1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE GRIFFIN, No. 1:17-cv-01137-DAD-HBK 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 JOEL D. MARTINEZ, Warden, (Doc. No. 37) 15 Respondent.
16 17 Petitioner Robert Lee Griffin is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 23, 2017, petitioner’s application for a federal writ for habeas corpus was filed 21 with this court. (Doc. No. 1.) This original petition contained four1 timely and exhausted claims 22 which alleged errors by the trial court. (Id.) On October 12, 2017, petitioner moved to stay and 23 hold this federal habeas action in abeyance so he could seek to exhaust additional, newly- 24 discovered claims in state court. (Doc. No. 9.) On March 29, 2018 findings and
25 1 At different times throughout the pendency of this action, the court has described the number of claims asserted in the original as either three or four. Because the manner in which petitioner 26 listed his claims varied within the petition itself, there are more than four claims if each alleged 27 evidentiary error is construed as a separate claim. The court’s ruling is meant to cover all those claims asserted by petitioner in his original petition, and the reference to a particular number is 28 not intended to suggest any limitation on the claims included in the original petition. 1 recommendations were issued by the assigned magistrate judge recommending that a stay and 2 abeyance be granted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) rather than under Rhines 3 v. Weber, 544 U.S. 269 (2005) because the federal petition filed with this court contained only 4 exhausted claims. (Doc. No. 17 at 3-5.) On June 25, 2018, a stay was granted pursuant to Kelly 5 v. Small, pending petitioner’s exhaustion of his unexhausted claims in state court. (Doc. No. 19.) 6 Petitioner was specifically advised at that time that the Kelly stay would allow him to amend his 7 presently-unexhausted claims into his pending federal petition after exhaustion in state court only 8 if the he timely moved to amend his federal petition within the statute of limitations set by 9 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. No. 17 at 3–4) 10 (emphasis added). Petitioner was also ordered to file status reports with the court every ninety 11 days, describing the status of his exhaustion petition in the state court system. (Doc. No. 19 at 2.) 12 Finally, petitioner was ordered to file an amended federal petition containing all of his claims for 13 habeas relief, including any newly-exhausted claims, along with a motion to lift the stay within 14 thirty days of the California Supreme Court’s issuance of a final order on the exhaustion petition 15 he intended to file in state court. (Id.) 16 After status report filing deadlines were missed by petitioner in 2019, an order directing 17 him to file the required status reports was entered on October 30, 2019. (Doc. No. 23.) In 18 response, in a letter dated November 9, 2019 and received by the court November 15, 2019, 19 petitioner advised the court that he had exhausted his unexhausted claims in state court “as of 20 June 2019” and that he was “putting together” his amended federal petition. (Doc. No. 24.) 21 When nothing was received by the court from petitioner, an order requiring petitioner to show 22 cause why this federal habeas action should not be dismissed due to his failure to prosecute was 23 issued on February 25, 2020. (Doc. No. 26.) Thereafter, on March 30, 2020, petitioner finally 24 filed an amended federal petition containing the original four exhausted claims in which he 25 alleged trial court error and three later-exhausted claims in which he alleged he had received 26 ineffective assistance of counsel. (Doc. No. 30.) On April 17, 2020, the assigned magistrate 27 judge issued another order requiring petitioner to show cause as to why his three ineffective 28 assistance of counsel claims should not be dismissed as untimely and directing petitioner to 1 demonstrate the timeliness of those claims. (Doc. No. 31.) Petitioner submitted three responses 2 to the order to show cause providing reasons for his delay. (Doc. Nos. 32, 34, 36.) Petitioner 3 requested that in the event his ineffective assistance of counsel claims were found by the court to 4 be untimely, he wished to proceed with his petition bringing only the four timely claims of trial 5 court error. (Doc. Nos. 34 at 1, 36 at 2.) 6 The assigned magistrate judge concluded that none of the explanation offered by 7 petitioner rendered the subsequently exhausted and newly alleged ineffective assistance of 8 counsel claims timely under AEDPA.2 (Doc. No. 37.) Accordingly, on August 3, 2020, findings 9 and recommendations were issued recommending that petitioner’s three ineffective assistance of 10 counsel claims be dismissed as untimely and recommending this action proceed only on 11 petitioner’s four timely claims of trial court error which were asserted in his original petition. 12 (Doc. No. 37). Those findings and recommendations were served on plaintiff by mail and 13 contained notice that any objections thereto were to be filed within thirty (30) days of service of 14 the findings and recommendations. (Id. at 5–6.) To date, no objections to the pending findings 15 and recommendations have been filed, and the time in which to do so has now passed. 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 17 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 2 The findings and recommendations contain references suggesting that petitioner’s new claims 27 be dismissed as “unexhausted” (Doc. No. 37 at 1, 3, 5) but the undersigned understands that the magistrate judge’s intended description of the newly asserted ineffective assistance of counsel 28 claims was instead “untimely.” 1 including petitioner’s objections, the court finds the findings and recommendations to be 2 supported by the record and proper analysis.3 3 Having determined that petitioner is not entitled to habeas relief, the court now turns to 4 whether a certificate of appealability should issue. The federal rules governing habeas cases 5 brought by state prisoners require a district court to either issue or deny a certificate of 6 appealability when entering an order denying a habeas petition. See Rules Governing § 2254 7 Case, Rule 11(a). “[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement 8 to appeal a district court’s denial of his petition,” and an appeal is only allowed in certain 9 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see also 28 U.S.C. 10 § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a certificate of 11 appealability). A judge shall grant a certificate of appealability “only if the applicant has made a 12 substantial showing of the denial of a constitutional right” 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE GRIFFIN, No. 1:17-cv-01137-DAD-HBK 12 Petitioner, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 JOEL D. MARTINEZ, Warden, (Doc. No. 37) 15 Respondent.
16 17 Petitioner Robert Lee Griffin is a state prisoner proceeding pro se and in forma pauperis 18 with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred 19 to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 23, 2017, petitioner’s application for a federal writ for habeas corpus was filed 21 with this court. (Doc. No. 1.) This original petition contained four1 timely and exhausted claims 22 which alleged errors by the trial court. (Id.) On October 12, 2017, petitioner moved to stay and 23 hold this federal habeas action in abeyance so he could seek to exhaust additional, newly- 24 discovered claims in state court. (Doc. No. 9.) On March 29, 2018 findings and
25 1 At different times throughout the pendency of this action, the court has described the number of claims asserted in the original as either three or four. Because the manner in which petitioner 26 listed his claims varied within the petition itself, there are more than four claims if each alleged 27 evidentiary error is construed as a separate claim. The court’s ruling is meant to cover all those claims asserted by petitioner in his original petition, and the reference to a particular number is 28 not intended to suggest any limitation on the claims included in the original petition. 1 recommendations were issued by the assigned magistrate judge recommending that a stay and 2 abeyance be granted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) rather than under Rhines 3 v. Weber, 544 U.S. 269 (2005) because the federal petition filed with this court contained only 4 exhausted claims. (Doc. No. 17 at 3-5.) On June 25, 2018, a stay was granted pursuant to Kelly 5 v. Small, pending petitioner’s exhaustion of his unexhausted claims in state court. (Doc. No. 19.) 6 Petitioner was specifically advised at that time that the Kelly stay would allow him to amend his 7 presently-unexhausted claims into his pending federal petition after exhaustion in state court only 8 if the he timely moved to amend his federal petition within the statute of limitations set by 9 the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (Doc. No. 17 at 3–4) 10 (emphasis added). Petitioner was also ordered to file status reports with the court every ninety 11 days, describing the status of his exhaustion petition in the state court system. (Doc. No. 19 at 2.) 12 Finally, petitioner was ordered to file an amended federal petition containing all of his claims for 13 habeas relief, including any newly-exhausted claims, along with a motion to lift the stay within 14 thirty days of the California Supreme Court’s issuance of a final order on the exhaustion petition 15 he intended to file in state court. (Id.) 16 After status report filing deadlines were missed by petitioner in 2019, an order directing 17 him to file the required status reports was entered on October 30, 2019. (Doc. No. 23.) In 18 response, in a letter dated November 9, 2019 and received by the court November 15, 2019, 19 petitioner advised the court that he had exhausted his unexhausted claims in state court “as of 20 June 2019” and that he was “putting together” his amended federal petition. (Doc. No. 24.) 21 When nothing was received by the court from petitioner, an order requiring petitioner to show 22 cause why this federal habeas action should not be dismissed due to his failure to prosecute was 23 issued on February 25, 2020. (Doc. No. 26.) Thereafter, on March 30, 2020, petitioner finally 24 filed an amended federal petition containing the original four exhausted claims in which he 25 alleged trial court error and three later-exhausted claims in which he alleged he had received 26 ineffective assistance of counsel. (Doc. No. 30.) On April 17, 2020, the assigned magistrate 27 judge issued another order requiring petitioner to show cause as to why his three ineffective 28 assistance of counsel claims should not be dismissed as untimely and directing petitioner to 1 demonstrate the timeliness of those claims. (Doc. No. 31.) Petitioner submitted three responses 2 to the order to show cause providing reasons for his delay. (Doc. Nos. 32, 34, 36.) Petitioner 3 requested that in the event his ineffective assistance of counsel claims were found by the court to 4 be untimely, he wished to proceed with his petition bringing only the four timely claims of trial 5 court error. (Doc. Nos. 34 at 1, 36 at 2.) 6 The assigned magistrate judge concluded that none of the explanation offered by 7 petitioner rendered the subsequently exhausted and newly alleged ineffective assistance of 8 counsel claims timely under AEDPA.2 (Doc. No. 37.) Accordingly, on August 3, 2020, findings 9 and recommendations were issued recommending that petitioner’s three ineffective assistance of 10 counsel claims be dismissed as untimely and recommending this action proceed only on 11 petitioner’s four timely claims of trial court error which were asserted in his original petition. 12 (Doc. No. 37). Those findings and recommendations were served on plaintiff by mail and 13 contained notice that any objections thereto were to be filed within thirty (30) days of service of 14 the findings and recommendations. (Id. at 5–6.) To date, no objections to the pending findings 15 and recommendations have been filed, and the time in which to do so has now passed. 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 17 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 2 The findings and recommendations contain references suggesting that petitioner’s new claims 27 be dismissed as “unexhausted” (Doc. No. 37 at 1, 3, 5) but the undersigned understands that the magistrate judge’s intended description of the newly asserted ineffective assistance of counsel 28 claims was instead “untimely.” 1 including petitioner’s objections, the court finds the findings and recommendations to be 2 supported by the record and proper analysis.3 3 Having determined that petitioner is not entitled to habeas relief, the court now turns to 4 whether a certificate of appealability should issue. The federal rules governing habeas cases 5 brought by state prisoners require a district court to either issue or deny a certificate of 6 appealability when entering an order denying a habeas petition. See Rules Governing § 2254 7 Case, Rule 11(a). “[A] state prisoner seeking a writ of habeas corpus has no absolute entitlement 8 to appeal a district court’s denial of his petition,” and an appeal is only allowed in certain 9 circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); see also 28 U.S.C. 10 § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a certificate of 11 appealability). A judge shall grant a certificate of appealability “only if the applicant has made a 12 substantial showing of the denial of a constitutional right” 28 U.S.C. § 2253(c)(2), and the 13 certificate must indicate which issues satisfy this standard, 28 U.S.C. § 2253(c)(3). Here, 14 petitioner has not made such a showing because he has not been able to demonstrate that any 15
16 3 The March 29, 2018 findings and recommendations recommending the granting of a stay under Kelly touched on the distinction between, and the requirements for, stays issued under Kelly and 17 Rhines. (Doc. No. 17 at 3-6.) In retrospect, petitioner may have conceivably benefited from a more detailed or direct description of the pros and cons between the two procedures and the 18 requirements for pursuing each. See Thompson v. Baughman, No. 2:17-cv-0996 KJM AC P, 19 2017 WL 4699832, at *2 (E.D. Cal. Oct. 19, 2017) (“Overall, a Rhines stay is much harder to get but preserves the federal filing date of the previously unexhausted claims for purposes of the 20 statute of limitations. A Kelly stay is easier to get, but does not provide any protection against newly exhausted claims becoming time-barred during the exhaustion process.”); Ramirez v. 21 People of California, No. 2:14-cv-1016 WBS DAD P, 2014 WL 6469123, at *3, n.4 (E.D. Cal. Nov. 17, 2014) (E.D. Cal. 2014) (“A petitioner who proceeds under Rhines is better able to avoid 22 a statute of limitations problem. However, the requirements for granting a stay under Rhines are 23 more stringent than in Kelly.”) Perhaps if he had better understood the byzantine nature of current federal habeas law as it has now been constructed by Congress and the courts, petitioner 24 might have resisted the granting of a Kelly stay, filed an amended mixed petition containing both his exhausted and unexhausted claims and attempted to show that he was entitled to the Rhines 25 stay he originally requested so that his ineffective assistance of counsel claims would not become time-barred while he attempted to exhaust them in state court. On the other hand, perhaps not. 26 The court notes that petitioner apparently exhausted his ineffective assistance claims in June of 27 2019, yet did not file his amended federal petition asserting those claims before this court until March 30, 2020. That post-exhaustion delay may well have proved fatal to petitioner’s 28 ineffective assistance of counsel claims in any event. 1 | entitlements of statutory or equitable tolling permit the filing of his claims on March 30, 2020. 2 | As such, a certificate of appealability will not be issued. 3 Accordingly: 4 1. The findings and recommendations issued on August 3, 2020 (Doc. No. 37) are 5 adopted in full; 6 2. Petitioner’s three newly presented claims based on the alleged ineffective 7 assistance of counsel are dismissed because they were not timely filed within the 8 statute of limitations afforded by AEDPA as required for amendment after the 9 granting of a Kelly stay; 10 3. Petitioner may proceed in this habeas action on his other claims as originally 11 alleged; 12 4. The court declines to issue a certificate of appealability; and 13 5. This action is referred back to the assigned magistrate judge for further 14 proceedings consistent with this order. 15 | IT IS SO ORDERED. si □ '6 Dated: _ April 14, 2021 Y al, Al 7 a 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28