United States District Court, W.D. Washington, Seattle
ROBERT D. PENA, Petitioner,
JEFFREY A. UTTECHT, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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. 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.
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