Friend v. Davis

Northern District of California, cand-4:2015-cv-03514

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING {{34}} MOTION TO SEAL AND SETTING FURTHER BRIEFING Re Docket No. {{47}}.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JACK WAYNE FRIEND, Case No. 15-cv-03514-HSG 8 Petitioner, ORDER GRANTING MOTION TO SEAL AND SETTING FURTHER 9 v. BRIEFING 10 RON DAVIS, Re: Dkt. Nos. 34, 47, 51 11 Respondent. 12 Northern District of California United States District Court 13 Currently pending before the Court are three motions: Petitioner's motion to seal Exhibit 14 1, Respondent's motion to dismiss certain claims from the petition for failure to exhaust, and 15 Petitioner's motion to stay the proceedings and return to state court to exhaust the unexhausted 16 claims pursuant to Rhines v. Weber, 544 U.S. 269 (2005). 17 In his motion to dismiss, Respondent agreed that Petitioner's motion to seal Exhibit 1 18 should be granted. ECF Doc. No. 47 at 2. Having shown good cause therefor, Petitioner's motion 19 to seal is GRANTED. 20 Regarding the remaining two counter motions, on the same day that Petitioner filed his 21 reply in support of his Rhines stay motion, the California Supreme Court issued a decision in 22 Briggs v. Brown, S238309, upholding the validity of Proposition 66. See Briggs, __ P.3d __, 2017 23 WL 3624094 (Aug. 24, 2017). Proposition 66 amends Cal. Penal Code section 1509 to add 24 subsection (d), which calls for California state courts to dismiss successive habeas petitions unless 25 a court finds the "defendant is actually innocent of the crime of which he or she was convicted or 26 is ineligible for the sentence." "Ineligible for the sentence" has a particular meaning under the 27 statute and a specific list of enumerated claims that can be brought under that provision. This 28 appears to foreclose exhaustion petitions if an initial habeas corpus petition has been filed and 1 decided by the state court, except in rare instances. 2 To assist the Court in making a final decision on the remaining motions, the parties are 3 hereby ORDERED to brief what impact, if any, the California Supreme Court's decision in Briggs 4 has on Petitioner's ability to return to state court to exhaust his unexhausted claims. Petitioner's 5 brief is due on or before Tuesday, September 26, 2017. Respondent's answer is due Tuesday, 6 October 10, and the reply is due Tuesday, October 17. The parties shall observe a twenty-five 7 page limit. 8 9 IT IS SO ORDERED. 10 Dated: 8/25/2017 11 ______________________________________ HAYWOOD S. GILLIAM, JR. 12 United States District Judge Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2