Sanders v. Folk

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 RICKY RENE SANDERS, Case No. 18-cv-01558-SI 8 Petitioner, ORDER TO STAY AND 9 v. ADMINISTRATIVELY CLOSE CASE 10 FRED FOLK, Docket No. 39 11 Respondent. — 12 — 13 Ricky Rene Sanders filed this pro se action for writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254 to challenge his 2014 conviction from the San Mateo County Superior Court. The matter is 15 now before the Court for sua sponte consideration of a stay. 16 In the San Mateo County Superior Court, Sanders was convicted of 44 felonies and received 17 a sentence of 834 years to life in prison. On appeal, the California Court of Appeal reversed on 18 some counts, ordered a sentence enhancement stricken, directed the trial court to resentence Sanders, 19 and otherwise affirmed the judgment of conviction. The California Supreme Court denied a petition 20 for review. Sanders is still awaiting the resentencing that was ordered by the California Court of 21 Appeal. According to online records for the San Mateo County Superior Court, Sanders is scheduled 22 to be resentenced on April 28, 2020. See https://odyportal-ext.sanmateocourt.org/Portal23 External/Home/WorkspaceMode?p=0. 24 The status of this action is that there is a pending unopposed motion to dismiss. The Court 25 earlier issued an order to show cause why relief should not be granted on more than a dozen claims 26 in the amended petition for writ of habeas corpus. Respondent has moved to dismiss on the grounds 27 that some claims are procedurally defaulted and some claims are unexhausted. See Docket Nos. 16, 1 The Court is concerned that there may be a significant unnecessary consumption of judicial 2 resources if this action goes forward at this time, given the upcoming resentencing. Specifically, 3 the Court may have to decide issues now and then have to re-decide the same or related issues later 4 after the resentencing because a new judgment will be entered. 5 Normally, piecemeal and repetitious presentation of habeas claims is avoided by the rule 6 generally disallowing second or successive petitions, see 28 U.S.C. § 2244 (b)(3), but a resentencing 7 may allow a petitioner to avoid that rule. A federal habeas petition filed after an amended or new 8 judgment is entered upon a resentencing that follows an earlier federal habeas petition is not a 9 “second or successive petition” for which permission must be obtained under 28 U.S.C. § 10 2244(b)(3). See Wentzell v. Neven, 674 F.3d 1124, 1126-27 (9th Cir. 2012) (citing Magwood v. 11 Patterson, 561 U.S. 320 (2010)). Although Magwood left open the question of whether a petitioner 12 could challenge errors at the original trial in such a petition, the Ninth Circuit has held that such 13 claims may be asserted. Wentzell, 674 F.3d at 1127 . “‘[W]here a first habeas petition results in an 14 amended judgment, a subsequent petition is not successive,’ even if its claims could have been raised 15 in a prior petition or the petitioner ‘effectively challenges an unamended component of the 16 judgment.’” Id. (quoting Johnson v. United States, 623 F.3d 41, 44 (2d Cir. 2010); see also Morales 17 v. Sherman, 949 F.3d 474 , 476 n.1 (9th Cir. 2020) (noting that three-judge panel had no authority 18 “to reconsider whether Wentzell was correctly decided”). “[P]rocedural default rules—rather than 19 the rules governing ‘second or successive’ petitions—are the more appropriate tools for sorting out 20 new claims from the old. Wentzell, 674 F.3d at 1127 . 21 Rather than consuming judicial resources to decide the claims presented in the amended 22 petition, and then consuming additional judicial resources to redecide those claims as well as any 23 new claims that Sanders wants to present after resentencing, it is preferable to stay this case to let 24 the resentencing proceedings conclude. By staying the case to wait for the resentencing (and any 25 state court challenges) to conclude, the Court avoids the likelihood that it will have needlessly 26 consume resources to study the state court records for the original trial twice – efforts that are quite 27 likely to be required because Wentzell allows a petitioner who has been resentenced to allege claims 1 Sanders is resentenced, a new or amended judgment is entered, and he exhausts state court remedies 2 || for his claims, he may file a motion to lift the stay of this action. Such a motion to lift the stay must 3 be filed within a reasonable time after he exhausts state court remedies for his claims after 4 || conclusion of the resentencing proceedings. At that time, the Court will decide whether he should 5 proceed with all his claims in a single case, in two consolidated cases, or otherwise. 6 For the foregoing reasons, this action is now STAYED and the clerk shall 7 || ADMINISTRATIVELY CLOSE the action. Nothing further will take place in this action until 8 Sanders’ resentencing occurs, he exhausts state court remedies for any claims, and, within a g || reasonable time thereafter, moves to reopen this action and lift the stay. 10 Respondent’s motion to dismiss is DISMISSED without prejudice to Respondent refiling 11 such a motion after the stay is lifted, if that ever occurs. Docket No. 39. 12 IT IS SO ORDERED. 13 Dated: March 2, 2020 v 14 SUSAN ILLSTON 15 United States District Judge — 16 — = 17 Z 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —