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Pena v. Uttech

United States District Court, W.D. Washington, Seattle

June 28, 2019

ROBERT D. PENA, Petitioner,
v.
JEFFREY A. UTTECHT, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION

          RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge. Dkt. #44. Petitioner has filed objections to the Report and Recommendation (“R&R”) and Respondent has filed a response in support of the R&R. Dkts. #45 and #46. Petitioner filed this habeas action in part based on ineffective assistance of his trial and appellate counsel. Respondent's Answer asserted that Petitioner failed to properly exhaust his state court remedies as to those claims. Petitioner has requested that the Court stay this action so that he may exhaust his state court remedies or, in the alternative, extend the deadline for Petitioner to respond to the Respondent's Answer.

         The R&R clearly and succinctly lays out that a stay is only available in limited circumstances and the reasons that Petitioner does not qualify here. The applicable law is that:

[a] stay is appropriate only where (1) “the petitioner had good cause for his failure to exhaust, ” (2) “his unexhausted claims are potentially meritorious, ” and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Mitchell v. Valenzuela, 791 F.3d 1166, 1171 (9th Cir. 2015) (citing Rhines, 544 U.S. at 277-78.).

Dkt. #44 at 2. Focusing on the second factor, Judge Theiler thoughtfully analyzes the applicable state law and concludes that state law would bar Petitioner's claims in state court. Id. at 2-4. Because “there is no avenue by which [P]etitioner could obtain state-court review of the claims at issue here” the R&R concludes that Petitioner's claims are not “potentially meritorious.” Id. at 4. As such, Petitioner has failed to meet the applicable standard for issuance of a stay.

         Petitioner's objection, with respect to the second factor provide only:

Unexhausted claims are potentially meritorious shown by (Ground 5) being sent back to remand with defense attorney Lapps testifying that (a) she has no personal recollection of offering/relaying plea-deal to [Petitioner]; (b) Lapps also testifies that she has no forms, notes, or documents to, prove or show, that plea-deal was relayed to [Petitioner].

Dkt. #45 at 3. Petitioner does not address, in any manner, the procedural bars that form the basis for Judge Theiler's R&R. Petitioner does argue that “equitable tolling should be applied” but provides no factual or legal support for his conclusory assertion. The Court does not find any error in the R&R, agrees with the reasoning, and adopts the R&R.

         The R&R also addressed Petitioner's request for an extension of time to respond to the Respondent's Answer and a request that the Court appoint counsel. Petitioner objects to the R&R's treatment of his request for an extension of time.[1] Dkt. #45 at 5. Petitioner requested an extension of 60-90 days due to a prison assault and subsequent medical care. Dkt. #42 at 3-4. Finding that Petitioner had previously been granted several extensions, the R&R concluded that only a brief extension was warranted and recommended a 21-day extension from the date of the Court's order. Dkt. #44 at 4. Petitioner's objections to the recommendation are unspecific and Petitioner indicates that he can at least file some response within this brief extension. Dkt. #45 at 5 (noting ability to submit an imperfect response). Petitioner's objections provide no basis for deviating from the recommendation of the R&R and the Court adopts Judge Theiler's reasoning.

         Accordingly, having reviewed the Report and Recommendation of the Honorable Mary Alice Theiler, United States Magistrate Judge, Petitioner's objections thereto, and the remainder of the record, the Court finds and ORDERS:

1. The Court ADOPTS the Report and Recommendation (Dkt. #44).
2. Petitioner's motion to stay or extend time (Dkt. #42) is GRANTED in part and DENIED in part.
a. Petitioner's request to stay and abeyance is DENIED.
b. Petitioner's request for appointment of counsel is ...

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