Bathen v. Allison

• Court: District Court, S.D. California
• Decided: February 10, 2021
• Docket: 3:20-cv-02063
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 BENJAMIN LEE BATHEN, Case No.: 20-cv-2063-MMA (MSB) 11 ORDER MODIFYING AND 12 Petitioner, ADOPTING IN PART REPORT AND v. RECOMMENDATION OF UNITED 13 STATES MAGISTRATE JUDGE; KATHLEEN ALLISON, et al., 14 [Doc. No. 7]

15 Respondents. GRANTING PETITIONER’S MOTION TO STAY 16 [Doc. No. 3] 17 18 19 On October 21, 2020, Benjamin Lee Bathen (“Petitioner”) filed a habeas corpus 20 petition pursuant to 28 U.S.C. § 2254, challenging his 2018 conviction for three counts of 21 making criminal threats. See Doc. No. 1. That same day, Petitioner filed a motion to stay 22 proceedings pending exhaustion of state remedies and to hold this action in abeyance. 23 See Doc. No. 3. Respondents filed a statement of non-opposition. See Doc. No. 6. 24 United States Magistrate Judge Michael S. Berg issued a detailed and well-reasoned 25 Report, recommending that the Court grant Petitioner’s motion in part. See Doc. No. 7 26 (the “R&R”). Petitioner timely filed an objection. See Doc. No. 8. For the reasons set 27 forth below, the Court SUSTAINS Petitioner’s objection, MODIFIES and ADOPTS IN 28 PART the R&R, and STAYS this action. 1 I. BACKGROUND 2 On July 19, 2018, a jury convicted Petitioner of three counts of making criminal 3 threats. See Doc. No. 1. The trial court sentenced him to a term of imprisonment of two 4 years. See id. Petitioner is currently on parole. See id. 5 A. Direct Appeal 6 Petitioner first appealed his conviction to the California Court of Appeal. He 7 raised the following claims: (1) “Insufficiency of the evidence on the element of 8 immediate prospect of execution of the threat”; (2) “Insufficiency of the evidence on the 9 element of the reasonableness of the victim’s fear”; (3) “Error to fail to instruct on 10 attempted criminal threat”; and (4) “Error to deny probation and impose the middle term 11 based on lack of remorse.” See id. at 2. On October 4, 2019, the California Court of 12 Appeal affirmed the conviction. See id. 13 Petitioner subsequently filed a petition for review to the California Supreme Court. 14 He only addressed claims 1, 3, and 4. See id. The California Supreme Court denied his 15 petition and Petitioner did not file a petition for writ of certiorari in the United States 16 Supreme Court. See id. 17 B. State Habeas Petition 18 On April 1, 2020, Petitioner filed a habeas corpus petition in the San Diego County 19 Superior Court. He claimed ineffective assistance of trial counsel for failure to 20 investigate a mental health defense based on an antidepressant that causes violence of 21 threats as a side effect (the “IAOC Claim”). The Superior Court denied his petition. See 22 id. Petitioner then filed a petition for writ of habeas corpus in the California Court of 23 Appeal, again raising the IAOC Claim. See id. The state appellate court similarly denied 24 the petition. See id. On August 31, 2020, Petitioner filed a habeas corpus petition in the 25 California Supreme Court raising the IAOC Claim. See id. The petition in the California 26 Supreme Court is currently pending. 27 28 1 C. Federal Habeas Petition 2 On October 20, 2020, Petitioner filed a federal habeas corpus petition. See Doc. 3 No. 1. He asserts the following claims: (1) the “[e]vidence was insufficient to support the 4 element of immediate prospect of execution of the threats”; (2) the “[t]rial court erred 5 when it failed to instruct on the lesser included offense of attempted criminal threat”; and 6 (3) the IAOC Claim. See id. at 6–8. On that same day, Petitioner filed a motion to stay 7 proceedings and hold this action in abeyance pending exhaustion of state remedies. See 8 Doc. No. 3. 9 II. LEGAL STANDARD 10 A district court has jurisdiction to review a Magistrate Judge’s report and 11 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). Pursuant to Rule 72 and 12 28 U.S.C. § 636(b)(1), the Court must make a de novo determination of any part of the 13 Magistrate Judge’s disposition to which a party has properly objected. See id.; see also 14 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). The Court 15 “may accept, reject, or modify, in whole or in part, the findings or recommendations 16 made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also United States v. Remsing, 17 874 F.2d 614, 617 (9th Cir. 1989). 18 III. DISCUSSION 19 Petitioner seeks to stay this action and hold it in abeyance pursuant to Rhines v. 20 Webber, 544 U.S. 269 (2005). See Doc. No. 3 at 2. Alternatively, he requests a stay 21 under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). See id. Judge Berg correctly 22 concluded that this case involves a mixed petition because Petitioner has not exhausted 23 the IAOC Claim in state court. Id. at 4. Judge Berg further determined that Petitioner is 24 not entitled to a stay under Rhines, but that a stay is appropriate under Kelly. Id. at 12. 25 Accordingly, Judge Berg recommends that the motion be granted in part and denied in 26 part. See Doc. No. 7 at 12. 27 As an initial matter, Petitioner does not object to the recommendation that his 28 motion be granted under Kelly. See Doc. No. 8 at 2. Accordingly, the Court ADOPTS 1 that portion of the R&R. See Reyna-Tapia, 328 F.3d at 1121 (“Neither the Constitution 2 nor [28 U.S.C. § 636(b)(1)(c)] requires a district judge to review, de novo, findings and 3 recommendations that the parties themselves accept as correct.”). But as Petitioner 4 explains, this was his alternative request. See Doc. No. 3 at 2. Consequently, he objects 5 to Judge Berg’s recommendation that his motion be denied under Rhines. See Doc. No. 8 6 at 2. 7 Under Rhines, a district court has discretion to stay a mixed petition to allow 8 exhaustion of pending state court claims when: (1) the petitioner has “good cause” for 9 failing to exhaust the unexhausted claims; (2) his unexhausted claims are potentially 10 meritorious; and (3) there is no indication that the petitioner engaged in intentionally 11 dilatory tactics. See Rhines, 544 at 277–78. As to the first element, good cause is 12 established when “the petitioner can set forth a reasonable excuse, supported by sufficient 13 evidence” to explain a failure to exhaust unexhausted claims. Blake v. Baker, 745 F.3d 14 977, 982 (9th Cir. 2014) (citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)). A 15 “bald assertion cannot amount to a showing of good cause.” Id. 16 Petitioner claims that his trial counsel failed to investigate whether his 17 antidepressants contributed to his behavior. See Doc. No. 3 at 4; see also Doc. No. 8 at 4 18 (“Defense counsel did not explore the possibility that the threats were a product of the 19 medication.”). He offers a reasonable excuse for his failure to exhaust this claim: the 20 “claim could not have been exhausted in petitioner’s direct appeal because it is based on 21 evidence that was not part of the record on appeal. That evidence is the product of new 22 investigation that petitioner’s trial attorney should have, but did not, conduct.” Doc. No. 23 3 at 4. As Judge Berg explained, however, Petitioner did not provide any evidentiary 24 support for his claim. See Doc. No. 7 at 8. Therefore, based on the record available at 25 the time, Judge Berg appropriately concluded that Petitioner had not shown the requisite 26 good cause under Rhines. 27 In support of his objection, however, Petitioner offers a substantial amount of 28 evidence. Although the Court acknowledges that Petitioner did not offer this evidence 1 with his motion, the Court has the authority to consider it in reviewing the R&R.1 2 Therefore, the Court considers de novo whether Petitioner is entitled to a stay under 3 Rhines based on the current record. 4 Petitioner urges the Court that Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), 5 supports granting a Rhines stay. See Doc. No. 8 at 4. In Blake, a petitioner sought to stay 6 his mixed petition. Blake, 745 F.3d at 979. His unexhausted claim alleged ineffective 7 assistance of trial counsel for failing to discover and present evidence to the jury of the 8 petitioner’s abusive upbringing and history of mental illness. Blake, 745 F.3d at 979. 9 The district court denied the motion under Rhines, holding that the petitioner did not 10 show good cause. See Blake v. McDaniel, No. 3:09-cv-00327-RCJ-RAM, 2010 U.S. 11 Dist. LEXIS 116804, at *7 (D. Nev. Nov. 2, 2010). On appeal, however, the Ninth 12 Circuit reversed and remanded with instructions that the district court grant the stay, 13 explaining that the petitioner had in fact offered sufficient evidence to find good cause. 14 See Blake, 745 F.3d at 984; but see Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008) 15 (holding that absent evidence to support an IAOC claim, a petitioner who was “under the 16 impression” that his counsel had exhausted the claim does satisfy the good cause 17 requirement). Namely, the petitioner provided a neuropsychological and psychological 18 evaluation report, a declaration by a private investigator, and thirteen declarations from 19 family and friends. Blake, 745 F.3d at 983. 20 The Court agrees with Petitioner that this case is similar to Blake. Both involve an 21 22 1 Pursuant to Rule 8 of the Rules Governing Section 2254 Cases, a district court judge can review 23 further evidence submitted in objection to a report and recommendation. See Rule 8, Rules Governing Section 2254 Cases. Rule 8(b) provides that pursuant to 28 U.S.C. § 636(b), “[t]he [district] judge must 24 determine de novo any proposed finding or recommendation to which objection is made. The judge may 25 accept, reject, or modify any proposed finding or recommendation.” Id. Further, section 636 provides that “[t]he [district] judge may also receive further evidence or recommit the matter to the magistrate 26 judge with instructions.” 28 U.S.C § 636 (b). This is consistent with Federal Rule of Civil Procedure 72(b)(3), which provides that “[t]he district judge may . . . receive further evidence” in resolving 27 objections. See Rule 12, Rules Governing Section 2254 Cases (“The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to 28 1 unexhausted claim for ineffective assistance of counsel. Similarly, both petitioners’ trial 2 counsel allegedly failed to properly investigate a potential defense, which therefore was 3 not part of the record on appeal. See Doc. No. 8 at 4. Moreover, Petitioner’s evidence is 4 at least equal in volume and substance to the evidence provided in Blake. Notably, 5 Petitioner offers ten declarations, including ones by his habeas petition counsel, various 6 doctors, and potential witnesses, see Doc. No. 8-1 at 40–55, 111–116, 137–145, letters 7 from a doctor of clinical, forensic, and addiction psychiatry and psychopharmacology, 8 and a forensic medical examiner, see id. at 56–64, a package of research on the side 9 effects of antidepressants, see id. at 65–72, a psychological evaluation completed 10 following his arrest, see id. at 73–82, phone records between himself and his trial 11 counsel, see id. at 101–110, and his antidepressant prescription, see id. at 129–130. 12 Similar to Blake, and in light of his additional proffer, Petitioner’s showing of good cause 13 is not a “bare allegation” of ineffective trial counsel, “but a concrete and reasonable 14 excuse, supported by evidence that his counsel failed to discover, investigate, and present 15 to the state courts the readily available evidence” of the side effects of Petitioner’s 16 antidepressants. Blake, 745 F.3d at 983. Therefore, based on the current record, the 17 Court finds that Petitioner has established good cause under Rhines. 18 The Court next turns to the remaining two elements. As explained above, 19 Petitioner has provided a substantial amount of evidence. As such, the Court finds that 20 Petitioner has made a sufficient showing that his trial counsel’s performance was 21 defective under the standard of Strickland v. Washington, 466 U.S. 668, 687 (1984). See 22 id. Accordingly, the Court concludes that his unexhausted IAOC Claim is potentially 23 meritorious. Finally, there is no indication that Petitioner engaged in intentionally 24 dilatory tactics. See, e.g., Doc. No. 8-1 at 141–142 (declaration by Petitioner’s habeas 25 counsel explaining that he has been diligent in pursuing the IAOC Claim). Consequently, 26 with all three elements met, the Court finds that Petitioner is entitled to a stay under 27 Rhines. 28 ] IV. CONCLUSION 2 Based on the foregoing, the Court SUSTAINS Petitioner’s objection and 3 || MODIFIES and ADOPTS IN PART Judge Berg’s Report and Recommendation. The 4 || Court GRANTS Petitioner’s motion, STAYS this case under Rhines, and HOLDS the 5 || action in abeyance while Petitioner exhausts his pending state court habeas claim. 6 IT IS SO ORDERED. 7 Dated: February 10, 2021 g Miku lu - Ld lols 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28