1 2 3 6 7 JUAN M. GUERRA, Case No. 19-cv-07165-HSG
8 Petitioner, AMENDED ORDER TO SHOW CAUSE; GRANTING STAY; STAYING 9 v. AND ADMINISTRATIVELY CLOSING ACTION Re: Dkt. No. 15 11 Respondent.
12 13 Petitioner, an inmate at Santa Clara County Jail, filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Now pending before the Court is petitioner’s request 15 to stay this action. Dkt. No. 15. Respondent has filed an opposition. Dkt. No 16. Petitioner has 16 not filed a reply and the deadline to do so has since passed. The Court has reviewed in detail the 17 pleadings in this action and, for the reasons set forth below, issues an amended order to show 18 cause and GRANTS petitioner’s request to stay this action. 20 On November 27, 2019, the Court found that the petition stated the following cognizable 21 claims: (1) the trial court erred in admitting evidence that, the day before the shooting, petitioner 22 had confronted the Norteños and sought to fight them; (2) the trial court erred in excluding 23 evidence that Jose Espino’s family had approached Jose Espino’s accomplice in an unrelated 24 matter to “get their stories straight,” in violation of petitioner’s right to present a complete defense; 25 (3) the trial court erred in failing to sua sponte instruct the jury that it could only consider Jose 26 Espino’s guilty plea for a limited purpose; (4) the prosecutor committed prejudicial misconduct 27 when he distorted the reasonable doubt standard; and (5) cumulative error. Dkt. No. 4. The Court 1 On April 30, 2020, the Court granted respondent’s motion to dismiss Claim Nos. 1, 3, and 2 4 as unexhausted and Claim No. 5 as non-cognizable. Dkt. No. 13.1 The Court required petitioner 3 to elect whether he wished to: (1) dismiss the unexhausted claims and go forward in this action 4 with only the remaining claims, or (2) dismiss this action and return to state court to exhaust all of 5 his claims before returning to federal court to present all of his claims in a new petition, or (3) 6 move for a stay of these proceedings while he exhausted his state court remedies for the 7 unexhausted claims. Id. 9 I. Amended Order to Show Cause 10 In considering petitioner’s request to stay this action, the Court has reviewed the pleadings 11 and finds that the operative petition (Dkt. No. 1) states two additional claims that were not 12 identified in the order to show cause (Dkt. No. 4), specifically two ineffective assistance of 13 counsel claims, numbered as Claim Nos. 6 and 7 below. Accordingly, the Court amends the order 14 to show cause as follows. 15 1 The motion to dismiss was filed on February 4, 2020. Dkt. No. 8. Petitioner’s opposition was 16 originally due on March 3, 2020, but the Court granted petitioner an extension of time until April 9, 2020 to file his opposition. Dkt. Nos. 10, 12. On April 30, 2020, the Court issued its order 17 granting the motion to dismiss. Dkt. No. 13. On May 5, 2020, the undersigned received petitioner’s late-filed opposition to the motion to dismiss. Dkt. No. 14. Although the opposition 18 was received by the Court on April 27, 2020, it was not docketed and made available to the undersigned until May 5, 2020 due to COVID-19’s impact on court operations. The Court has 19 carefully considered petitioner’s opposition and concludes that the opposition does not compel reconsideration of its order granting the motion to dismiss. The two arguments presented in the 20 opposition were addressed and rejected in the Court’s order granting the motion to dismiss. Petitioner’s first argument is that he raised Claim Nos. 3 and 4 in his petition for review when he 21 argued that defense counsel was ineffective for failing to request a jury instruction limiting the use of Espino’s guilty plea and for failing to object to the alleged prosecutorial misconduct. Dkt. No. 22 14 at 2. The Court rejected this argument because an ineffective assistance of counsel claim arises from a different constitutional provision, and is therefore distinct from, an instructional error claim 23 or prosecutorial misconduct claim. Dkt. No. 13 at 4. A claim is not fairly presented for the purposes of exhaustion if it arises under a different federal constitutional provision than the claim 24 presented in the state courts. Cf. Picard v. Connor, 404 U.S. 270, 276-77 (1971) (petitioner’s claim that his indictment was invalid because state law failed to apply the Fifth Amendment grand 25 jury requirement did not present, or exhaust, his equal protection claim); see also Brown v. Cuyler, 669 F.2d 155, 159-60 (3d Cir. 1982). Petitioner’s second argument is that he raised these claims 26 on direct appeal. Dkt. No. 14 at 2. As explained in the Court’s order granting the motion to dismiss, exhaustion requires petitioners to present their claims to the state’s highest court. See 28 27 U.S.C. § 2254(b), (c); Duncan v. Henry, 513 U.S. 364, 368 (1995); O’Sullivan v. Boerckel, 526 1 The Court finds that, liberally construed, the petition alleges the following grounds for 2 federal habeas relief that merit an answer from respondent: (1) the trial court erred in admitting 3 evidence that the day before the shooting petitioner had confronted the Norteños and sought to 4 fight them; (2) the trial court erred in excluding evidence that Jose Espino’s family had 5 approached Jose Espino’s accomplice in an unrelated matter to “get their stories straight,” in 6 violation of petitioner’s right to present a complete defense; (3) the trial court erred in failing to 7 sua sponte instruct the jury that it could only consider Jose Espino’s guilty plea for a limited 8 purpose; (4) the prosecutor committed prejudicial misconduct when he distorted the reasonable 9 doubt standard; (5) cumulative error; (6) trial counsel was ineffective for failing to request the 10 limiting instruction discussed in Claim No. 3; and (7) trial counsel was ineffective for failing 11 to object to the prosecutorial misconduct identified in Claim No. 4. 12 Claim Nos. 6 and 7 are exhausted. In petitioner’s petition for review filed with the 13 California Supreme Court on August 7, 2018, petitioner argued inter alia that trial counsel was 14 ineffective for failing to request an instruction that Jose Espino’s guilty plea could not be 15 considered as substantive evidence of guilt and for failing to object to the prosecutor’s argument 16 which distorted the reasonable doubt standard. Dkt. No. 8-1 at 252-255. Because Claim Nos. 6 17 and 7 are exhausted, Claim No. 5, which alleges cumulative error, is cognizable. The Court 18 therefore vacates the portion of its April 30, 2020 Order finding Claim No. 5 non-cognizable. 19 This petition remains a mixed petition. Claim Nos. 2, 5, 6, and 7 are exhausted, but Claim 20 Nos. 1, 3 and 4 are unexhausted. 21 II. Request for Stay 22 Petitioner has filed a motion with the Court requesting that the Court stay these 23 proceedings so that he may exhaust his state court remedies for his unexhausted claims. Dkt. No. 24 15. He states that the failure to exhaust Claim Nos. 1, 3 and 4 was because he believed it was in 25 his best interest to rely on appointed counsel since he was unfamiliar with the law. Operating 26 under that belief, he wrongly assumed that counsel had raised Claim Nos.
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1 2 3 6 7 JUAN M. GUERRA, Case No. 19-cv-07165-HSG
8 Petitioner, AMENDED ORDER TO SHOW CAUSE; GRANTING STAY; STAYING 9 v. AND ADMINISTRATIVELY CLOSING ACTION Re: Dkt. No. 15 11 Respondent.
12 13 Petitioner, an inmate at Santa Clara County Jail, filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Now pending before the Court is petitioner’s request 15 to stay this action. Dkt. No. 15. Respondent has filed an opposition. Dkt. No 16. Petitioner has 16 not filed a reply and the deadline to do so has since passed. The Court has reviewed in detail the 17 pleadings in this action and, for the reasons set forth below, issues an amended order to show 18 cause and GRANTS petitioner’s request to stay this action. 20 On November 27, 2019, the Court found that the petition stated the following cognizable 21 claims: (1) the trial court erred in admitting evidence that, the day before the shooting, petitioner 22 had confronted the Norteños and sought to fight them; (2) the trial court erred in excluding 23 evidence that Jose Espino’s family had approached Jose Espino’s accomplice in an unrelated 24 matter to “get their stories straight,” in violation of petitioner’s right to present a complete defense; 25 (3) the trial court erred in failing to sua sponte instruct the jury that it could only consider Jose 26 Espino’s guilty plea for a limited purpose; (4) the prosecutor committed prejudicial misconduct 27 when he distorted the reasonable doubt standard; and (5) cumulative error. Dkt. No. 4. The Court 1 On April 30, 2020, the Court granted respondent’s motion to dismiss Claim Nos. 1, 3, and 2 4 as unexhausted and Claim No. 5 as non-cognizable. Dkt. No. 13.1 The Court required petitioner 3 to elect whether he wished to: (1) dismiss the unexhausted claims and go forward in this action 4 with only the remaining claims, or (2) dismiss this action and return to state court to exhaust all of 5 his claims before returning to federal court to present all of his claims in a new petition, or (3) 6 move for a stay of these proceedings while he exhausted his state court remedies for the 7 unexhausted claims. Id. 9 I. Amended Order to Show Cause 10 In considering petitioner’s request to stay this action, the Court has reviewed the pleadings 11 and finds that the operative petition (Dkt. No. 1) states two additional claims that were not 12 identified in the order to show cause (Dkt. No. 4), specifically two ineffective assistance of 13 counsel claims, numbered as Claim Nos. 6 and 7 below. Accordingly, the Court amends the order 14 to show cause as follows. 15 1 The motion to dismiss was filed on February 4, 2020. Dkt. No. 8. Petitioner’s opposition was 16 originally due on March 3, 2020, but the Court granted petitioner an extension of time until April 9, 2020 to file his opposition. Dkt. Nos. 10, 12. On April 30, 2020, the Court issued its order 17 granting the motion to dismiss. Dkt. No. 13. On May 5, 2020, the undersigned received petitioner’s late-filed opposition to the motion to dismiss. Dkt. No. 14. Although the opposition 18 was received by the Court on April 27, 2020, it was not docketed and made available to the undersigned until May 5, 2020 due to COVID-19’s impact on court operations. The Court has 19 carefully considered petitioner’s opposition and concludes that the opposition does not compel reconsideration of its order granting the motion to dismiss. The two arguments presented in the 20 opposition were addressed and rejected in the Court’s order granting the motion to dismiss. Petitioner’s first argument is that he raised Claim Nos. 3 and 4 in his petition for review when he 21 argued that defense counsel was ineffective for failing to request a jury instruction limiting the use of Espino’s guilty plea and for failing to object to the alleged prosecutorial misconduct. Dkt. No. 22 14 at 2. The Court rejected this argument because an ineffective assistance of counsel claim arises from a different constitutional provision, and is therefore distinct from, an instructional error claim 23 or prosecutorial misconduct claim. Dkt. No. 13 at 4. A claim is not fairly presented for the purposes of exhaustion if it arises under a different federal constitutional provision than the claim 24 presented in the state courts. Cf. Picard v. Connor, 404 U.S. 270, 276-77 (1971) (petitioner’s claim that his indictment was invalid because state law failed to apply the Fifth Amendment grand 25 jury requirement did not present, or exhaust, his equal protection claim); see also Brown v. Cuyler, 669 F.2d 155, 159-60 (3d Cir. 1982). Petitioner’s second argument is that he raised these claims 26 on direct appeal. Dkt. No. 14 at 2. As explained in the Court’s order granting the motion to dismiss, exhaustion requires petitioners to present their claims to the state’s highest court. See 28 27 U.S.C. § 2254(b), (c); Duncan v. Henry, 513 U.S. 364, 368 (1995); O’Sullivan v. Boerckel, 526 1 The Court finds that, liberally construed, the petition alleges the following grounds for 2 federal habeas relief that merit an answer from respondent: (1) the trial court erred in admitting 3 evidence that the day before the shooting petitioner had confronted the Norteños and sought to 4 fight them; (2) the trial court erred in excluding evidence that Jose Espino’s family had 5 approached Jose Espino’s accomplice in an unrelated matter to “get their stories straight,” in 6 violation of petitioner’s right to present a complete defense; (3) the trial court erred in failing to 7 sua sponte instruct the jury that it could only consider Jose Espino’s guilty plea for a limited 8 purpose; (4) the prosecutor committed prejudicial misconduct when he distorted the reasonable 9 doubt standard; (5) cumulative error; (6) trial counsel was ineffective for failing to request the 10 limiting instruction discussed in Claim No. 3; and (7) trial counsel was ineffective for failing 11 to object to the prosecutorial misconduct identified in Claim No. 4. 12 Claim Nos. 6 and 7 are exhausted. In petitioner’s petition for review filed with the 13 California Supreme Court on August 7, 2018, petitioner argued inter alia that trial counsel was 14 ineffective for failing to request an instruction that Jose Espino’s guilty plea could not be 15 considered as substantive evidence of guilt and for failing to object to the prosecutor’s argument 16 which distorted the reasonable doubt standard. Dkt. No. 8-1 at 252-255. Because Claim Nos. 6 17 and 7 are exhausted, Claim No. 5, which alleges cumulative error, is cognizable. The Court 18 therefore vacates the portion of its April 30, 2020 Order finding Claim No. 5 non-cognizable. 19 This petition remains a mixed petition. Claim Nos. 2, 5, 6, and 7 are exhausted, but Claim 20 Nos. 1, 3 and 4 are unexhausted. 21 II. Request for Stay 22 Petitioner has filed a motion with the Court requesting that the Court stay these 23 proceedings so that he may exhaust his state court remedies for his unexhausted claims. Dkt. No. 24 15. He states that the failure to exhaust Claim Nos. 1, 3 and 4 was because he believed it was in 25 his best interest to rely on appointed counsel since he was unfamiliar with the law. Operating 26 under that belief, he wrongly assumed that counsel had raised Claim Nos. 1, 3, and 4 in the 27 petition for review to the California Supreme Court, because these claims had been raised on 1 Respondent has filed an opposition, arguing that petitioner has not met the standard for 2 showing good cause because neither lack of legal knowledge or lack of knowledge regarding the 3 content of counsel’s filings constitute good cause, and because petitioner has only made bald 4 assertions of good cause without providing details. Dkt. No. 16. 5 There are two kinds of stays available in a habeas action: the Rhines stay and the 6 King/Kelly stay. A Rhines stay is available for mixed petitions, i.e. petitions containing exhausted 7 and unexhausted claims, whereas the King/Kelly stay applies to fully exhausted petitions and 8 requires a petitioner to take additional steps when the petitioner returns to federal court. See 9 Jackson v. Roe , 425 F.3d 654, 661 (9th Cir. 2005). 10 A Rhines stay “is only appropriate when the district court determines there was good cause 11 for the petitioner’s failure to exhaust his claims first in state court,” the claims are not meritless, 12 and there are no intentionally dilatory litigation tactics by the petitioner. Rhines, 544 U.S. at 277- 13 78. Rhines did not set forth criteria for determining what constitutes good cause for failure to 14 exhaust. “Good cause” does not equate with “extraordinary circumstances,” as the latter is a more 15 difficult showing to make. See Jackson, 425 F.3d at 661-62. However, the Court must interpret 16 whether a petitioner has shown good cause for a failure to exhaust in light of the Supreme Court’s 17 instruction in Rhines that the district court should only stay mixed petitions in limited 18 circumstances. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). The Court must also be 19 mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to 20 exhaust their claims in state court before filing in federal court. Id. (citing to Rhines, 544 U.S. at 21 276-77). The Rhines good cause standard based on ineffective assistance of counsel is not any 22 more demanding than the cause standard articulated in Martinez v. Ryan, 566 U.S. 1 (2012), to 23 excuse state procedural default. Blake v. Baker, 745 F.3d 977, 984 (9th Cir. 2014). An assertion 24 of good cause turns on whether the petitioner can set forth a reasonable excuse supported by 25 sufficient evidence to justify the failure to exhaust. Baker, 745 F.3d at 982 (reversing denial of 26 stay when petitioner supported his good cause argument with evidence including a 27 neuropsychological and psychological evaluation and many declarations); Wooten, 540 F.3d at 1 claims to the California Supreme Court on direct appeal did not establish good cause under Rhines 2 for failure to exhaust claims earlier). 3 A petitioner seeking to stay an action pursuant to King/Kelly is not required to show good 4 cause as under Rhines, but rather must eventually show that the amendment of any newly 5 exhausted claims back into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by 6 sharing a “common core of operative facts,” and Duncan v. Walker, 533 U.S. 167 (2001), by 7 complying with the statute of limitations. King, 564 F.3d at 1141-43. To obtain a King/Kelly stay 8 for a mixed petition, a petitioner must follow the procedure outlined in Kelly v. Small, 315 F.3d 9 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 10 2007): “(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays 11 and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the 12 opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later 13 amends his petition and re-attaches the newly-exhausted claims to the original petition.” King v. 14 Ryan, 564 F.3d 1133, 1134 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1070-71). 15 Petitioner has not satisfied the “good cause” standard for a Rhines stay. Generally 16 speaking, a pro se petitioner’s lack of legal sophistication or lack of legal knowledge does not, by 17 itself, constitute good cause. Cf. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (pro se 18 petitioner’s lack of legal sophistication is not, by itself, an extraordinary circumstance warranting 19 equitable tolling). In addition, according to the record, it appears that petitioner had sufficient 20 time to exhaust him claims after learning of appellate counsel’s omissions. Petitioner states that 21 he realized that appellate counsel had not presented Claim Nos. 1, 3 and 4 to the California 22 Supreme Court when he received a copy of the petition for review. Petitioner does not specify 23 when he received a copy of the petition for review but the petition for review was filed on August 24 7, 2018 and denied on October 17, 2018, and the instant petition was not filed until October 30, 25 2019. If petitioner received a copy of the petition for review soon after it was filed, he had more 26 than a year to exhaust Claim Nos. 1, 3 and 4 in the state courts. 27 While petitioner is not entitled to a Rhines stay, the Court will GRANT petitioner a stay 1 applicable requirement for a King/Kelly stay is that the petition sought to be stayed has no 2 unexhausted claims. The current petition is a mixed petition. Accordingly, the Court DISMISSES 3 without prejudice Claim Nos. 1, 3 and 4 as unexhausted, which leaves the petition with only the 4 exhausted Claim Nos. 2, 5, 6 and 7; and GRANTS petitioner a stay pursuant to King/Kelly. 5 Petitioner is cautioned that he must exhaust his unexhausted claims (Claim Nos. 1, 3 and 4) in the 6 California Supreme Court. See McNeeley v. Arave, 842 F.2d 230, 231 (9th Cir. 1988) (petitioner 7 must present to highest state court all claims he wishes to raise in a federal habeas petition). 8 With the dismissal of Claim Nos. 1, 3 and 4, the operative petition now only contains the 9 following four cognizable claims: the trial court erred in excluding evidence that Jose Espino’s 10 family had approached Jose Espino’s accomplice in an unrelated matter to “get their stories 11 straight,” in violation of petitioner’s right to present a complete defense; cumulative error; trial 12 counsel was ineffective for failing to request the limiting instruction discussed in Claim No. 3; and 13 trial counsel was ineffective for failing to object to the prosecutorial misconduct identified in 14 Claim No. 4. The Court makes no determination at this point as to whether petitioner can show 15 that Claim Nos. 1, 3 and 4 satisfy the remaining King/Kelly requirements, i.e. that Claim Nos. 1, 3 16 and 4 all share a common core of operative facts with the exhausted claims and that these claims 17 comply with the statute of limitations. 18 III. Returning to Federal Court 19 Petitioner must promptly return to federal court after his state court proceedings have 20 concluded. See Kelly, 315 F.3d at 1071 (reasonable time limits would be thirty days to get to state 21 court, as long as reasonably necessary in state court, and thirty days to get back to federal court 22 after the final rejection of the claims by the state court). Within thirty (30) days from the date the 23 California Supreme Court completes its review of petitioner’s claims, petitioner must so inform 24 the Court if he wishes to seek further relief in this Court. If petitioner wishes to seek further relief 25 in this Court with respect to Claim Nos. 1, 3 and 4, he must amend his petition to add back in the 26 newly exhausted claims, and must show that the amendment of any newly exhausted claims back 27 into the petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common 1 statute of limitations. 3 1. The Court DISMISSES without prejudice Claim Nos. 1, 3 and 4 as unexhausted, 4 and GRANTS petitioner a stay pursuant to King/Kelly. Dkt. No. 15. 5 2. This action is hereby STAYED while petitioner exhausts his unexhausted claims in 6 || the state courts. 7 3. If petitioner is not granted relief in state court, he may return to this Court and ask 8 that the stay be lifted. To do so, petitioner must notify the Court within thirty (30) days from the 9 || date the California Supreme Court completes its review of petitioner’s claims. The notice must 10 || clearly identify in the caption that it is to be filed in Case No. C 19-7165 HSG (PR). Upon 11 petitioner’s filing of the notification that his claims have been exhausted, the stay will be lifted, 12 || the case will be reopened, and the Court will schedule further proceedings. 5 13 4. If petitioner does not take any further action, this case will remain stayed and he 14 || will not receive any ruling from the Court on his petition. 15 5. The Clerk shall ADMINISTRATIVELY CLOSE the file pending the stay of this 16 action. This has no legal effect; it is purely a statistical procedure. 3 17 This order terminates Dkt. No. 15. IT IS SO ORDERED. 19 || Dated: 9/28/2020 20 Aspe 5 Ml | HAYWOOD S. GILLIAM, JR. 21 United States District Judge 22 23 24 25 26 27 28