Benavides v. Montgomery

• Court: District Court, S.D. California
• Decided: January 7, 2022
• Docket: 3:21-cv-01186
• Status: Unknown

Opinion

1 2 3 6 . □ . 7 "UNITED STATES DISTRICT COURT - 9 SOUTHERN DISTRICT OF CALIFORNIA 10 |] 1 1 JOHN BENAVIDES, Case No.: 21-cv-1186-BAS-RBM 12 Petitioner, REPORT AND 13 || V- RECOMMENDATION RE: 14 || W.L. MONTGOMERY, Warden, ey AND ABEYANG oe FOR 15 Respondent. 16 [Doc. 3] 17 18 I. INTRODUCTION 19 | Petitioner John Benavides (“Petitioner”), a state prisoner proceeding pro se and in 20 forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 21 (“Petition”). (Doc. 1.) Petitioner contemporaneously filed a motion for stay and abeyance 22 (“Motion”). (Doc. 3); Rhines v. Weber, 544 U.S. 269 (2005); Kelly v. Small, 315 F.3d 1063 23 Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 24 ||2007). Respondent W.L. Montgomery (“Respondent”) filed a response in opposition on 25 || August 20, 2021. (Doc. 7.) Petitioner filed a reply on September 13, 2021. (Doc. 9.) The 26 || matter was referred to the undersigned judge for Report and Recommendation pursuant to 27 || 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 72.1(c). 28 After a thorough review of the papers on file, the facts, and the applicable law, the

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1 || undersigned respectfully RECOMMENDS that Petitioner’s motion for stay and abeyance 2 DENIED pursuant to Rhines and GRANTED pursuant to Kelly. 3 Il. BACKGROUND 4 a. Conviction 5 On October 4, 2018, Petitioner pled guilty in San Diego Superior Court Case No.

_ 6 ||SCD272074 to robbery (Cal. Penal Code § 211), conspiracy to commit aggravated assault 7 ||(Cal. Penal Code §§ 182 (a)(1)/245 (a)(4)), possession of cocaine for sale (Cal. Health & 8 || Safety Code § 11351), and attempted extortion (Cal. Penal Code §§ 664/520). (Doc. 8-3 9 12.) Petitioner also. admitted the truth of attendant gang and firearm enhancement 10 || allegations, the out-on-bail allegation, and serious prior felony and prior strike allegations. ||dd.) At the same time, Petitioner pled guilty in San Diego Superior Court Case No. 12 SCS287783 to making criminal threats (Cal. Penal Code § 422) and admitted one serious 13 felony prior conviction. (/d.) “In exchange for these two pleas, the prosecutor agreed to 14 || dismiss the balance of the charges in both cases but leave the sentencing to the discretion 15 of the trial court.” (d.) On February 8, 2019, pursuant to the plea agreement, Petitioner 16 || was sentenced to twenty-eight years in state prison. (/d.) 17 b. Direct Appeal 18 Petitioner appealed his 201 8 convictions to the California Court of Appeal: (Doc. 1 19 || at 2 (citing Cal. Ct. App. Case No. D075701); Doc. 8—2 at 1.) In 2020, the Court of Appeal 20 affirmed the convictions. (Doc. 1 at 2; Doc. 8-5 at 1.) Petitioner then appealed his 21 ||convictions to the California Supreme Court. (Doc. 1 at 2; Doc. 8—6 at 1 (Cal. Supreme .22 ||Court Case No. $262083).) On June 24, 2020, the California Supreme Court denied 23 ||review. (Doc. 1 at 2; Doc. 8-7 at 1.) Petitioner did not file a petition for certiorari in the 24 || United States Supreme Court. (Doc. 1 at 3.) 25 c. Collateral Review in State Court 26 It appears Petitioner has not yet commenced collateral review in state court. 27 28 |I///

1 d. § Federal Habeas Corpus Petition 2. On June 28, 2021, Petitioner filed the instant Petition and named two grounds for 3 || relief. (Doc. 1 at 5, 7.) Ground one alleges Petitioner’s Romero motion to remove a prior 4 || strike conviction for purposes of sentencing should have been granted. (Doc. 1 at 5); 5 || People v. Superior Court (Romero), 13 Cal.4th 497 (1996). Ground two alleges Petitioner 6 “indigent [and] [u]nable [t]o [p]ay [a] $10,000 [rJestitution [o]rder.” (Doc. 1 at 7.) These 7 grounds for relief were raised in the state court appeal. (Doc. 8—2 at 18-28.) Now, in 8 || the underlying Motion, Petitioner seeks a stay of his Petition because “[t]he [p]rocess [h]as 9 || [b]een [s]low” due to the pandemic, and Petitioner needs “[t]ime [t]o [e]xhaust 2 [o]f [his] 10 ||4 [c]laims.” (Doc. 3; Doc. 9 at 1.) While the Petition itself does not identify the two other 11 |; unexhausted claims for relief, Petitioner asserts claims for ineffective assistance of counsel 12 an “illegal enhancement” for the first time in his reply brief to the instant Motion. 13 ||(Compare Doc. 1 with Doc. 9 at 1-2 (raising ineffective assistance of counsel and an 14 || “illegal enhancement” as additional grounds for habeas relief which were not raised in the 15 || state court appeal)). 16 Ii. LEGAL STANDARD 17 Before bringing a habeas corpus petition in federal court, habeas petitioners must 18 || first exhaust remedies in state court. 28 U.S.C. § 2254(b), (c); see also Granberry v. Greer, 19 ||481 U.S. 129, 133-34 (1987); Peterson v. Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003). 20 || To satisfy the exhaustion requirement, a state prisoner must “‘fairly present’ his federal 21 ||claim to the highest state court with jurisdiction to consider it,” or “demonstrate[] that no 22 ||state remedy remains available.” Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) 23 ||(citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Comnor, 404 U.S. 270, 275 24 ||(1971). 25 The exhaustion requirement is important because if a federal habeas petition 26 || contains both exhausted and unexhausted claims—which is known as a “mixed” petition— 27 district court must dismiss the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). In 28 || addition to the exhaustion requirement, the Antiterrorism and Effective Death Penalty Act ,

1 of 1996 (“AEDPA”) applies a one-year statute of limitations for bringing a habeas corpus 2 || petition in federal court and claims not exhausted and presented to the federal court within 3 one-year period are forfeited. See 28 US.C. § 2244(d). The Supreme Court noted that 4 |/the interplay between AEDPA’s one-year statute of limitations and the Rose dismissal 5 ||requirement can effectively result in denying habeas petitioners the opportunity for 6 || collateral review in federal court when they fail to exhaust state remedies. Rhines, 544 7 at 275. Therefore, when presented with “mixed” petitions, the district court has 8 || discretion to implementa “stay-and-abeyance” procedure. Id. at 277-78. “Under this 9 || procedure . . . a district court [may] stay the petition and hold it in abeyance while the 10 || petitioner returns to state court to exhaust his previously unexhausted claims. Once the 11 petitioner exhausts his state remedies, the district court will lift the stay and allow the 12 || petitioner to proceed in federal court.” Jd. at 275-276. In the Ninth Circuit, the district 13 || court also has discretion to stay and hold in abeyance fully unexhausted petitions. Mena v. 14 || Long, 813 F.3d 907, 912 (9th Cir. 2016) (emphasis added). This is so because the Court 15 || found the difference between mixed and fully unexhausted petitions is not sufficiently 16 ||meaningful to warrant different treatment. Id. 17 Whether it is a mixed petition or fully unexhausted petition, a Rhines stay and 18 abeyance is only available in limited circumstances, Rhines, 544 U.S. at 277; see also 19 || Mena, 813 F.3d at 912. A stay and abeyance is only appropriate when the district court 20 || finds the following: (1) good cause exists for petitioner’s failure to exhaust his claims in 21 ||state court; (2) the unexhausted claims potentially have merit; and (3) “there is no 22 || indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 23 ||544 U.S. at 278; see also Mena, 813 F.3d at 910. — . □□ 24 As an alternative to a Rhines stay, a petitioner may also be granted a stay under the 25 || “withdrawal and abeyance procedure” as outlined in Kelly v. Small. See Kelly, 315 F.3d at 26 || 1069-71; see also King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009). In order to use 27 ||this procedure, a petitioner must voluntarily withdraw his unexhausted claims from the 28 || federal petition, ask the court to stay the proceedings and hold the fully exhausted federal

1 || petition in abeyance while he returns to state court to exhaust his deleted claims, and then 2 seek permission to. amend his federal petition to include the newly exhausted claims to the 3 |/ original petition. King, 564 F.3d at 1135. The petitioner is allowed to amend his federal 4 || petition by adding back the newly exhausted claims only if the claims are timely under 5 || AEDPA or “relate back” to the exhausted claims in the pending federal petition. King, 564 6 ||F.3d at 1140-41 (a stay under Kelly does not toll AEDPA’s limitations period with respect 7 ||to unexhausted claims); see also Mayle v. Felix, 545 U.S. 644, 662-64 (2005). A new 8 ||claim “relates back” to an existing claim if the two claims share a “common core of 9 || operative facts.” Mayle, 545 U.S. at 664. 10 ||. . IV. DISCUSSION 11 A. Construing Petitioner’s Motion for Stay and Abeyance as a Request to Amend 12 Petitioner’s Motion requests a stay and abeyance while “[Petitioner] exhaust[s] [a] 13 || [clouple [o]f [o]ther [c]laims [t]hrough [t]he [s]tate [c]ourt.” (Doc 3.) However, the 14 || additional claims Petitioner seeks to exhaust are not included in the Petition or described 15 his Motion. (See Docs. 1,3.) Rather, Petitioner describes his new, unexhausted claims 16 ||in his September 13, 2021 reply. (Doc. 9.) Therefore, the Petition is neither unexhausted 17 ||nor mixed because the two claims listed in the Petition are fully exhausted, and the 18 || unexhausted claims Petitioner alleges are not included in the Petition itself. (See Doc 1.) 19 || However, district courts are required to liberally construe pro se filings, and the Court is 20 |/inclined to interpret Petitioner’s Motion as a request to amend his Petition to add the 21 |/unexhausted claims. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Blaisdell v. 22 Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (courts liberally construe pro se litigants’ 23 || filings, relieving them from “strict application of procedural rules and demands... .”). “A petitioner may amend a petition for writ of habeas corpus once ‘as a matter of 25 || course,’ and without leave of court, before a response has been filed under Federal Rule of 26 || Civil Procedure 15(a), as applied to habeas corpus actions pursuant to 28 U.S.C. § 2242 27 Rule 11 of the Federal Rules Governing Section 2254 Cases.” Cano v. Malfi, No. CIV 28 ||S-06-0558-LKK, 2010 WL 4880560, at *7 (E.D. Cal. Nov. 23, 2010) (quoting Calderon

1 U.S. Dist. Ct. (Thomas), 144 F.3d 618, 620 (9th Cir.1998)); see also Bonin 2 || Calderon, 59 F.3d 815, 845 (9th Cir.1995). “Under Rule 15(a), once a responsive pleading 3 || has been filed, a petitioner must seek leave of court before being allowed to amend.” Cano, A |}2010 WL 4880560, at *7; FED. R. CIv. P. 15(a); see also Anthony v. Cambra, 236 F.3d 568, 5 ||577 (9th Cir.2000). “Although, under the rule, ‘leave shall be freely given when justice so 6 requires,’ the district court may consider whether there is any evidence of ‘undue delay, 7 || bad faith or dilatory motive’ with respect to the filing of the amendment when determining 8 || whether leave should be granted.” Anthony, 236 F.3d at 577. : □ 9 In construing the Motion liberally as a request to amend the Petition, Petitioner 10 || constructively amended his Petition once as a matter of course. (Docs. 3, 7); Cano, 2010 11 || WL 4880560, at *7. Moreover, in accordance with AEDPA, there is a one-year statute of 12 limitations for bringing a habeas corpus petition in federal court and claims not exhausted 13 presented to the federal court within the one-year period are forfeited. See 28 U.S.C. 14 || § 2244(d). Petitioner’s judgment became final for purposes of AEDPA on September 22, 15 2020, ninety days after the California Supreme Court denied his petition for review. Bowen _ 16 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Pursuant to section 2244(d), the statute of 17 || limitations for federal habeas corpus began to run on September 23, 2020, the day after the 18 ||judgment became final. 28 U.S.C.A. § 2244(d)(1)(A); see Corjasso v. Ayers, 278 F.3d 19 ||874, 877 (9th Cir. 2002) (explaining the one-year statute of limitations under AEDPA 20 || begins to run the day after the conviction becomes final). Thus, the statute of limitations 21 || period would have expired on September 23, 2021. Petitioner filed his Motion on June 28, 22 ||2021, which is timely under AEDPA. (See Doc. 3); see also 28 U.S.C. § 2244(d). 23 Moreover, Petitioner’s reply brief, which lists his two unexhausted claims, was filed on 24 ||September 13, 2021. (Doc. 9.) 25 While the two additional claims remain unexhausted, the Petition itself is timely as 26 was filed within the one-year statute of limitations period. Therefore, the Court finds 27 Petitioner constructively amended his Petition once as a matter of right as of the 28 □ . .

1 constructive filing date of his reply, which is within the statute of limitations period. The 2 Motion for stay and abeyance of the Petition will be analyzed pursuant to the amendment. 3 B. Stay under Rhines 4 || Petitioner’s Motion does not specify whether he seeks a stay under Rhines or Kelly. 5 ||(Doc. 3.) However, as previously stated, a Rhines stay and abeyance is only available in 6 || limited circumstances. Rhines, 544 U.S. at 277; see also Mena, 813 F.3d at 912. Under 7 || Rhines, a district court only has discretion to stay a mixed or wholly unexhausted petition 8 allow a petitioner time to present his or her unexhausted claims to state courts. Rhines, 9 US. at 276; see Mena, 813 F.3d at 912 (holding a district court has the discretion to 10 || stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in 11 || Rhines). . 12 Reviewing the Petition in light of the above amendment, Petitioner states four 13 || grounds for which he claims he is being unlawfully held. (Docs. 1, 9.) Two grounds have 14 been fully exhausted in state court, and two grounds remain unexhausted. (Docs. 1, 9.) 15 || Thus, Petitioner has presented a mixed petition, which is subject to a Rhines analysis. A 16 and abeyance under Rhines is available when: (1) good cause exists for petitioner’s 17 || failure to exhaust his claims in state court; (2) the unexhausted claims potentially have 18 ||merit; and (3) “there is no indication that the petitioner engaged in intentionally dilatory 19 |} litigation tactics.” Rhines, 544 U.S. at 278; see also Mena, 813 F.3d at 910. 20 I. Good Cause — . 21 “The caselaw concerning what constitutes ‘good cause’ under Rhines has not been 22 ||developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (internal 23 || citation omitted). While a “bald assertion” of facts “cannot amount to a showing of good 24 || cause,” the good cause inquiry “turns on whether the petitioner can set forth a reasonable 25 excuse, supported by sufficient evidence, to justify a petitioner’s failure to exhaust □□□ 26 || Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). The Ninth Circuit has instructed courts 27 || analyzing good cause to do so “in light of the Supreme Court’s instruction in Rhines that 28 district court should only stay mixed petitions in ‘limited circumstances.’” Wooten v.

1 || Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (citing Jackson v. Roe, 425 F.3d 654, 661 2 || (9th Cir. 2005)). Here, the Court finds that Petitioner has not set forth a reasonable excuse, supported 4 sufficient evidence, to meet the good cause requirement for failure to exhaust. See 5 || Blake, 745 F.3d at 982. Petitioner first claims he would like to exhaust an ineffective 6 || assistance of counsel claim because his public defender during his state court proceedings 7 || was “[iJncompetent.” (Doc. 9 at 1—2.) This is insufficient to establish good cause. Blake, 8 || 745 F.3d at 982 (finding “[a]n assertion of good cause without evidentiary support will not 9 || typically amount to a reasonable excuse justifying a petitioner's failure to exhaust’); see 10 || also Strickland v. Washington, 466 U.S. 668, 687-88 (1984) (finding that even though the 11 || plaintiff called his counsel “ineffective,” the plaintiff has not argued that his counsel’s 12 || performance “fell below an objective standard of reasonableness” or that “the deficient 13 || performance prejudiced” him). □ 14 - Second, Petitioner presented an “illegal enhancement” claim in which Petitioner 15 |jargues the gang and gun enhancements applied at his sentencing should not have been 16 ||applied. (Doc. 9 at 2.) Even under a liberal construction, Petitioner does not specify the 17 ||nature of those claims, and is not sufficient to satisfy the good cause requirement. See Blake, 745 F.3d at 982 (a bald assertion without any supportive evidence does not satisfy 19 || the good cause inquiry). 20 Moreover, in his Motion, Petitioner stated he would like to submit his unexhausted 21 claims to state court “[i]mmediately.” (Doc. 3.) Petitioner may have been under the false 22 ||impression that he needed the Court’s permission to return to state court to exhaust his 23 additional claims. However, such mistake is inexcusable and insufficient to constitute 24 |i good cause. Avalos v. Sherman, No. CV 17-7948-ODW-JPR, 2018 WL 5304855, at *5 25 ||(C.D. Cal. Sept. 10, 2018) (stating “[i|gnorance of the law does not constitute ‘good cause’ 26 || for a Rhines stay”), adopted by No. CV 17-7948-ODW-JPR, 2018 WL 5304777 (C.D. Cal. 27 || Oct. 24, 2018). Simply put, “the commonplace circumstances of being a pro se petitioner 28 || with little education do not amount to good cause.” Hernandez v. California, No. C 08- 8 □

l 4085 SI-PR, 2010 WL 1854416, at *2 (N.D. Cal. May 6, 2010); see also Hamilton v. Clark, 2 CIV S-08-1008-EFB-P, 2010 WL 530111, at *2 (E.D. Cal. Feb. 9, 2010) (“[i]gnorance 3 || of the law .. . [does] not constitute good cause for failure to exhaust”) (internal citations 4 ||.omitted).

5 For the foregoing reasons, the Court finds that Petitioner has not demonstrated good 6 || cause for a stay under Rhines. □ 7 2. Other Rhines Factors 8 Because Petitioner has failed to show good cause for his failure to exhaust, the Court 9 ||need not consider whether his claims are plainly meritless or whether Petitioner has 10 engaged in abusive litigation tactics. See Wooten, 540 F.3d at 1023 (finding that “the 11 || district court did not abuse its discretion in concluding that [petitioner] did not have ‘good 12 cause’ for failing to exhaust his cumulative error claim” and “[a]s a result, [the court] need 13 ||not reach the other two factors in the Rhines test”). 14 The Court therefore RECOMMENDS that Petitioner’s Motion be DENIED 15 || pursuant to Rhines. 16 C. Stay under Kelly . 17 Because the Petition, as amended, is a mixed petition, a stay may be warranted under 18 || Kelly. While Petitioner does not specify that he seeks a stay under Kelly, such procedure 19 || “remains available after Rhines,” and, dissimilar to Rhines, “its availability is not premised 20 ||upon a showing of good cause.” King, 564 at 1140. The Kelly procedure applies as 21 || follows: 22 (1) a petitioner amends his petition to delete any unexhausted claims; (2) the 73 court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the 24 deleted claims; and (3) the petitioner later amends his petition and re-attaches 25 the newly-exhausted claims to the original petition. 26 || King, 564 F.3d at 1135. Because the Petition has been amended to include Petitioner’s two 27 || unexhausted claims, and is now a mixed petition, the Petition may be stayed pursuant to 28 || Kelly, allowing Petitioner to withdraw his unexhausted claims. As noted by Respondent,

1 || Petitioner may then amend his federal petition to add back newly exhausted claims only if 2 claims are timely under AEDPA’s one-year statute of limitations or “relate back” to the 3 exhausted claims in the pending federal petition. Jd. at 1140-41; (Doc. 7 at 4.) Moreover, _ 4 ||Respondent does not oppose a stay pursuant to Kelly. (See Doc. 7.) 5 The undersigned therefore RECOMMENDS that Petitioner’s Motion be . 6 GRANTED pursuant to Kelly. Petitioner’s federal habeas Petition should be held in 7 abeyance to afford Petitioner an opportunity to exhaust his state judicial remedies with 8 ||regard to his ineffective assistance of counsel claim. . 9 . Vv. CONCLUSION 10 For the reasons given, IT IS HEREBY RECOMMENDED that the Honorable 11 ||Cynthia Bashant issue an Order: (1) approving and adopting this Report and 12 Recommendation; and (2) DENYING Petitioner’s Motion pursuant to Rhines, but 13 || GRANTING Petitioner’s Motion pursuant to Kelly. _ . i4 |]. This Report and Recommendation is submitted to the United States District Judge 15 || assigned to this case, under 28 U.S.C. § 636(b)(1), and Civil Local Rules 72.1(c) and HC.2 16 || of the United States District Court for the Southern District of California. Any party may 17 || file written objections with the Court and serve a copy on all parties on or before January 18 ||21, 2022. The document should be captioned “Objections to Report and 19 ||Recommendation.” Any reply to the Objections shall be served and filed on or before 20 || February 4, 2022. The parties are advised that failure to file objections within the specific 21 may waive the right to appeal the District Court’s Order. Martinez v. Yist, 951 F.2d 22 1153, 1157 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 ||DATE: January 7, 2022

26 HON. RUTH BERMUDEZ MONTENEGRO 27 UNITED STATES MAGISTRATE JUDGE 28 □

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