(HC) Donovan v. Diaz

• Court: District Court, E.D. California
• Decided: June 15, 2020
• Docket: 1:20-cv-00694
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7

8 JEREMIAH J. DONOVAN, Case No. 1:20-cv-00694-EPG-HC

9 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT PETITIONER’S MOTION TO 10 v. STAY AND TO GRANT LEAVE TO AMEND PETITION FOR WRIT OF 11 RALPH DIAZ, HABEAS CORPUS

12 Respondent. ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE AND SEND 13 PETITIONER BLANK § 2254 HABEAS FORMS 14 (ECF No. 2) 15 16 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 17 U.S.C. § 2254. Petitioner has moved for a stay pursuant to Rhines v. Weber, 544 U.S. 269 18 (2005), while he exhausts state court remedies. For the reasons stated herein, the undersigned 19 recommends granting the motion to stay, granting Petitioner leave to file a first amended petition 20 setting forth both his exhausted and unexhausted claims for relief, and staying the mixed first 21 amended petition. 22 I. 23 BACKGROUND 24 On May 14, 2020,1 Petitioner constructively filed a petition for writ of habeas corpus, 25 which challenges his 2014 Tuolumne County Superior Court conviction for assault with a deadly 26 1 Pursuant to the prison mailbox rule, a pro se prisoner’s habeas petition is filed “at the time . . . [it is] delivered . . . 27 to the prison authorities for forwarding to the court clerk.” Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th Cir. 2014) (alteration in original) (internal quotation marks omitted) (quoting Houston v. Lack, 487 U.S. 266, 276 1 weapon. (ECF No. 1 at 1).2 In the petition, Petitioner raises the following grounds for relief: (1) 2 ineffective assistance of trial counsel for failing to request jury instructions regarding the 3 prosecution’s late discovery; and (2) insufficiency of the evidence to prove the great bodily 4 injury enhancement. (ECF No. 1 at 5, 7). 5 Petitioner also moves to stay the instant proceeding pursuant to Rhines v. Weber, 544 6 U.S. 269 (2005). (ECF No. 2). Given “that a motion to stay and abey section 2254 proceedings is 7 generally (but not always) dispositive of the unexhausted claims,” the undersigned shall submit 8 findings and recommendation rather than rule on the motion. Mitchell v. Valenzuela, 791 F.3d 9 1166, 1171, 1173–74 (9th Cir. 2015). 10 II. 11 DISCUSSION 12 A. Stay and Abeyance 13 A petitioner in state custody proceeding with a petition for writ of habeas corpus must 14 exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion 15 requirement by providing the highest state court with a full and fair opportunity to consider each 16 claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 17 Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). If 18 Petitioner has not sought relief in the California Supreme Court for the claims that he raises in 19 the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 20 § 2254(b)(1). 21 Petitioner requests that the Court stay the instant proceeding pursuant to Rhines v. 22 Weber, 544 U.S. 269 (2005), while Petitioner exhausts his remedies in state court. (ECF No. 2 at 23 1). Under Rhines, “stay and abeyance [is] available only in limited circumstances,” and only 24 when: (1) there is “good cause” for the failure to exhaust; (2) the “unexhausted claims are 25 potentially meritorious”; and (3) “there is no indication that the petitioner engaged in 26 intentionally dilatory litigation tactics.” 544 U.S. at 277–78. Additionally, in the Ninth Circuit 27 there is an alternative stay procedure set forth in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), 1 overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). Under 2 Kelly, a three-step procedure is used: (1) the petitioner amends his petition to delete any 3 unexhausted claims; (2) the court in its discretion stays the amended, fully exhausted petition, 4 and holds it in abeyance while the petitioner has the opportunity to proceed to state court to 5 exhaust the deleted claims; and (3) once the claims have been exhausted in state court, the 6 petitioner may return to federal court and amend his federal petition to include the newly- 7 exhausted claims. 315 F.3d at 1070–71. 8 The Ninth Circuit has “noted the important distinctions between the Rhines and Kelly 9 procedures.” King v. Ryan, 564 F.3d 1133, 1139 (9th Cir. 2009). “Rhines allows a district court 10 to stay a mixed petition, and does not require that unexhausted claims be dismissed while the 11 petitioner attempts to exhaust them in state court. In contrast, the three-step procedure outlined in 12 Kelly allows the stay of fully exhausted petitions, requiring that any unexhausted claims be 13 dismissed.” Id. 1139–40 (citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)). “Kelly is not 14 only a more cumbersome procedure for petitioners, but also a riskier one. A petitioner seeking to 15 use the Kelly procedure will be able to amend his unexhausted claims back into his federal 16 petition once he has exhausted them only if those claims are determined to be timely.” King, 564 17 F.3d at 1140–41. 18 B. Good Cause 19 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 20 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 21 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 22 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 23 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).3 The Ninth Circuit 24 has “held that good cause under Rhines does not require a showing of ‘extraordinary 25 circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the

26 3 In Pace, the Supreme Court noted that a solution to the “predicament” of “a ‘petitioner trying in good faith to exhaust state remedies . . . litigat[ing] in state court for years only to find out at the end that he was never “properly 27 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 1 impression’ that his claim was exhausted.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) 2 (quoting Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005); and Wooten v. Kirkland, 540 3 F.3d 1019, 1024 (9th Cir. 2008)). “While a bald assertion cannot amount to a showing of good 4 cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, 5 will.” Blake, 745 F.3d at 982. 6 Petitioner states that the Court would not abuse its discretion in granting a stay based 7 upon the good cause demonstrated in his attached declaration. (ECF No. 2 at 2). In his 8 declaration, Petitioner sets forth the convoluted procedural history of his post-conviction state 9 court proceedings, which involved lost filings and timeliness issues. Petitioner contends that he 10 is entitled to statutory and equitable tolling of the limitations period. (ECF No. 2 at 11). 11 Although not explicitly stated, it appears that the gravamen of Petitioner’s declaration is concern 12 and confusion regarding the timeliness of his various state collateral challenges. See Bernhardt v. 13 Los Angeles County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se 14 pleadings and motions liberally). Accordingly, Petitioner has satisfied Rhines’s good cause 15 requirement. See Pace, 544 U.S. at 416 (“A petitioner’s reasonable confusion about whether a 16 state filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal 17 court.”). 18 C. Potentially Meritorious Unexhausted Claims 19 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 20 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 21 (9th Cir. 2017). “In determining whether a claim is ‘plainly meritless,’ principles of comity and 22 federalism demand that the federal court refrain from ruling on the merits of the claim unless ‘it 23 is perfectly clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 24 406 F.3d 614, 624 (9th Cir. 2005)). 25 Petitioner lists numerous unexhausted claims in his motion to stay that are not included in 26 his petition. Petitioner’s unexhausted claims include: (1) ineffective assistance of appellate 27 counsel; (2) ineffective assistance of trial counsel for failure to investigate and object to 911 tape 1 of trial counsel for failure to investigate and test evidence collected by police; (5) due process 2 violation based on denial of Petitioner’s first motion for DNA testing; and (6) ineffective 3 assistance of counsel and denial of due process by the prosecution suppressing exculpatory DNA 4 evidence collected by police. (ECF No. 2 at 11–13). 5 It is not perfectly clear that the Petitioner has no hope of prevailing on his unexhausted 6 claims, and at least one of Petitioner’s unexhausted claims appears on its face to not be “plainly 7 meritless.” See Strickland v. Washington, 466 U.S. 668, 691 (1984) (“[C]ounsel has a duty to 8 make reasonable investigations or to make a reasonable decision that makes particular 9 investigations unnecessary.”). 10 D. Conclusion 11 Petitioner has established “good cause” for his failure to exhaust, and at least one of his 12 unexhausted claims appears on its face to not be “plainly meritless.” Finally, there is no 13 indication in the record before the Court that Petitioner engaged in “intentionally dilatory 14 litigation tactics.” Rhines, 544 U.S. at 278. Accordingly, the undersigned recommends granting 15 Petitioner’s motion to stay this case pending resolution of the unexhausted claims in state court. 16 The Court notes that the petition before this Court contains only Petitioner’s exhausted 17 claims. (ECF No. 1). Petitioner states that “after the California Supreme Court renders a 18 decision, if it becomes necessary, [he] intend[s] to file a first amended petition” with his newly 19 exhausted claims. (ECF No. 2 at 13). However, “Rhines allows a district court to stay a mixed 20 petition, and does not require that unexhausted claims be dismissed while the petitioner attempts 21 to exhaust them in state court.” King, 564 F.3d at 1139–40. Accordingly, the undersigned 22 recommends granting Petitioner leave to file a first amended petition with all his claims—both 23 exhausted and unexhausted—and staying the mixed first amended petition while Petitioner 24 attempts to exhaust his state court remedies. 25 III. 26 RECOMMENDATION & ORDER 27 Based on the foregoing, the undersigned HEREBY RECOMMENDS that: wOAOe UV TPA SMU OPI ee Ye VY

1 2. Petitioner be GRANTED leave to file a first amended petition to set forth both his 2 exhausted and unexhausted claims for relief; 3 3. The mixed first amended petition be STAYED pending resolution of the unexhausted 4 claims in state court; and 5 4. If Petitioner fails to file a first amended petition, the Court proceed with the three-step 6 Kelly procedure. 7 Further, the Court DIRECTS the Clerk of Court to randomly ASSIGN a District Court 8 | Judge to the present matter and to send Petitioner blank § 2254 habeas forms. 9 This Findings and Recommendation is submitted to the United States District Court 10 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 11 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 12 | Within FOURTEEN (14) days after service of the Findings and Recommendation, Petitioner 13 | may file written objections with the Court and serve a copy on all parties. Such a document 14 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The 15 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 16 | 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 17 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 18 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 21| Dated: _ June 15, 2020 [spe ey 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28