DEMARIA C. HARGE, No. 1:20-cv-01255-SKO (HC) Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY AND TO DISMISS GROUNDS THREE AND FOUR JIM ROBERSON, Warden, [Doc. 5] Respondent. [TWENTY-ONE DAY DEADLINE] Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant habeas petition on July 13, 2020, in the United States District Court for the Northern District of California. On September 1, 2020, the case was transferred to this Court. (Doc. 9.) Petitioner challenges a Stanislaus County Superior Court conviction for murder, murder of a fetus, vehicular manslaughter while intoxicated, evading a peace officer causing death, and driving under the influence causing injury. Two of the claims presented in the petition are unexhausted. Along with the petition, Petitioner filed a motion for stay and abeyance pending exhaustion of his state remedies. (Doc. 5.) On September 8, 2020, the Court directed the Clerk of Court to serve the motion for stay on Respondent, and granted Respondent an opportunity to respond to the motion. (Doc. 13.) On October 8, 2020, Respondent filed an opposition to the motion. Petitioner did not file a reply. Upon review of the pleadings, the Court finds that Petitioner has failed to show good cause to warrant a stay of the proceedings and will therefore recommend that the motion for stay be DENIED, and the unexhausted grounds be DISMISSED from the petition. A. Exhaustion As the Court stated previously, a state prisoner who wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). Petitioner raises four claims in his petition. He concedes that Grounds Three and Four have not been presented to the state courts and are unexhausted. Because the claims have not been presented to the highest state court, they are subject to dismissal. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). B. Motion for Stay Petitioner has filed a motion to stay the petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while he returns to state court to exhaust the two grounds. (Doc. 14.) As grounds for good cause, Petitioner cites to Pace v. Diguglielmo, 533 U.S. 408, 416 (2005), for the proposition that a petitioner’s reasonable confusion whether a state filing would be timely ordinarily constitutes “good cause” for a stay. Petitioner further claims that: (1) in light of Covid 19, his request should be granted; (2) he was a youthful offender when he was convicted and only has a grade school education; (3) he has been clinically diagnosed with PTSD and has learning disabilities; (4) he cannot read or write and depends on a jailhouse lawyer; and (5) the law library at his institution has not been opened due to the pandemic. (Doc. 5.) A district court has discretion to stay a mixed petition and allow the petitioner to return to state court to exhaust his state remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir.1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.1997). However, the Supreme Court has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light of AEDPA’s objectives, “stay and abeyance [is] available only in limited circumstances” and “is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court,” the unexhausted claims are potentially meritorious, and the petitioner did not intentionally engage in dilatory litigation tactics. Id. at 277-78. First, Petitioner’s citation to Pace is unavailing. Although the Supreme Court stated that reasonable confusion over whether a state filing would be timely would ordinarily constitute good cause, see Pace, 544 U.S. at 416, that is not the case here. Although Petitioner claims he has commenced exhaustion by filing a state habeas petition, Respondent avers that he has not done so, and Petitioner submits no documentation to support his claim. Pace involved a petitioner already pursuing state collateral relief and confused as to whether his filings were timely. Here, Petitioner has not even commenced state collateral review. In addition, Petitioner’s citation to Pace and his implied assertion of confusion are belied by his statements and completely unsupported by any facts. In his motion, he states “his current deadline under the A.E.D.P.A. is September 19, 2020.” (Doc. 5 at 3.) “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “An assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner's failure to exhaust.” Id. Second, Petitioner’s allegations that he has a limited education, learning disabilities, mental health issues, relies on a jailhouse lawyer, and has experienced law library closures due to Covid 19 are conclusory. Petitioner supplies no evidentiary support for these claims and how they caused him to be unable to seek relief in the state courts prior to filing his federal petition. He provides no documentary evidence of his limited education, learning disabilities, or mental health issues. He provides no evidence of law library closures due to Covid 19, or how they hampered him from seeking relief in the state courts. As correctly noted by Respondent, “[a]n assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner’s failure to exhaust.” Blake, 745 F.3d at 982. “[A] bald assertion cannot amount to a showing of good cause. . . .” Id. Third, Petitioner’s claim that he relies on a jailhouse lawyer is unavailing. Petitioners are not entitled to counsel in state habeas proceedings. Petitioner’s situation is no different than most other inmates seeking habeas relief. Fourth, Petitioner has not shown the two claims to be potentially meritorious. In Ground Three, Petitioner complains that the prosecutor committed misconduct by presenting false evidence in the form of witness testimony from Cierra Padilla. Petitioner fails to show that Ms. Padilla’s testimony was false, or that the prosecutor knew that the testimony was false. In Ground Four, Petitioner alleges defense counsel was ineffective in failing to investigate Petitioner’s history of mental health issues and severe learning disability and use that information in defense of second degree murder. This claim is also unsupported by any evidence. Petitioner does not show what investigation counsel conducted or what information counsel had about his case. Thus, Petit
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DEMARIA C. HARGE, No. 1:20-cv-01255-SKO (HC) Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE v. FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY AND TO DISMISS GROUNDS THREE AND FOUR JIM ROBERSON, Warden, [Doc. 5] Respondent. [TWENTY-ONE DAY DEADLINE] Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed the instant habeas petition on July 13, 2020, in the United States District Court for the Northern District of California. On September 1, 2020, the case was transferred to this Court. (Doc. 9.) Petitioner challenges a Stanislaus County Superior Court conviction for murder, murder of a fetus, vehicular manslaughter while intoxicated, evading a peace officer causing death, and driving under the influence causing injury. Two of the claims presented in the petition are unexhausted. Along with the petition, Petitioner filed a motion for stay and abeyance pending exhaustion of his state remedies. (Doc. 5.) On September 8, 2020, the Court directed the Clerk of Court to serve the motion for stay on Respondent, and granted Respondent an opportunity to respond to the motion. (Doc. 13.) On October 8, 2020, Respondent filed an opposition to the motion. Petitioner did not file a reply. Upon review of the pleadings, the Court finds that Petitioner has failed to show good cause to warrant a stay of the proceedings and will therefore recommend that the motion for stay be DENIED, and the unexhausted grounds be DISMISSED from the petition. A. Exhaustion As the Court stated previously, a state prisoner who wishes to collaterally challenge his conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court and gives the state court the initial opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). Petitioner raises four claims in his petition. He concedes that Grounds Three and Four have not been presented to the state courts and are unexhausted. Because the claims have not been presented to the highest state court, they are subject to dismissal. Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001). B. Motion for Stay Petitioner has filed a motion to stay the petition pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while he returns to state court to exhaust the two grounds. (Doc. 14.) As grounds for good cause, Petitioner cites to Pace v. Diguglielmo, 533 U.S. 408, 416 (2005), for the proposition that a petitioner’s reasonable confusion whether a state filing would be timely ordinarily constitutes “good cause” for a stay. Petitioner further claims that: (1) in light of Covid 19, his request should be granted; (2) he was a youthful offender when he was convicted and only has a grade school education; (3) he has been clinically diagnosed with PTSD and has learning disabilities; (4) he cannot read or write and depends on a jailhouse lawyer; and (5) the law library at his institution has not been opened due to the pandemic. (Doc. 5.) A district court has discretion to stay a mixed petition and allow the petitioner to return to state court to exhaust his state remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005); Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-88 (9th Cir.1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.1997). However, the Supreme Court has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines, 544 U.S. at 277. In light of AEDPA’s objectives, “stay and abeyance [is] available only in limited circumstances” and “is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims first in state court,” the unexhausted claims are potentially meritorious, and the petitioner did not intentionally engage in dilatory litigation tactics. Id. at 277-78. First, Petitioner’s citation to Pace is unavailing. Although the Supreme Court stated that reasonable confusion over whether a state filing would be timely would ordinarily constitute good cause, see Pace, 544 U.S. at 416, that is not the case here. Although Petitioner claims he has commenced exhaustion by filing a state habeas petition, Respondent avers that he has not done so, and Petitioner submits no documentation to support his claim. Pace involved a petitioner already pursuing state collateral relief and confused as to whether his filings were timely. Here, Petitioner has not even commenced state collateral review. In addition, Petitioner’s citation to Pace and his implied assertion of confusion are belied by his statements and completely unsupported by any facts. In his motion, he states “his current deadline under the A.E.D.P.A. is September 19, 2020.” (Doc. 5 at 3.) “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “An assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner's failure to exhaust.” Id. Second, Petitioner’s allegations that he has a limited education, learning disabilities, mental health issues, relies on a jailhouse lawyer, and has experienced law library closures due to Covid 19 are conclusory. Petitioner supplies no evidentiary support for these claims and how they caused him to be unable to seek relief in the state courts prior to filing his federal petition. He provides no documentary evidence of his limited education, learning disabilities, or mental health issues. He provides no evidence of law library closures due to Covid 19, or how they hampered him from seeking relief in the state courts. As correctly noted by Respondent, “[a]n assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner’s failure to exhaust.” Blake, 745 F.3d at 982. “[A] bald assertion cannot amount to a showing of good cause. . . .” Id. Third, Petitioner’s claim that he relies on a jailhouse lawyer is unavailing. Petitioners are not entitled to counsel in state habeas proceedings. Petitioner’s situation is no different than most other inmates seeking habeas relief. Fourth, Petitioner has not shown the two claims to be potentially meritorious. In Ground Three, Petitioner complains that the prosecutor committed misconduct by presenting false evidence in the form of witness testimony from Cierra Padilla. Petitioner fails to show that Ms. Padilla’s testimony was false, or that the prosecutor knew that the testimony was false. In Ground Four, Petitioner alleges defense counsel was ineffective in failing to investigate Petitioner’s history of mental health issues and severe learning disability and use that information in defense of second degree murder. This claim is also unsupported by any evidence. Petitioner does not show what investigation counsel conducted or what information counsel had about his case. Thus, Petitioner fails to show that counsel failed to investigate, or that counsel’s strategies constituted ineffective assistance. Fifth, Petitioner fails to show that he did not engage in dilatory tactics. As previously noted, Petitioner has never presented his unexhausted claims to the state courts. He offers no reasonable excuse for delaying 10 months without even attempting to file a state court habeas petition, especially given the fact he filed the instant federal petition raising the unexhausted claims. The Clerk of Court is DIRECTED to assign a District Judge to the case. For the foregoing reasons, the Court hereby RECOMMENDS that Petitioner’s motion for stay be DENIED, and Grounds Three and Four be DISMISSED from the petition. This Findings and Recommendation is submitted to the United States District Court Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one (21) days after being served with a copy, any party may file written objections with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED.
Sheila K. Oberto Dated: November 12, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE