United States District Court, D. Arizona
Honorable Raner C. Collins, District Judge.
before the Court is Petitioner Stephen Mocco's Motion to
Stay (Doc. 33) and a Report and Recommendation (“R
& R”) prepared by Magistrate Judge Jacqueline M.
Rateau (Doc. 39). Petitioner requests a stay of his petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254
so he can exhaust a new ineffective assistance of counsel
claim in state court. For the following reasons, this Court
shall deny the motion and accept and adopt the R & R as
the findings of fact and conclusions of law by this Court.
duties of the district court in connection with a R & R
are set forth in Rule 72 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 636(b)(1). The district court
may “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3); 28 U.S.C. § 636(b)(1).
the parties object to an R & R, “[a] judge of the
[district] court shall make a de novo determination of those
portions of the [R & R] to which objection is
made.” 28 U.S.C. § 636(b)(1); see Thomas v.
Arn, 474 U.S. 140, 149-50 (1985). When no objection is
filed, the district court need not review the R & R de
novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13
(9th Cir.2005); United States v. Reyna-Tapia, 328
F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). The Court will
not disturb a magistrate judge's order unless his factual
findings are clearly erroneous or his legal conclusions are
contrary to law. 28 U.S.C. § 636(b)(1)(A). “[T]he
magistrate judge's decision…is entitled to great
deference by the district court.” United States v.
Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001).
30, 2015, the Arizona Supreme Court denied Mocco's
petition for review. Doc. 26-3. On July 13, 2016, Petitioner
filed a petition for writ of habeas corpus with this Court.
Doc. 1. There, he raised three grounds for relief: (1) the
trial court erred by denying his motion to sever; (2) the
State failed to disclose material evidence; and (3) his
sentence was illegal. The parties agree that these three
claims are exhausted. On April 27, 2017, Petitioner filed a
motion to stay the instant habeas proceeding so that he could
exhaust a new ineffective assistance of counsel claim in
state court. Doc. 33. On June 29, 2017, Magistrate Judge
Rateau issued a R & R recommending that this Court deny
the motion to stay in part because Petitioner did not explain
his new claim. Doc. 39 at 4. In his objections to the R &
R, Petitioner clarifies and states that he recently
discovered pretrial work product of trial counsel whereby
trial counsel discussed potential plea agreements with the
state prosecutor. Doc. 42. No plea agreement was ever
formally offered. Additionally, it appears that Petitioner
has yet to file a new petition in state court.
circuit has held that where a petition contains claims that
are fully exhausted and the petitioner seeks a
stay-and-abeyance to exhaust claims that were not raised in
the current petition, then the procedure outlined in
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),
applies. See King v. Ryan, 564 F.3d 1133, 1135 (9th
Cir. 2009). Under Kelly, (1) a petitioner amends his
petition to delete any unexhausted claims; (2) the court
stays and holds in abeyance the amended fully exhausted
petition, allowing the petitioner the opportunity to proceed
to state court to exhaust the deleted claims; and (3) the
petitioner later amends his petition and re-attaches the
newly-exhausted claims to the original petition.
King, 564 F.3d at 1135. However, the filing of a
federal habeas petition does not toll AEDPA's statute of
limitations. King, 564 F.3d at 1141. A petitioner
has one year from the date on which the judgment became
final. 28 U.S.C. § 2244(d)(1). A petitioner may also
only “amend a new claim into a pending federal habeas
petition after the expiration of the limitations period only
if the new claims shares a ‘common core of operative
facts' with the claims in the pending petition . . . a
new claim does not ‘relate back' to the filing of
an existing petition simply because it arises from the same
trial, conviction, or sentence.” Id. (internal
citations and quotations omitted).
Petitioner's motion to stay must be denied because his
new habeas petition claim does not relate back to the
original habeas claims. Petitioner's new claim must
relate back to the original claim because the new claim is
now outside of the one year limitations period.
Petitioner's new claim does not relate back to the
original claim because the original claims makes allegations
regarding decisions made by either the trial court or the
state prosecutor while the new claim only makes an allegation
regarding Petitioner's trial counsel. Because the new
claim does not contain a common core of operative facts with
the old claim, Petitioner's new claim cannot relate back
to the old claim. Therefore, Petitioner's motion to stay
must fail because even if he exhausts his new claim in state
court, the new claim cannot be attached to the original
petition. … …
IT IS HEREBY ORDERED that Petitioner's
objections to Magistrate Judge Rateau's R & R are
overruled. Doc. 42.
IS FURTHER ORDERED that Magistrate Judge Jacqueline
M. Rateau's R & R is accepted and adopted as the
findings of fact and conclusions of law by this Court. Doc.
IS FURTHER ORDERED that Petitioner's Motion to
Stay is denied. Doc. 33.
IS FURTHER ORDERED that Petitioner's Motion for