LUCY H. KOH, District Judge.
DeMarcus Thompson ("Petitioner") brings a petition for writ of habeas corpus ("Petition"), alleging violations of Petitioner's Fifth, Sixth, and Fourteenth Amendment rights under the U.S. Constitution. ECF No. 1, at 6. Before the Court are multiple motions. First, Respondent Robert Fox, warden of the California Medical Facility in Vacaville, California ("Respondent"), has filed a motion to dismiss the Petition for Petitioner's failure to exhaust state law remedies. ECF No. 7 ("Motion to Dismiss"). Second, Petitioner has filed a motion to amend the Petition to remove Petitioner's one unexhausted claim. ECF No. 8 ("Motion to Amend"). Finally, Petitioner has also filed a motion for stay and abeyance. ECF No. 9 ("Motion for Stay"). Having considered the record in this case, the applicable law, and the parties' arguments, the Court hereby GRANTS the Motion to Amend, DENIES the Motion to Dismiss as moot, and DENIES the Motion for Stay, for the reasons stated below.
At about 3:00 a.m. on August 15, 2009, Petitioner was involved in an automobile accident in San Leandro, California. ECF No. 10-1 ("App. Op."), at 4. The accident resulted in the death of one passenger and injuries to three other passengers.
On June 14, 2011, the Alameda County District Attorney filed a consolidated information charging Petitioner with three counts. Id. at 2. Count One was for gross vehicular manslaughter. Id. As to Count One, the District Attorney sought a sentencing enhancement for Petitioner fleeing the scene of the crime. Id. Count Two was for driving under the influence of alcohol and causing personal injury. Id. As to Count Two, the District Attorney sought sentencing enhancements for causing bodily injury and death to multiple victims, driving at an excessive rate of speed, and—of particular relevance to the instant motions—causing great bodily injury to the three victims pursuant to Penal Code § 12022.7(a). Id. Count Five was for leaving the scene of an accident involving injury.
On September 6, 2011, Petitioner was convicted on all counts. Id. at 8. On October 21, 2011, Petitioner was sentenced to 20 years and 10 months in state prison. Id. at 8; Petition ¶ 2. Of particular relevance to the instant motions, the trial court applied sentencing enhancements for causing great bodily injury (pursuant to Penal Code § 12022.7) to Petitioner's sentence for his conviction of driving under the influence of alcohol and causing personal injury. App. Op. at 22. The trial court did not apply sentencing enhancements pursuant to § 12022.7 to Petitioner's conviction of gross vehicular manslaughter.
On November 21, 2014, Petitioner filed the instant Petition pursuant to 28 U.S.C. § 2254. See Petition. In the Petition, Petitioner asserts three claims: (1) that "[t]here was insufficient evidence to support [P]etitioner's convictions, and [P]etitioner was thus convicted in violation of his right not to be convicted except upon proof beyond a reasonable doubt" and his right "to due process of law, as protected by the Fifth and Fourteenth Amendments to the United States Constitution;" (2) "Petitioner was denied his Fifth, Sixth, and Fourteenth Amendment rights to not be found guilty unless all elements of the offense are proven to the jury beyond a reasonable doubt because the court failed to adequately inform the jury of the necessary elements of the offense;" and (3) "[t]he prosecutor's arguments violated [P]etitioner's right to due process of law and right to have all elements of the offense proven beyond a reasonable doubt as protected by the Fifth and Fourteenth Amendments to the United States Constitution." Id. ¶¶ 17-19.
On February 2, 2015, Respondent filed the Motion to Dismiss. See Mot. Dismiss. In that motion, Respondent argued that the Court should dismiss the entirety of the Petition because the Petitioner failed to exhaust his third claim for relief in state court, as required by 28 U.S.C. § 2254(b)(1)(A). Mot. Dismiss at 2.
Petitioner did not file an opposition to the Motion to Dismiss. Rather, on February 17, 2014, Petitioner filed the instant Motion to Amend. See Mot. Amend. In that motion, Petitioner sought leave of the Court to amend the Petition to remove Petitioner's unexhausted claim for habeas relief. Id. at 1. Respondent did not file an opposition to the Motion to Amend; however, in a subsequent filing Respondent stated that it did not oppose the Motion to Amend. ECF No. 10, at 1 n.1.
Also on February 17, 2015, Petitioner filed the instant Motion for Stay. See Mot. Stay. In that motion, Petitioner sought a stay and abeyance of Petitioner's remaining two exhausted claims in order to permit Petitioner to exhaust a new claim in state court based on the California Supreme Court's recent decision in People v. Cook, 60 Cal.4th 922 (2015). Mot. Stay at 1. On March 3, 2015, Respondent filed an opposition to the Motion for Stay, with one supporting exhibit. ECF No. 10 ("Opp'n"). On March 23, 2015, Petitioner filed a reply.
The exhaustion of available state remedies is a prerequisite to a federal court's consideration of claims sought to be presented in habeas corpus proceedings. See Rose v. Lundy, 455 U.S. 509, 522 (1982); 28 U.S.C. § 2254(b). A petitioner can satisfy the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971), Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). A district court must dismiss a habeas petition that contains both exhausted and unexhausted claims. Rose, 455 U.S. at 522.
The Federal Rules of Civil Procedure govern a motion from a petitioner to amend or supplement a petition for writ of habeas corpus. See 28 U.S.C. § 2242; Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). Pursuant to Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of course within 21 days of serving it. Fed. R. Civ. P. 15(a)(1). After that initial period has passed, amendment is permitted only with the opposing party's written consent or leave of the court. Id. at (a)(2). Rule 15 instructs that "[t]he court should freely give leave [to amend] when justice so requires." Id. Although this rule "should be interpreted with extreme liberality, leave to amend is not to be granted automatically." Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (internal citation omitted). Courts commonly consider four factors—the so-called Foman factors—when determining whether to grant leave to amend: (1) bad faith on the part of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th Cir. 1999). Of these factors, prejudice to the opposing party is the most important. Jackson, 902 F.2d at 1387. "The party opposing amendment bears the burden of showing prejudice." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987).
It is well-settled that a district court has the discretion to stay a petition for habeas corpus. Calderon v. U.S. Dist. Court (Thomas), 144 F.3d 618, 620 (9th Cir. 1998); Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 988 (9th Cir. 1998), abrogated on other grounds by Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir. 1997). However, the Ninth Circuit has held that this discretion in no way grants "district courts carte blanche to stay even fully exhausted habeas petitions." Taylor, 134 F.3d at 988 n.11. Rather, a stay should be granted at the discretion of the district court if: (1) the claims the petition seeks to pursue are cognizable under § 2254; (2) there is a likelihood of prejudice to the petitioner should a stay be denied; and (3) there is no evidence that the motion for a stay is brought to delay, to vex, or harass, or that the request is an abuse of the writ. Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993).
The Court first addresses Petitioner's Motion to Amend. Petitioner seeks to amend his Petition to eliminate his third claim for relief, on the grounds that Petitioner has not exhausted this claim. Mot. Amend. at 1. Respondent has stated it does not oppose the Motion to Amend. Opp'n at 1, n.1.
As previously discussed, the Court considers the following factors when determining whether to grant leave to amend a habeas petition: (1) bad faith on the part of the movant; (2) undue delay; (3) prejudice to the opposing party; and (4) futility of the proposed amendment. Foman, 371 U.S. at 182. Of these factors, prejudice to the opposing party is the most important. Jackson, 902 F.2d at 1387. "The party opposing amendment bears the burden of showing prejudice." DCD Programs, 833 F.2d at 187. Furthermore, where, as here, a petitioner files a petition contained both exhausted and unexhausted claims, the Ninth Circuit has instructed that a district court "must, at a minimum, [offer] leave to amend the petition to delete any unexhausted claims and to proceed on the exhausted claims." Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013) (reversing and remanding the dismissal of a mixed habeas petition because the district court failed to offer the petitioner the opportunity to amend his petition to abandon the unexhausted claims).
Here, given Respondent's statement of non-opposition to the Motion to Amend, the Court finds that the Foman factors weigh in favor of granting leave to amend. See Foman, 371 U.S. at 182. Accordingly, the Court hereby GRANTS Petitioner's Motion to Amend to remove Petitioner's third claim for relief. Furthermore, because the amended Petition will contain only exhausted claims for relief, the Court DENIES Respondent's Motion to Dismiss as moot.
The Court now turns to Petitioner's Motion for Stay. As previously discussed, Petitioner requests that the Court stay the instant proceedings to permit Petitioner to exhaust a previously unexhausted claim based on the recent California Supreme Court decision People v. Cook, 60 Cal.4th 922 (2015). Mot. Stay at 1. The Court first addresses the legal standard to stay a habeas petition while the petitioner exhausts unexhausted claims. The Court will then address the merits of Petitioner's motion.
Where a habeas petitioner seeks a stay to afford an opportunity to exhaust previously unexhausted claims, the Ninth Circuit has approved of a "three-step stay-and-abeyance procedure in which: (1) the prisoner amends his mixed petition to remove the unexhausted claims; (2) the district court stays and holds in abeyance the amended and fully exhausted petition; and (3) the prisoner re-amends his petition to add the newly-exhausted claims after litigating them in state court." Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007) (citing Taylor, 134 F.3d at 986). The Ninth Circuit alternately refers to this three-step stay-and-abeyance procedure as a "Kelly/King stay" because it was most recently described by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), and King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). See, e.g., Robinson v. Miller, No. C 11-1339 LHK PR, 2012 WL 4761904, at *1 (N.D. Cal. Oct. 5, 2012).
A district court may grant a Kelly/King stay if, inter alia: (1) the claims the petition seeks to pursue are cognizable under § 2254; (2) there is a likelihood of prejudice to the petitioner should a stay be denied; and (3) there is no evidence that the motion for a stay is brought to delay, to vex, or harass, or that the request is an abuse of the writ. See Fetterly, 997 F.2d at 1301-02. In addition, a court may deny a motion for a Kelly/King stay if the new claims the petitioner seeks to exhaust are "facially without merit and therefore cannot be added to the existing habeas petition after they are exhausted in state court." Orozco v. Harrington, No. 1:10-CV-01599 MJS HC, 2011 WL 2036347, at *2 (E.D. Cal. May 23, 2011) (citing King, 564 F.3d at 1141); see also Snowden v. Adams, No. CIV S-10-0651 KJM, 2011 WL 319199, at *2 (E.D. Cal. Jan. 28, 2011) ("The court must still deny a request for a stay and abeyance under Kelly if the new claims are facially without merit and therefore cannot be added to the existing habeas petition after they are exhausted in state court."). Whether to grant a Kelly/King stay is at the discretion of the district court. Thomas, 144 F.3d at 620.
The Court notes that in the Motion for Stay, Petitioner moves for a stay and abeyance under a different legal procedure than Kelly. See Mot. Stay at 2. Specifically, Petitioner argues that the Court should apply the standard enunciated by the U.S. Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), and by the Ninth Circuit in Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005). In Rhines, the Supreme Court held that a district court has the discretion to stay a mixed habeas petition, or a petition that presented both exhausted and unexhausted claims, to permit the petitioner time to exhaust the unexhausted claims. 544 U.S. at 277. The Supreme Court went on to state that the stay of a mixed habeas petition was only appropriate in "limited circumstances," specifically when the district court "determines there was good cause for the petitioner's failure to exhaust his claims first in state court," and when the unexhausted claims are not "plainly meritless." Id. at 277. The Ninth Circuit in Jackson v. Roe subsequently clarified when a Rhines stay applies. 425 F.3d at 661. Specifically, the Ninth Circuit stated that "Rhines applies to mixed petitions." Id. (emphasis in original). However, the Ninth Circuit also stated that the "three-step procedure [of Kelly/King] applies to stays of fully exhausted petitions" including a situation where a petitioner is allowed to "amend his petition to remove [] unexhausted claims," and requests that the district court stay the "fully exhausted petition to allow [] petitioner the opportunity to proceed to state court to exhaust" the unexhausted claims. Id. at 658-59, 661 (emphasis in original).
Here, the Court disagrees with Petitioner that Rhines governs the instant Motion for Stay. Separate from the Motion for Stay, Petitioner has moved to amend the Petition to remove his one unexhausted claim. Mot. Amend at 1. Moreover, this Court has granted Petitioner's request. See Section III.A, supra. Therefore, the Petition now contains only exhausted claims, and the Petitioner seeks to stay the instant proceedings so that Petitioner can exhaust a new unexhausted claim in state court. Mot. Stay at 2. As the Ninth Circuit has made clear, Kelly/King—not Rhines—applies to cases in which a petitioner amends his petition to remove unexhausted claims and requests that the court stay the matter to allow the petitioner to exhaust an unexhausted claim. Jackson, 425 F.3d at 661. Accordingly, the Court applies the Kelly/King standard to determine Petitioner's Motion for Stay.
In the instant motion, Petitioner argues that the California Supreme Court's recent decision in People v. Cook, which dealt with whether a great bodily injury sentencing enhancement may be applied to a conviction for murder or manslaughter, should apply to Petitioner's case and thereby reduce Petitioner's sentence. Mot. Stay at 1-2. Petitioner requests that the Court hold the instant case in abeyance so that Petitioner may exhaust a new Cook claim in state court before, if necessary, amending the instant Petition to include a claim based on Cook. Id. at 2. Respondent, in its Opposition, raises two arguments against Petitioner's Motion for Stay. First, Respondent contends that the motion is meritless because Cook, by its express terms, does not apply to a case such as Petitioner's. Opp'n at 3-4. Specifically, Respondent argues that Cook does not apply to Petitioner's case because the trial court did not apply great bodily injury sentencing enhancements to Petitioner's conviction of gross vehicular manslaughter. Id. Rather, the trial court applied great bodily injury enhancements to Petitioner's conviction of a different offense—driving under the influence of alcohol and causing personal injury. Id. Respondent argues the California Supreme Court did not extend its holding in Cook to such a scenario. Id. Second, Respondent argues that any claim of error regarding a state's application of its sentencing laws is a state law issue for which federal habeas relief is unavailable. Id.
In People v. Cook, the California Supreme Court addressed whether a conviction for manslaughter or murder could be enhanced for great bodily injury pursuant to Penal Code § 12022.7.
Here, the Court agrees with Respondent that the Motion for Stay should be denied. As previously discussed, a Court may deny a motion for a Kelly/King stay if, among other reasons, the motion is facially without merit. King, 564 F.3d at 1141; Orozco, 2011 WL 2036347, at *2. The basis for Petitioner's Motion for Stay is that Cook may apply retroactively to Petitioner's case. See Mot. Stay at 2 (arguing that "People v. Cook should be applied retroactively to his case," which would "require that [P]etitioner be resentenced."). However, Cook involved a defendant who received a great bodily injury sentencing enhancement for a conviction of manslaughter. Cook, 60 Cal. 4th at 924. The California Supreme Court held this was contrary to the plain language of § 12022.7. Id. at 938.
Here, in contrast, Petitioner received great bodily injury sentencing enhancements pursuant to Penal Code § 12022.7 for Petitioner's conviction of driving under the influence of alcohol and causing personal injury. App. Op. at 2. Although Petitioner was separately convicted for gross vehicular manslaughter, Petitioner did not receive any sentencing enhancements pursuant to § 12022.7 for his conviction of this count. Id. Rather, the trial court enhanced Petitioner's sentence for a different conviction: driving under the influence of alcohol and causing personal injury. Id. at 22. In short, Petitioner' great bodily injury enhancements attached to "other crimes" besides Petitioner's conviction for manslaughter, which is the scenario that the California Supreme Court expressly did not address in Cook. 60 Cal. 4th at 924. Accordingly, Cook by its plain terms does not apply to Petitioner's case. Given that Petitioner's argument rests on a recently-decided case that does not apply to Petitioner, granting of the Motion for Stay would be inappropriate. See Burleson v. Kernan, No. C 05-1263 SI (PR), 2007 WL 3479033, at *2 (N.D. Cal. Nov. 15, 2007) (denying motion to stay action so petitioner could exhaust argument based on a recently-decided U.S. Supreme Court case, on the grounds that the recently-decided case "dealt with a part of California's sentencing law ... not at issue in the present case."); Castille v. Knowles, No. C 06-6236 MHP (PR), 2008 WL 4962692, at *2 (N.D. Cal. Nov. 19, 2008) (denying motion to stay action so petitioner could exhaust argument based on recently-decided U.S. Supreme Court case "because the claim appears [to be] plainly meritless" and involved an aspect of California sentencing law "not at issue in the present case.").
In his Reply, Petitioner argues that Cook should apply here because Petitioner's case "is almost exactly like the one in People v. Beltran, which Cook approved and followed." Reply at 4. People v. Beltran involved a defendant who was convicted of evading a pursuing peace officer causing serious injuries to others. 82 Cal.App.4th 693, 695 (2000); Cook, 60 Cal. 4th at 406 (citing and discussing Beltran). Two great bodily injury enhancements subsequently attached to the Beltran defendant's conviction. Cook, 60 Cal. 4th at 406. The issue before the Beltran court was whether the enhancements were valid. Id. The Beltran court decided they were not valid because § 12022.7(g) provides that a great bodily injury enhancement shall not apply to a conviction of murder or manslaughter or, inter alia, if infliction of great bodily injury is an element of the convicted offense. Id. The Beltran court held that evading a pursuing peace officer causing serious injury to others—the crime of which the defendant was convicted and to which the great bodily injury enhancements attached—contained "great bodily injury [as] an element of that offense," and therefore great bodily injury enhancements could not apply. Id. The California Supreme Court in Cook cited Beltran with approval, stating that Beltran "was correct" for its adherence to the language of § 12022.7. Id.
The Court does not find Petitioner's argument regarding Beltran persuasive because Petitioner is incorrect that his case is "almost exactly like" Beltran. Reply at 4. The Beltran court found that the defendant there received great bodily injury sentencing enhancements for an offense of which great bodily injury was already an element. See Cook, 60 Cal. 4th at 926. The Beltran court concluded that this was contrary to the plain language of § 12022.7, which provides that a great bodily injury enhancement "shall not apply" if, inter alia, "infliction of great bodily injury is an element of the offense." Id. § 12022.7(g) (emphasis added).
Here, in contrast, Petitioner does not argue that great bodily injury enhancements attached to any of Petitioner's convictions for which great bodily injury is already an element. Nor could Petitioner make such an argument. Petitioner received great bodily injury enhancements for Petitioner's conviction of driving under the influence of alcohol and causing personal injury. App. Op. at 2. The California Court of Appeal has rejected the argument that the offense of driving under the influence of alcohol and causing personal injury includes "great bodily injury" as an element of the offense. People v. Guzman, 77 Cal.App.4th 761, 765 (2000) (holding great bodily injury enhancement under § 12022.7 properly attached to conviction for driving under the influence of alcohol and causing personal injury). This is because the "bodily injury component of [driving under the influence of alcohol and causing personal injury] requires only proof of harm or hurt to the body." Id. (citing People v. Dakin 200 Cal.App.3d 1026, 1035 (1988)). "Great bodily injury," as the term is used in § 12022.7, requires something different, specifically "a significant or substantial physical injury." Id. Accordingly, the offense of driving under the influence of alcohol and causing personal injury does not include "great bodily injury" as an element such that imposition of a sentencing enhancement pursuant to § 12022.7 would be improper. Id.
Petitioner also argues that Cook should apply to Petitioner's case because failing to do so would render the Cook decision "practically meaningless" and allow prosecutors to engage in a "pleading shell game[]" to attach great bodily injury enhancements to convictions other than those for manslaughter or murder. Reply at 4-5. However, the California Supreme Court in Cook explicitly declined to address a scenario where a defendant who is convicted of murder or manslaughter as well as other crimes receives great bodily injury enhancements for the convictions of other crimes, i.e. crimes other than murder or manslaughter. Cook, 60 Cal. 4th at 938 n.3. Although Petitioner was convicted of gross vehicular manslaughter, the sentencing enhancements for great bodily injury attached to convictions for a different offense, specifically driving under the influence of alcohol and causing personal injury. App. Op. at 22. Accordingly, Cook by its plain terms does not apply to Petitioner, and Petitioner points to no authority to the contrary.
The Court finds that the Motion for Stay is facially without merit, and accordingly granting of a stay would be inappropriate. See King, 564 F.3d at 1141; see also Orozco, 2011 WL 2036347, at *2. The Court therefore DENIES the Motion for Stay.
For the reasons stated above, the Court GRANTS the Motion to Amend, DENIES the Motion to Dismiss as moot, and DENIES the Motion for Stay. Petitioner shall file an amended petition within thirty (30) days of the date of this Order. Failure to meet this deadline will result in dismissal with prejudice. Petitioner may not add new claims without leave of the Court or stipulation of the parties pursuant to Federal Rule of Civil Procedure 15.
