1 2 3 4 5 6 7 10 11 JOHN BENAVIDES, Case No. 21-cv-1186-BAS-RBM
12 Petitioner, ORDER ADOPTING IN ITS 13 v. ENTIRETY THE REPORT AND RECOMMENDATION ON PETITIONER’S REQUEST FOR 15 Respondent. STAY
16 [ECF No. 12] 17
20 Petitioner John Benavides (“Petitioner”), a state prisoner proceeding pro se and in 21 forma pauperis, commenced this habeas corpus proceeding by filing a Petition for Writ of 22 Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (“AEDPA”) on June 28, 2021. 23 (Pet., ECF No. 1.) Petitioner contemporaneously moved for a stay and abeyance of this 24 proceeding so that he might have additional time to exhaust in state court two of his four 25 claims for relief. (Mot., ECF No. 3.) Crucially, however, the Petition filed with this Court 26 contains only two claims for relief, which the record demonstrates Petitioner already has 27 exhausted. (See Notice of Lodgment, ECF No. 8.) Respondent W.L. Montgomery 28 (“Respondent”) opposed Petitioner’s Motion (Opp’n, ECF No. 7) and Petitioner replied 1 (Reply, ECF No. 9). In his Reply, Petitioner identified for the first time the two additional 2 claims for relief for which he seeks a stay to exhaust. (Id.) 3 On January 7, 2022, the Honorable Ruth B. Montenegro, United States Magistrate 4 Judge, issued a Report & Recommendation (“R&R”), which recommended that: 5 (1) the Motion be construed not only as a request for a stay and abeyance but also 6 as a constructive amendment pursuant to Federal Rule of Civil Procedure 7 (“Rule”) 15(a), adding the two unexhausted claims to the Petition; 8 (2) the Court deny the Motion to the extent Petitioner seeks a stay and abeyance 9 pursuant to the procedure delineated in Rhines v. Weber, 544 U.S. 269 (2005) 10 (“Rhines”); and 11 (3) the Court grant the Motion to the extent Petitioner seeks a stay and abeyance 12 pursuant to the procedure delineated in Kelly v. Small, 315 F.3d 1063 (9th Cir. 13 2003) (“Kelly”), overruled on other grounds by Robbins v. Carey, 481 F.3d 14 1143 (9th Cir. 2007). 15 (R&R, ECF No. 12.) Notably, the R&R recommended that a stay issue pursuant to Kelly 16 even though doing so would leave pending in district court the unexhausted claims alleged 17 in Petitioner’s constructively amended Petition. 18 For the reasons stated below, the Court ADOPTS IN ITS ENTIRETY the R&R. 20 A. Guilty Plea and Sentencing 21 Petitioner is currently serving a 28-year sentence in state prison after pleading guilty 22 in October 2018 to one count of robbery, one count of conspiracy to commit aggravated 23 assault, one count of possession of cocaine for sale, one count of attempted extortion, and 24 one count of making criminal threats. (See ECF No. 8-3 at 12.) Additionally, as part of 25 that plea agreement, Petitioner admitted the truth of certain sentencing-enhancement 26 allegations, including a prior strike allegation. (Id.) In exchange, the prosecutor dismissed 27 the remaining nineteen counts with which Petitioner was charged. (Id.) The plea 28 1 agreement left to the discretion of the trial court the appropriate sentence to impose. (Id.) 2 On February 8, 2019, the trial court sentenced petitioner to 28 years in state prison. (Id.) 3 B. Direct Appeal 4 Petitioner appealed his sentence to the California Court of Appeal, arguing that the 5 trial court had abused its discretion by (1) rejecting his Romero motion1 and (2) imposing 6 fines and assessments in an amount exceeding $20,000 without first determining whether 7 Petitioner’s indigency precluded him from satisfying such a penalty. (Id.) The California 8 Court of Appeal rejected Petitioner’s arguments and affirmed the trial court’s sentence in 9 2020. (ECF No. 8-5.) Petitioner then appealed to the California Supreme Court, which 10 denied review on June 24, 2020. (ECF No. 8-7.) 11 C. Federal Habeas Corpus Petition 12 As mentioned above, Petitioner commenced this action on June 28, 2021 by filing 13 the instant Petition. The Petition lists two grounds for relief. (Pet. at 7.) They are the same 14 two grounds for relief Petitioner raised on direct appeal—that the trial court erred by 15 denying his Romero motion and by imposing hefty assessments and fines despite 16 Petitioner’s indigence. (Id.) Thus, on its face, the Petition is not “mixed,” i.e., it does not 17 contain both exhausted and unexhausted claims, but rather is fully exhausted. 18 D. Motion for Stay and Abeyance 19 Contemporaneous to initiating this federal habeas corpus proceeding, Petitioner filed 20 a Motion for a stay and abeyance of this matter, asserting he needs additional “[t]ime [t]o 21 [e]xhaust 2 [o]f [his] 4 [c]laims” as “[t]he process [h]as [b]een slow” due to the pandemic. 22 (Mot.) As mentioned above, the Petition contains only two exhausted claims. Thus, it is 23 1 Under California state law, a criminal “defendant with two more prior ‘strikes’—that is, certain 24 felony convictions—who is convicted of a felony must be sentenced under” California’s so-called three 25 strikes law, Cal. Penal Code §§ 667(b)–(i) and 1170.12, “to no less than 25 years to life” and “cannot receive ‘good time credits’ to reduce his sentence below the mandatory minimum term of 25 years.” 26 Brown v. Mayle, 283 F.3d 1019, 1021 (9th Cir. 2002) (citing In re Cervera, 24 Cal.4th 1073, 103 Cal. Rptr.2d 762, 16 P.3d 176, 181 (2001)). Under People v. Superior Court (Romero), 13 Cal.4th 497, 53 27 Cal.Rptr.2d 789, 917 P.2d 628 (1996), a defendant may request that a judge use their discretion to “strike” a defendant’s prior strikes for purposes of applying the three strikes law, if it would be “in furtherance of 28 1 entirely unclear on the face of the Petition to what two additional unexhausted claims 2 Petitioner refers. However, Petitioner’s Reply clarifies that he seeks to assert in this 3 proceeding two additional grounds for relief based upon (1) ineffective assistance of 4 counsel and (2) “illegal enhancement.” (Reply at 1–2.) On the record before the Court, it 5 does not appear that Petitioner ever has raised those grounds for relief in state court and, 6 thus, those grounds for relief are, in fact, unexhausted as Petitioner avers. 8 A. District Court Review 9 The Court reviews de novo those portions of an R&R to which objections are made. 10 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 11 findings or recommendations made by the magistrate judge.” Id. “The statute makes it 12 clear,” however, “that the district judge must review the magistrate judge’s findings and 13 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 14 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also 15 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where 16 no objections were filed, the district court had no obligation to review the magistrate 17 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 18 de novo, findings and recommendations that the parties themselves accept as correct.” 19 Reyna-Tapia, 328 F.3d at 1121.
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1 2 3 4 5 6 7 10 11 JOHN BENAVIDES, Case No. 21-cv-1186-BAS-RBM
12 Petitioner, ORDER ADOPTING IN ITS 13 v. ENTIRETY THE REPORT AND RECOMMENDATION ON PETITIONER’S REQUEST FOR 15 Respondent. STAY
16 [ECF No. 12] 17
20 Petitioner John Benavides (“Petitioner”), a state prisoner proceeding pro se and in 21 forma pauperis, commenced this habeas corpus proceeding by filing a Petition for Writ of 22 Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (“AEDPA”) on June 28, 2021. 23 (Pet., ECF No. 1.) Petitioner contemporaneously moved for a stay and abeyance of this 24 proceeding so that he might have additional time to exhaust in state court two of his four 25 claims for relief. (Mot., ECF No. 3.) Crucially, however, the Petition filed with this Court 26 contains only two claims for relief, which the record demonstrates Petitioner already has 27 exhausted. (See Notice of Lodgment, ECF No. 8.) Respondent W.L. Montgomery 28 (“Respondent”) opposed Petitioner’s Motion (Opp’n, ECF No. 7) and Petitioner replied 1 (Reply, ECF No. 9). In his Reply, Petitioner identified for the first time the two additional 2 claims for relief for which he seeks a stay to exhaust. (Id.) 3 On January 7, 2022, the Honorable Ruth B. Montenegro, United States Magistrate 4 Judge, issued a Report & Recommendation (“R&R”), which recommended that: 5 (1) the Motion be construed not only as a request for a stay and abeyance but also 6 as a constructive amendment pursuant to Federal Rule of Civil Procedure 7 (“Rule”) 15(a), adding the two unexhausted claims to the Petition; 8 (2) the Court deny the Motion to the extent Petitioner seeks a stay and abeyance 9 pursuant to the procedure delineated in Rhines v. Weber, 544 U.S. 269 (2005) 10 (“Rhines”); and 11 (3) the Court grant the Motion to the extent Petitioner seeks a stay and abeyance 12 pursuant to the procedure delineated in Kelly v. Small, 315 F.3d 1063 (9th Cir. 13 2003) (“Kelly”), overruled on other grounds by Robbins v. Carey, 481 F.3d 14 1143 (9th Cir. 2007). 15 (R&R, ECF No. 12.) Notably, the R&R recommended that a stay issue pursuant to Kelly 16 even though doing so would leave pending in district court the unexhausted claims alleged 17 in Petitioner’s constructively amended Petition. 18 For the reasons stated below, the Court ADOPTS IN ITS ENTIRETY the R&R. 20 A. Guilty Plea and Sentencing 21 Petitioner is currently serving a 28-year sentence in state prison after pleading guilty 22 in October 2018 to one count of robbery, one count of conspiracy to commit aggravated 23 assault, one count of possession of cocaine for sale, one count of attempted extortion, and 24 one count of making criminal threats. (See ECF No. 8-3 at 12.) Additionally, as part of 25 that plea agreement, Petitioner admitted the truth of certain sentencing-enhancement 26 allegations, including a prior strike allegation. (Id.) In exchange, the prosecutor dismissed 27 the remaining nineteen counts with which Petitioner was charged. (Id.) The plea 28 1 agreement left to the discretion of the trial court the appropriate sentence to impose. (Id.) 2 On February 8, 2019, the trial court sentenced petitioner to 28 years in state prison. (Id.) 3 B. Direct Appeal 4 Petitioner appealed his sentence to the California Court of Appeal, arguing that the 5 trial court had abused its discretion by (1) rejecting his Romero motion1 and (2) imposing 6 fines and assessments in an amount exceeding $20,000 without first determining whether 7 Petitioner’s indigency precluded him from satisfying such a penalty. (Id.) The California 8 Court of Appeal rejected Petitioner’s arguments and affirmed the trial court’s sentence in 9 2020. (ECF No. 8-5.) Petitioner then appealed to the California Supreme Court, which 10 denied review on June 24, 2020. (ECF No. 8-7.) 11 C. Federal Habeas Corpus Petition 12 As mentioned above, Petitioner commenced this action on June 28, 2021 by filing 13 the instant Petition. The Petition lists two grounds for relief. (Pet. at 7.) They are the same 14 two grounds for relief Petitioner raised on direct appeal—that the trial court erred by 15 denying his Romero motion and by imposing hefty assessments and fines despite 16 Petitioner’s indigence. (Id.) Thus, on its face, the Petition is not “mixed,” i.e., it does not 17 contain both exhausted and unexhausted claims, but rather is fully exhausted. 18 D. Motion for Stay and Abeyance 19 Contemporaneous to initiating this federal habeas corpus proceeding, Petitioner filed 20 a Motion for a stay and abeyance of this matter, asserting he needs additional “[t]ime [t]o 21 [e]xhaust 2 [o]f [his] 4 [c]laims” as “[t]he process [h]as [b]een slow” due to the pandemic. 22 (Mot.) As mentioned above, the Petition contains only two exhausted claims. Thus, it is 23 1 Under California state law, a criminal “defendant with two more prior ‘strikes’—that is, certain 24 felony convictions—who is convicted of a felony must be sentenced under” California’s so-called three 25 strikes law, Cal. Penal Code §§ 667(b)–(i) and 1170.12, “to no less than 25 years to life” and “cannot receive ‘good time credits’ to reduce his sentence below the mandatory minimum term of 25 years.” 26 Brown v. Mayle, 283 F.3d 1019, 1021 (9th Cir. 2002) (citing In re Cervera, 24 Cal.4th 1073, 103 Cal. Rptr.2d 762, 16 P.3d 176, 181 (2001)). Under People v. Superior Court (Romero), 13 Cal.4th 497, 53 27 Cal.Rptr.2d 789, 917 P.2d 628 (1996), a defendant may request that a judge use their discretion to “strike” a defendant’s prior strikes for purposes of applying the three strikes law, if it would be “in furtherance of 28 1 entirely unclear on the face of the Petition to what two additional unexhausted claims 2 Petitioner refers. However, Petitioner’s Reply clarifies that he seeks to assert in this 3 proceeding two additional grounds for relief based upon (1) ineffective assistance of 4 counsel and (2) “illegal enhancement.” (Reply at 1–2.) On the record before the Court, it 5 does not appear that Petitioner ever has raised those grounds for relief in state court and, 6 thus, those grounds for relief are, in fact, unexhausted as Petitioner avers. 8 A. District Court Review 9 The Court reviews de novo those portions of an R&R to which objections are made. 10 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the 11 findings or recommendations made by the magistrate judge.” Id. “The statute makes it 12 clear,” however, “that the district judge must review the magistrate judge’s findings and 13 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 14 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also 15 Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where 16 no objections were filed, the district court had no obligation to review the magistrate 17 judge’s report). “Neither the Constitution nor the statute requires a district judge to review, 18 de novo, findings and recommendations that the parties themselves accept as correct.” 19 Reyna-Tapia, 328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and 20 this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, 21 de novo review of a[n] R & R is only required when an objection is made to the R & R.”); 22 Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (adopting report in its 23 entirety without review because neither party filed objections to the report despite the 24 opportunity to do so); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 25 2004). 26 B. Stay and Abeyance of “Mixed” Petitions 27 “[F]ederal courts may not adjudicate mixed petitions for habeas corpus, that is, 28 petitions containing both exhausted and unexhausted claims” as “the interests of comity 1 and federalism dictate that state courts must have the first opportunity to decide a 2 petitioner’s claims.” Rhines, 244 U.S. at 273 (citing Rose v. Lundy, 455 U.S. 509, 518–19 3 (1982)). The Supreme Court has stated that “[a]s a result of the interplay between 4 AEDPA’s 1-year statute of limitations and Lundy’s dismissal requirement, petitioners who 5 come to federal court with mixed petitions run the risk of forever losing their opportunity 6 for any federal review of their unexhausted claims.” Id. at 275. Thus, when presented with 7 a mixed petition, “a district court might stay the petition and hold it in abeyance while the 8 petitioner returns to state court to exhaust his previously unexhausted claims.” Id. “Under 9 this procedure,” known colloquially as a “Rhines stay,” “a district court [may] stay the 10 petition and hold it in abeyance while the petitioner returns to state court to exhaust his 11 previously unexhausted claims. Once the petitioner exhausts his state remedies, the district 12 court will lift the stay and allow the petitioner to proceed in federal court.” Id. at 275–76. 13 To invoke a Rhines stay, the petitioner must show as a preliminary matter that good 14 cause exists for his failure to exhaust the unexhausted claims in state court. Id. at 277. A 15 failure to show good cause in and of itself warrants denial of a Rhines stay. See Wooten v. 16 Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (“[T]he district court did not abuse its 17 discretion in concluding that [petitioner] did not have ‘good cause’ for failing to exhaust 18 his cumulative error claim” and “[a]s a result, [the court] need not reach the other . . . 19 factors in the Rhines test.”). However, where good cause is shown, courts will also look 20 to whether the unexhausted claims have potential merit and whether there is any indication 21 that the request for a stay is, in fact, and intentionally dilatory tactic. See Rhines, 544 U.S. 22 at 278. 23 In the Ninth Circuit, a petitioner also may seek a stay under the “withdrawal and 24 abeyance procedure” outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003); see also 25 King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009). Indeed, in Kelly, the Ninth Circuit 26 promulgated a “three-step procedure for mixed petitions, allowing (1) a petitioner to amend 27 his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold 28 in abeyance the amended, fully exhausted petition, providing the petitioner the opportunity 1 to proceed to state court to exhaust the deleted claims; and (3) once the claims have been 2 exhausted in state court, the petitioner to return to federal court and amend his federal 3 petition to include newly-exhausted claims.” King, 564 F.3d at 1138–39 (citing Calderon 4 v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1988)). The Ninth Circuit has 5 expressly held that a Kelly stay may issue even where the circumstances do not justify a 6 Rhines stay. Id. 7 The Ninth Circuit has opined that there are two critical distinctions between a stay 8 and abeyance pursuant to Rhines and a withdrawal and abeyance pursuant to Kelly. See 9 King, 564 F.3d at 1136, 1139. First, a petitioner need not satisfy Rhines’ “good cause” 10 standard to obtain a Kelly stay. Id. at 1136. Second, whereas “Rhines allows a district 11 court to stay a mixed petition, and does not require that unexhausted claims be dismissed 12 while the petitioner attempts to exhaust them in state court,” “[i]n contrast . . . Kelly allows 13 the stay of fully exhausted petitions, requiring that any unexhausted claims be dismissed.” 14 Id. at 1339 (citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)) (emphasis in 15 original). In other words, unlike a stay pursuant to Rhines, a Kelly stay “[does] not require 16 good cause but also [does] not leave the entire mixed petition pending in district court.” 17 Id. at 1136. 19 The deadline to file an objection to the R&R has come and passed, yet neither 20 Respondent nor Petitioner has filed objections or sought additional time to do so. 21 Consequently, it would be appropriate for the Court to adopt the R&R on that basis alone. 22 See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, this Court conducts a de novo review of 23 the record and Judge Montenegro’s findings and recommendations. 24 In doing so, the Court finds that Judge Montenegro accurately summarized the 25 factual and procedural history of this matter. Moreover, the Court finds well-reasoned 26 Judge Montenegro’s recommendation to construe liberally the Motion as a constructive 27 amendment to the Petition to add thereto the two unexhausted claims for relief Petitioner 28 1 identified in his Reply. See Watson v. Cale, No. 01cv1780-AJB, 2011 WL 6202788, at 2 *8 (S.D. Cal. Dec. 6, 2011) (holding that petition was constructively amended to include 3 unexhausted claim referenced in petitioner’s application for a Rhines stay, but not explicitly 4 mentioned on the face of the petition). So, too, is the Court persuaded Judge Montenegro’s 5 recommendation to deny the Motion to the extent it seeks a Rhines stay rests upon solid 6 legal foundation. As the R&R correctly observes, the record does not supply any 7 information that would enable this Court to find Petitioner satisfies the “good cause” 8 standard required for a Rhines stay. See Wooten, 540 F.3d at 1023 (holding failure to 9 satisfy “good cause” standard fells a request for a Rhines stay). 10 However, while the Court agrees with Judge Montenegro’s recommendation to grant 11 a stay and abeyance pursuant to Kelly, it finds that such a stay may not issue with 12 Petitioner’s constructively amended Petition being the operative one. Ninth Circuit 13 precedent is clear that district courts cannot retain jurisdiction of unexhausted claims in a 14 petition while a petitioner pursues exhaustion of such claims during the pendency of a Kelly 15 stay. See King, 564 F.3d at 1136, 1139 (citing Jackson, 425 F.3d at 661). Rather, a Kelly 16 stay requires dismissal of pending unexhausted claims from the petition. See McReary v. 17 Spearman, 18-cv-0789-CAB-BGS, 2018 WL 6567881, at *7 (S.D. Cal. Dec. 13, 2018). 18 Put differently, Kelly authorizes a stay only of fully exhausted petitions. See King, 564 19 F.3d at 1140 (“Rhines applies to stays of mixed petitions, whereas the three-step procedure 20 [of Kelly] applies to stays of fully exhausted petitions.” (quoting Jackson, 425 F.3d at 661)). 21 While Kelly procedures ordinarily require a petitioner to voluntarily dismiss 22 unexhausted claims from the petition himself by filing an amendment deleting the 23 unexhausted claims, see King, 564 F.3d at 1135, the Court finds that, here, requiring 24 Petitioner to file another amended petition deleting the unexhausted claims would be 25 entirely unnecessary considering the original Petition on its face contains only exhausted 26
27 2 The Court observes that had the R&R not made this threshold finding that the Motion constructively amended the Petition to include unexhausted claims, neither a Rhines stay nor Kelly stay 28 1 claims. Thus, the Court construes Petitioner’s original Petition (see ECF No. 1) as his 2 Second Amended Petition, which, as mentioned below, is fully exhausted in accordance 3 with Kelly procedures. 4 Accordingly, the Court GRANTS the Motion to the extent Petitioner seeks a stay 5 pursuant to Kelly. 6 In so holding, the Court need not reach the question whether the unexhausted claims 7 Petitioner intends to exhaust may later be presented in this federal habeas action by way of 8 amendment. The Court will address that question if, and when, Petitioner seeks leave to 9 present his newly exhausted claims to the Court via an amended federal petition pursuant 10 to the Kelly procedure. However, Petitioner is warned that if he cannot demonstrate that 11 the newly exhausted claims are timely or relate back to the original exhausted claims, he 12 will be unable to litigate them in this Court. 14 For the foregoing reasons, the Court ADOPTS IN ITS ENTIRETY the R&R. 15 (ECF No. 12.) Specifically, the original Petition is constructively amended to add all four 16 claims identified in Petitioner’s Reply. Petitioner’s request for a stay and abeyance of his 17 “mixed” amended Petition is DENIED pursuant to Rhines v. Weber, 544 U.S. 269 (2005) 18 and GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on 19 other grounds by Robbins v. Carey, 481 F.3d 1143, 1148–49 (9th Cir. 2007). 20 Consequently, the Court construes the original Petition as Petitioner’s Second Amended 21 Petition, thereby releasing from the Court’s jurisdiction the two unexhausted claims 22 pending the Kelly stay. 23 The Court ORDERS the Clerk of Court to administratively close this case for the 24 duration of the stay time. 25 26 27 28 I By no later than 30 days of the California Supreme Court issuing an order resolving 2 || Petitioner’s unexhausted claims, Petitioner shall file (1) a motion to lift the stay and (2) an 3 |}amended writ of habeas corpus addressing the timeliness of his newly exhausted claims, 4 ||together with a proposed amended petition. 6 A , 7 || DATED: February 4, 2022 Lin A (Lyohaa 6 g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _QO.