Christian v. Bissen, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
TARYN CHRISTIAN,
Petitioner,
vs.
CLAYTON FRANK, Director,
STATE OF HAWAI`I,
DEPARTMENT OF PUBLIC
SAFETY, et al.,
Respondents.
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CV. NO. 04-00743 DAE-LEK
ORDER ADOPTING THE MAGISTRATE’S FINDINGS AND
RECOMMENDATION TO ALLOW PETITIONER TO CHOOSE BETWEEN
DISMISSAL OF THE ENTIRE PETITION OR AMENDING THE PETITION TO
DELETE THE TWO UNEXHAUSTED CLAIMS
On August 29, 2008, the Magistrate Judge issued a Findings and
Recommendation to Grant in Part and Deny in Part Petition for Writ of Habeas
Corpus (the “F&R”). (Doc. # 148.) Based upon previous rulings by this Court in
this case, the Magistrate Judge concluded that the petition was a mixed petition
because Grounds One, Two, part of Three, and Seven were exhausted, but the
Closing Claim of Ground Three and the entirety of Ground Eight were
unexhausted. (Id. at 20-28.)
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The Magistrate Judge found that a stay of the Petition while Petitioner
exhausted his unexhausted claims in State court was inappropriate because
Petitioner did not have good cause for failing to exhaust the claims and the State
court would find that Petitioner had waived his claims. (Id. at 26-27.) Therefore,
the Magistrate Judge recommended that Petitioner be allowed to choose between
dismissal of the entire Petition or deletion of the unexhausted claims so that he
could proceed in this Court with the exhausted claims on the merits. (Id. at 27.)
The Magistrate Judge assumed that Petitioner would delete the unexhausted claims
and therefore, turned to the merits of the exhausted claims. Although both parties
filed objections to the F&R on the merits decisions, neither party objected to the
recommendation of filing an amended petition, or objected to the finding that it
was mixed petition. In addition, Petitioner has not filed an amended petition as
suggested by the Magistrate Judge.
This Court reviewed the Magistrate Judge’s recommendation on this
issue de novo and independently finds that the Petition is a mixed petition because
it contains both exhausted and unexhausted claims. This Court also finds that
Petitioner did not have good cause for failing to exhaust the Closing Claim of
Ground Three or Ground Eight and that the State court would find that he waived
these claims. Because there is currently a mixed petition before this Court, this
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Court cannot consider the merits of the objections to the Magistrate Judge’s F&R.
Accordingly, this Court gives Petitioner the opportunity to amend his
Petition to remove the unexhausted claims of Ground Eight and the Closing Claim
of Ground Three. Petitioner may not add claims or facts to the petition, Petitioner
may only delete the unexhausted claims. Petitioner must file an Amended Petition
on or before 9:00 a.m. on September 30, 2008. Assuming Petitioner files an
Amended Petition in a timely fashion as directed, Respondents may stand on their
previous response and may not file any further response. If Petitioner files a timely
Amended Petition, this Court will rule on the cross-objections that have been filed
to the F&R. If Petitioner fails to file an Amended Petition as directed herein by the
date and time set, the Petition will be dismissed without prejudice. 	No additional
briefing will be permitted.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 25, 2008.
_____________________________
David Alan Ezra
United States District Judge
Taryn Christian vs. Clayton Frank, et al., Civil No. 04-00743 DAE-LEK; ORDER ADOPTING THE
MAGISTRATE’S FINDINGS AND RECOMMENDATION TO ALLOW PETITIONER TO CHOOSE BETWEEN
DISMISSAL OF THE ENTIRE PETITION OR AMENDING THE PETITION TO DELETE THE TWO
UNEXHAUSTED CLAIMS
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