Romero v. Covello

Background

Carlos Romero, a state prisoner proceeding without a lawyer, filed a federal petition under 28 U.S.C. § 2254 challenging his carjacking conviction. His petition raised one claim: that insufficient evidence supported the conviction. The respondent had already filed an answer addressing that claim.

Romero later sought a stay and abeyance, meaning a pause in the federal case while he returned to state court to exhaust additional claims. His filings referred to new claims for ineffective assistance of counsel and violations of due process and equal protection. Earlier, he had referred to claims based on recent changes to state sentencing law. The court found it unclear which claims Romero intended to pursue, which claims he had included in a state petition, and whether he had completed state-court exhaustion.

Court’s analysis

Because the respondent had answered, Romero needed the court’s permission to amend his petition. The court explained that an amendment may be denied as futile when the proposed claims are procedurally defective. At that point, adding unexhausted claims would create a petition containing both exhausted and unexhausted claims, which ordinarily would require dismissal of the petition.

The court nevertheless found that Romero appeared to have made efforts to exhaust his new claims in state court. It also found that the claims were not plainly meritless, particularly because an ineffective-assistance claim can raise constitutional issues. The court could not determine from the filings, however, which claims Romero wanted to add or whether those claims had been exhausted.

Rulings

Judge Yvonne Rogers construed Romero’s “Notice of Motion to Amend Petitioner for Stay and Abeyance; Pursuant to Rhines” as a motion to amend the petition and denied that motion without prejudice to refiling after the required clarifications. By October 13, 2023, Romero was permitted to refile and had to clarify: (1) whether he wanted to add the ineffective-assistance and due-process/equal-protection claims or the claims based on recent sentencing-law changes; (2) which claims he had included in his state petition; and (3) whether he had exhausted his state remedies for those claims.

The court denied without prejudice to refiling Romero’s motion for a stay and abeyance after the parties addressed any refiled amendment motion and Romero made the required clarifications. The court denied as moot Romero’s separate motion requesting a ruling on the stay. If Romero did not timely refile motions complying with the order, the case would proceed only on the existing cognizable claim. The order terminated Docket Nos. 20, 23, and 27.