 CHARLES R. BREYER

28 United States District Judge

1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4

BERNARD WARREN,

5 Case No. 3:19-cv-04174-CRB Plaintiff, 6 5 v. CERTIFICATE OF SERVICE

HUNTER ANGLEA,

Defendant. 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 11 District Court, Northern District of California.

13 That on February 27, 2020, I SERVED a true and correct copy(es) of the attached, by 14 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 15 depositing said envelope in the U.S. Mail, or by placing said copy(es) into an inter-office delivery

16 receptacle located in the Clerk's office. = 17

42 18 || Bernard Warren ID: BB3793 Vallecito Conservation Camp #1 19 || 3225 Six Mile Rd. Angels Camp, CA 95222 20 21 22 Dated: February 27, 2020 Susan Y. Soong 23 Clerk, United States District Court 24 35 py Wb ete Lashanda Scott, Deputy Clerk to the 26 Honorable CHARLES R. BREYER 27 28