1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG
8 Petitioner, ORDER DENYING PETITIONER’S REQUEST FOR STAY; REQUIRING 9 v. ELECTION BY PETITIONER
10 MATTHEW RODRIQUEZ, Re: Dkt. No. 16 11 Respondent.
12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254, challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. Now 15 pending before the Court is Petitioner’s request to stay these proceedings while he returns to state 16 court to exhaust ineffective assistance of counsel (“IAC”) subclaims Nos. 2 through 8. Dkt. No. 17 16. Respondent has not filed an opposition, and the deadline to do so has since passed. For the 18 reasons set forth below, the Court DENIES Petitioner’s request for a Rhines stay without prejudice 19 to seeking a King/Kelly stay and direct Petitioner to make an election. 20 DISCUSSION 21 I. Background 22 On June 10, 2021, the Court found that the amended petition alleged a cognizable Miranda 23 claim and the following ineffective assistance of counsel claims: (1) counsel called Nicolas Pittet 24 as a defense witness without vetting Pittet beforehand; (2) counsel failed to effectively examine 25 Pittet; (3) counsel failed to impeach Avila as directed by Petitioner; (4) counsel incorrectly 26 claimed that the Golfsmith was next to the Whole Foods, thereby undermining his credibility with 27 the jury; (5) counsel incorrectly argued that the primary Miranda argument was the duration of 1 (7) counsel failed to question prosecution witnesses in a manner that reflected Petitioner’s detailed 2 accounting of his whereabouts on that day and that reflected Petitioner’s understanding as to why 3 Availa had been alerted to Petitioner’s behavior that day; (8) counsel failed to ensure Deputy 4 Chow’s testimony at trial; and (9) counsel advised Petitioner not to testify at trial. Dkt. No. 10 at 5 2. 6 On October 13, 2021, the Court granted Respondent’s motion to dismiss the petition for 7 failure to exhaust state remedies and required Petitioner to elect whether he wished to (1) dismiss 8 the unexhausted IAC subclaims Nos. 2 through 8, and go forward in this action with only the 9 exhausted IAC subclaim No. 1 and the Miranda claim; or (2) dismiss this action and return to state 10 court to exhaust IAC subclaims Nos. 2 through 8 before filing a new federal petition presenting all 11 of his claims; or (3) file a motion for a stay of these proceedings while he exhausts IAC subclaims 12 Nos. 2 through 8 in the state courts. 13 II. Motion to Stay 14 Petitioner has filed a request to stay these proceedings while he returns to state court to 15 exhaust IAC subclaims Nos. 2 through 8. Petitioner states that he did not insist on including IAC 16 subclaims Nos. 2 through 8 because appellate counsel advised Petitioner that IAC subclaim No. 1 17 was more than sufficient to secure state habeas relief and that it was neither necessary nor 18 beneficial to include IAC subclaims Nos. 2 through 8. Petitioner states that he now regrets this 19 decision and wants an opportunity to present all his IAC claims, and that he believes that these 20 claims all have merit. The Court presumes that Petitioner is seeking a stay pursuant to Rhines 21 because he does not seek to amend the petition to delete the unexhausted claims. 22 A. Standard 23 In Rhines v. Weber, 544 U.S. 269, 277-78 (2005), the United States Supreme Court held 24 that a district court may stay mixed habeas petitions to allow the petitioner to exhaust in state 25 court. Rhines, 544 U.S. at 277-78. Rhines requires a petitioner to show (1) “good cause” for his 26 failure to exhaust his claims in state court; (2) that his unexhausted claims are not “plainly 27 meritless;” and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Rhines, 1 supported by sufficient evidence to justify the failure to exhaust. Blake v. Baker, 745 F.3d 977, 2 982 (9th Cir. 2014). A claim of ineffective assistance by postconviction counsel supported by 3 evidence may constitute good cause under Rhines. See id. at 982-84 (reversing denial of stay 4 when petitioner supported his good cause argument of state postconviction ineffective assistance 5 of counsel with evidence that counsel failed to discover, investigate and present to the state courts 6 readily available evidence of petitioner’s abusive upbringing and compromised mental condition); 7 but see Wooten v. Kirkland, 540 F.3d 1019, 1024 n.2 (9th Cir. 2008) (upholding denial of stay 8 because petitioner’s incorrect “impression” that counsel had raised claims to California Supreme 9 Court on direct appeal did not establish good cause under Rhines; rejecting petitioner’s claim that 10 counsel’s failure to exhaust claims on direct appeal was “ineffective” because petitioner had not 11 “developed” any argument that counsel’s performance was deficient and prejudicial under 12 Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). The district court’s discretion to stay a 13 mixed petition is circumscribed by AEDPA’s stated purposes of reducing delay in the execution of 14 criminal sentences and encouraging petitioners to seek relief in the state courts before filing their 15 claims in federal court. Rhines, 544 U.S. at 277. Because the use of a stay and abeyance 16 procedure has the potential to undermine these dual purposes of AEDPA, its use is only 17 appropriate where the district court has first determined that there was good cause for the 18 petitioner’s failure to exhaust the claims in state court and that the claims are potentially 19 meritorious. Id. Moreover, where granting a stay, the district court must effectuate the timeliness 20 concerns in AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.” 21 Id. at 278. 22 B. Analysis 23 Here, the unexhausted claims are not plainly meritless and there is no nothing in the record 24 that suggests that Petitioner has engaged in intentionally dilatory litigation tactics. However, 25 Petitioner has not demonstrated the good cause required for a Rhines stay. Appellate counsel’s 26 advice, whether or not erroneous, that IAC subclaims Nos. 2 through 8 should be omitted in the 27 1 appellate brief does not establish good cause1 because Petitioner could have disregarded the advice 2 and the advice did not prevent Petitioner from exhausting these issues in a state habeas petition. 3 To the extent that Petitioner is arguing that he was unaware of the exhaustion requirement, i.e. did 4 not realize that failing to include IAC subclaims Nos. 2 through 8 would result in failure to 5 exhaust state court remedies, ignorance of the law is common among pro se litigants and does not 6 constitute good cause under Rhines for failure to exhaust. See, e.g., Aguirre v. Harrington, No. 7 CV 09–08337 SJO (SS), 2010 WL 2680320, at *4 (C.D. Cal. June 9, 2010) (concluding that the 8 Ninth Circuit has directly rejected arguments that “mere ignorance and reliance on counsel are 9 sufficient to show good cause under Rhines” ); Hamilton v. Clark, No. CIV S–08–1008 EFB P, 10 2010 WL 530111, at *2 (E.D. Cal. Feb.9, 2010) (holding that petitioner’s lack of understanding of 11 exhaustion requirement and limited access to prison law library were insufficient to show good 12 cause for failure to exhaust) (and cases cited therein). Accordingly, Petitioner’s request for a 13 Rhines stay is DENIED.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG
8 Petitioner, ORDER DENYING PETITIONER’S REQUEST FOR STAY; REQUIRING 9 v. ELECTION BY PETITIONER
10 MATTHEW RODRIQUEZ, Re: Dkt. No. 16 11 Respondent.
12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254, challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. Now 15 pending before the Court is Petitioner’s request to stay these proceedings while he returns to state 16 court to exhaust ineffective assistance of counsel (“IAC”) subclaims Nos. 2 through 8. Dkt. No. 17 16. Respondent has not filed an opposition, and the deadline to do so has since passed. For the 18 reasons set forth below, the Court DENIES Petitioner’s request for a Rhines stay without prejudice 19 to seeking a King/Kelly stay and direct Petitioner to make an election. 20 DISCUSSION 21 I. Background 22 On June 10, 2021, the Court found that the amended petition alleged a cognizable Miranda 23 claim and the following ineffective assistance of counsel claims: (1) counsel called Nicolas Pittet 24 as a defense witness without vetting Pittet beforehand; (2) counsel failed to effectively examine 25 Pittet; (3) counsel failed to impeach Avila as directed by Petitioner; (4) counsel incorrectly 26 claimed that the Golfsmith was next to the Whole Foods, thereby undermining his credibility with 27 the jury; (5) counsel incorrectly argued that the primary Miranda argument was the duration of 1 (7) counsel failed to question prosecution witnesses in a manner that reflected Petitioner’s detailed 2 accounting of his whereabouts on that day and that reflected Petitioner’s understanding as to why 3 Availa had been alerted to Petitioner’s behavior that day; (8) counsel failed to ensure Deputy 4 Chow’s testimony at trial; and (9) counsel advised Petitioner not to testify at trial. Dkt. No. 10 at 5 2. 6 On October 13, 2021, the Court granted Respondent’s motion to dismiss the petition for 7 failure to exhaust state remedies and required Petitioner to elect whether he wished to (1) dismiss 8 the unexhausted IAC subclaims Nos. 2 through 8, and go forward in this action with only the 9 exhausted IAC subclaim No. 1 and the Miranda claim; or (2) dismiss this action and return to state 10 court to exhaust IAC subclaims Nos. 2 through 8 before filing a new federal petition presenting all 11 of his claims; or (3) file a motion for a stay of these proceedings while he exhausts IAC subclaims 12 Nos. 2 through 8 in the state courts. 13 II. Motion to Stay 14 Petitioner has filed a request to stay these proceedings while he returns to state court to 15 exhaust IAC subclaims Nos. 2 through 8. Petitioner states that he did not insist on including IAC 16 subclaims Nos. 2 through 8 because appellate counsel advised Petitioner that IAC subclaim No. 1 17 was more than sufficient to secure state habeas relief and that it was neither necessary nor 18 beneficial to include IAC subclaims Nos. 2 through 8. Petitioner states that he now regrets this 19 decision and wants an opportunity to present all his IAC claims, and that he believes that these 20 claims all have merit. The Court presumes that Petitioner is seeking a stay pursuant to Rhines 21 because he does not seek to amend the petition to delete the unexhausted claims. 22 A. Standard 23 In Rhines v. Weber, 544 U.S. 269, 277-78 (2005), the United States Supreme Court held 24 that a district court may stay mixed habeas petitions to allow the petitioner to exhaust in state 25 court. Rhines, 544 U.S. at 277-78. Rhines requires a petitioner to show (1) “good cause” for his 26 failure to exhaust his claims in state court; (2) that his unexhausted claims are not “plainly 27 meritless;” and (3) that he has not engaged in “intentionally dilatory litigation tactics.” Rhines, 1 supported by sufficient evidence to justify the failure to exhaust. Blake v. Baker, 745 F.3d 977, 2 982 (9th Cir. 2014). A claim of ineffective assistance by postconviction counsel supported by 3 evidence may constitute good cause under Rhines. See id. at 982-84 (reversing denial of stay 4 when petitioner supported his good cause argument of state postconviction ineffective assistance 5 of counsel with evidence that counsel failed to discover, investigate and present to the state courts 6 readily available evidence of petitioner’s abusive upbringing and compromised mental condition); 7 but see Wooten v. Kirkland, 540 F.3d 1019, 1024 n.2 (9th Cir. 2008) (upholding denial of stay 8 because petitioner’s incorrect “impression” that counsel had raised claims to California Supreme 9 Court on direct appeal did not establish good cause under Rhines; rejecting petitioner’s claim that 10 counsel’s failure to exhaust claims on direct appeal was “ineffective” because petitioner had not 11 “developed” any argument that counsel’s performance was deficient and prejudicial under 12 Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). The district court’s discretion to stay a 13 mixed petition is circumscribed by AEDPA’s stated purposes of reducing delay in the execution of 14 criminal sentences and encouraging petitioners to seek relief in the state courts before filing their 15 claims in federal court. Rhines, 544 U.S. at 277. Because the use of a stay and abeyance 16 procedure has the potential to undermine these dual purposes of AEDPA, its use is only 17 appropriate where the district court has first determined that there was good cause for the 18 petitioner’s failure to exhaust the claims in state court and that the claims are potentially 19 meritorious. Id. Moreover, where granting a stay, the district court must effectuate the timeliness 20 concerns in AEDPA by placing “reasonable limits on a petitioner’s trip to state court and back.” 21 Id. at 278. 22 B. Analysis 23 Here, the unexhausted claims are not plainly meritless and there is no nothing in the record 24 that suggests that Petitioner has engaged in intentionally dilatory litigation tactics. However, 25 Petitioner has not demonstrated the good cause required for a Rhines stay. Appellate counsel’s 26 advice, whether or not erroneous, that IAC subclaims Nos. 2 through 8 should be omitted in the 27 1 appellate brief does not establish good cause1 because Petitioner could have disregarded the advice 2 and the advice did not prevent Petitioner from exhausting these issues in a state habeas petition. 3 To the extent that Petitioner is arguing that he was unaware of the exhaustion requirement, i.e. did 4 not realize that failing to include IAC subclaims Nos. 2 through 8 would result in failure to 5 exhaust state court remedies, ignorance of the law is common among pro se litigants and does not 6 constitute good cause under Rhines for failure to exhaust. See, e.g., Aguirre v. Harrington, No. 7 CV 09–08337 SJO (SS), 2010 WL 2680320, at *4 (C.D. Cal. June 9, 2010) (concluding that the 8 Ninth Circuit has directly rejected arguments that “mere ignorance and reliance on counsel are 9 sufficient to show good cause under Rhines” ); Hamilton v. Clark, No. CIV S–08–1008 EFB P, 10 2010 WL 530111, at *2 (E.D. Cal. Feb.9, 2010) (holding that petitioner’s lack of understanding of 11 exhaustion requirement and limited access to prison law library were insufficient to show good 12 cause for failure to exhaust) (and cases cited therein). Accordingly, Petitioner’s request for a 13 Rhines stay is DENIED. 14 This denial is without prejudice to seeking a stay pursuant to King/Kelly. Pursuant to the 15 Kelly procedure, (1) a petitioner amends his petition to delete any unexhausted claims and seeks a 16 stay of the amended, fully exhausted petition; (2) the court stays and holds in abeyance the 17 amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court 18 to exhaust the deleted claims; and (3) the petitioner later amends his petition and reattaches the 19 newly exhausted claims to the original petition. King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 20 2000) (citing Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on other grounds 21 by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)). A petitioner seeking to stay an action 22 pursuant to King/Kelly is not required to show good cause as under Rhines. Id. at 1141-43. 23 However, with regard to the third step, the court may only allow the petitioner to reattach the 24
25 1 Nor does the record indicate that appellate counsel’s advice to only raise IAC subclaim No. 1 constituted ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668 26 (1984). Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant. See Jones v. Barnes, 463 U.S. 745, 751-54 (1983); Gerlaugh v. Stewart, 27 129 F.3d 1027, 1045 (9th Cir. 1997); Miller v. Keeney, 882 F.2d 1428, 1434 n.10 (9th Cir. 1989). 1 newly-exhausted claims if he can demonstrate that the amendment satisfies both Mayle v. Felix, 2 545 U.S. 644, 655 (2005), by sharing a “common core of operative facts,” and Duncan v. Walker, 3 533 U.S. 167 (2001), by complying with AEDPA’s statute of limitations. 4 C. Requiring Petitioner to Make an Election 5 Petitioner has indicated that he wishes to proceed with this action. Instead of an outright 6 dismissal of the action, this Court will allow Petitioner to choose whether he wants to: (1) dismiss 7 the unexhausted IAC subclaims Nos. 2 through 8, and go forward in this action with only the 8 exhausted IAC subclaim No. 1 and the Miranda claim; or (2) dismiss this action and return to state 9 court to exhaust IAC subclaims Nos. 2 through 8 before filing a new federal petition presenting all 10 of his claims; or (3) seek a King/Kelly stay by filing both a second amended petition that contains 11 only the exhausted claims and a motion for a stay of these proceedings while he exhausts IAC 12 subclaims Nos. 2 through 8 in the state courts. Petitioner is cautioned that each of the options has 13 risks which he should take into account in deciding which option to choose. If he chooses option 14 (1) and goes forward with only his exhausted claims, he may face dismissal of any later-filed 15 petition. See 28 U.S.C. § 2244(b). If he chooses option (2), dismissing this action and returning 16 to state court to exhaust all claims before filing a new federal petition, his new federal petition 17 might be rejected as time-barred. See 28 U.S.C. § 2244(d). If he chooses option (3), whether he 18 can amend the petition a fourth time to add back in any newly-exhausted claims will depend on 19 whether he can demonstrate that the amendment to add back in the newly-exhausted claims 20 satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common core of operative 21 facts,” and Duncan v. Walker, 533 U.S. 167 (2001), by complying with AEDPA’s statute of 22 limitations. Under option (3), this action stalls: this Court will do nothing further to resolve the 23 case while Petitioner is diligently seeking relief in state court. 24 CONCLUSION 25 For the reasons set forth above, the Court orders as follows. 26 1. Petitioner’s request for a Rhines stay is DENIED without prejudice to seeking a 27 King/Kelly stay. Dkt. No. 16. 1 notice in which he states whether he chooses to (1) dismiss the unexhausted IAC subclaim Nos. 2 2 || through 8, and go forward in this action with only the exhausted IAC subclaim No. | and the 3 Miranda claim, or (2) dismiss this action and return to state court to exhaust IAC subclaims Nos. 2 4 || through 8 before filing a new federal petition presenting all of his claims, or (3) seek a King/Kelly 5 stay by filing both a second amended petition that contains only exhausted claims and a motion for 6 a stay of these proceedings while he exhausts IAC subclaims Nos. 2 through 8 in the state courts. 7 If he chooses Option (1) or Option (2), his filing need not be a long document; it is sufficient if he 8 || files a one-page document entitled “Notice of Choice by Petitioner” and states simply: “Petitioner 9 || chooses to proceed under option _ provided in the Order Denying Petitioner’s Request for Stay; 10 || Requiring Election By Petitioner.” Petitioner would have to insert a number in place of the blank 11 space to indicate which of the first two options he chooses. If he chooses Option (3), within 12 || twenty-eight (28) days from the date of this order, Petitioner must file a second amended petition 13 that contains only exhausted claims and a motion requesting a King/Kelly stay. If Petitioner does 14 || not choose one of the three options or file a motion by the deadline, the Court will dismiss the 3 15 unexhausted IAC subclaims Nos. 2 through 8 and issue a separate order requiring respondent to a 16 show cause why relief should not be granted on the remaining IAC subclaim No. 1 and the 3 17 || Miranda claim. 18 This order terminates Dkt. No. 16. 19 IT IS SO ORDERED. 20 || Dated: 12/13/2021 21 Abepured 3 Sb) HAYWOOD S. GILLIAM, JR. 22 United States District Judge 23 24 25 26 27 28