8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 GERALD BRENT HARRIS, Case No. 1:19-cv-01203-LJO-SAB-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RHINES STAY 13 v. ORDER DISCHARGING ORDER TO 14 SCOTT FRAUENHEIM, SHOW CAUSE
15 Respondent. (ECF Nos. 7, 8)
16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 Petitioner challenges his 2014 convictions sustained in the Kern County Superior Court 22 for second-degree murder and discharge of firearm causing death. Petitioner was sentenced to an 23 imprisonment term of forty years to life. (ECF No. 1 at 1).1 On March 28, 2018, the California 24 Court of Appeal, Fifth Appellate District affirmed the convictions, vacated the sentence, and 25 remanded the matter. (Id. at 2). On June 13, 2018, the California Supreme Court denied the 26 petition for review. (Id. at 2, 8). 27 /// 1 On September 3, 2019, Petitioner filed a federal petition for writ of habeas corpus in this 2 Court. Therein, Petitioner acknowledges that the claims that he raises in Ground Five of the 3 petition currently are pending in a collateral challenge in the California Court of Appeal. (ECF 4 No. 1 at 5). On October 4, 2019, the Court ordered Petitioner to show cause why the petition 5 should not be dismissed for failure to exhaust state court remedies. (ECF No. 7). On October 24, 6 2019, Petitioner filed his response. (ECF No. 8). 7 II. 8 DISCUSSION 9 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 11 on comity to the state court and gives the state court the initial opportunity to correct the state’s 12 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 13 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider each claim before 15 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 16 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 17 In his response to the order to show cause, Petitioner acknowledges that he filed a mixed 18 petition containing exhausted and unexhausted claims. (ECF No. 8 at 1). Petitioner raises the 19 following question: “Does the fact that petitioner was back before the Sentencing Court on 20 Remand after the State Supreme Court denied review count toward tolling the AEDPA time 21 constraint’s [sic] before filing a first collateral petition in the state court’s after the remand issue 22 is concluded?” (ECF No. 8 at 2). If “that remand time” is tolled, Petitioner “would have no 23 objection” to dismissing the case without prejudice. (Id.). However, if “that remand time” is not 24 tolled, Petitioner requests the Court to stay the petition and hold it in abeyance pursuant to 25 Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 8 at 2). 26 This Court does not have the complete state court record and thus, the Court cannot rule 27 definitively on the issue of tolling. Accordingly, the Court will proceed to determine whether a 1 is generally (but not always) dispositive of the unexhausted claims,” the undersigned shall 2 submit findings and recommendation on the motion. Mitchell v. Valenzuela, 791 F.3d 1166, 3 1171, 1173–74 (9th Cir. 2015). 4 Under Rhines v. Weber, “stay and abeyance” is available only when: (1) there is “good 5 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 6 the petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277–78. 7 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 8 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 9 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 10 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 11 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).2 Although “good 12 cause” does not require extraordinary circumstances, courts “must interpret whether a petitioner 13 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines 14 that the district court should only stay mixed petitions in ‘limited circumstances’” and AEDPA’s 15 goals “to encourage the finality of sentences and to encourage petitioners to exhaust their claims 16 in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d 1019, 1023–24 (9th 17 Cir. 2008) (citations omitted). 18 Here, Petitioner states that his appellate attorney held onto Petitioner’s records until 19 Petitioner questioned the attorney about the documents during preparation of his collateral 20 challenge.3 Petitioner prepared the state collateral challenge without the benefit of those records 21 “because of the possible time constraint issues.” (ECF No. 8 at 1–2). Given Petitioner’s concerns 22 of “the possible time constraint issues” regarding his state collateral challenge, Petitioner has 23 satisfied Rhines’s good cause requirement. See Pace, 544 U.S. at 416 (“A petitioner’s reasonable 24
25 2 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 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and 26 asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 U.S. at 416 (citations omitted). 27 3 Petitioner’s allegation is supported by an August 13, 2019 letter from his appellate counsel that acknowledged receipt of Petitioner’s letter requesting the original transcripts and indicated that counsel would be returning the 1 confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for 2 him to file in federal court.”). 3 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 4 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 5 (9th Cir. 2017). “In determining whether a claim is ‘plainly meritless,’ principles of comity and 6 federalism demand that the federal court refrain from ruling on the merits of the claim unless ‘it 7 is perfectly clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 8 406 F.3d 614
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8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 GERALD BRENT HARRIS, Case No. 1:19-cv-01203-LJO-SAB-HC
12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT RHINES STAY 13 v. ORDER DISCHARGING ORDER TO 14 SCOTT FRAUENHEIM, SHOW CAUSE
15 Respondent. (ECF Nos. 7, 8)
16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 Petitioner challenges his 2014 convictions sustained in the Kern County Superior Court 22 for second-degree murder and discharge of firearm causing death. Petitioner was sentenced to an 23 imprisonment term of forty years to life. (ECF No. 1 at 1).1 On March 28, 2018, the California 24 Court of Appeal, Fifth Appellate District affirmed the convictions, vacated the sentence, and 25 remanded the matter. (Id. at 2). On June 13, 2018, the California Supreme Court denied the 26 petition for review. (Id. at 2, 8). 27 /// 1 On September 3, 2019, Petitioner filed a federal petition for writ of habeas corpus in this 2 Court. Therein, Petitioner acknowledges that the claims that he raises in Ground Five of the 3 petition currently are pending in a collateral challenge in the California Court of Appeal. (ECF 4 No. 1 at 5). On October 4, 2019, the Court ordered Petitioner to show cause why the petition 5 should not be dismissed for failure to exhaust state court remedies. (ECF No. 7). On October 24, 6 2019, Petitioner filed his response. (ECF No. 8). 7 II. 8 DISCUSSION 9 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 11 on comity to the state court and gives the state court the initial opportunity to correct the state’s 12 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 13 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 14 providing the highest state court with a full and fair opportunity to consider each claim before 15 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 16 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 17 In his response to the order to show cause, Petitioner acknowledges that he filed a mixed 18 petition containing exhausted and unexhausted claims. (ECF No. 8 at 1). Petitioner raises the 19 following question: “Does the fact that petitioner was back before the Sentencing Court on 20 Remand after the State Supreme Court denied review count toward tolling the AEDPA time 21 constraint’s [sic] before filing a first collateral petition in the state court’s after the remand issue 22 is concluded?” (ECF No. 8 at 2). If “that remand time” is tolled, Petitioner “would have no 23 objection” to dismissing the case without prejudice. (Id.). However, if “that remand time” is not 24 tolled, Petitioner requests the Court to stay the petition and hold it in abeyance pursuant to 25 Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 8 at 2). 26 This Court does not have the complete state court record and thus, the Court cannot rule 27 definitively on the issue of tolling. Accordingly, the Court will proceed to determine whether a 1 is generally (but not always) dispositive of the unexhausted claims,” the undersigned shall 2 submit findings and recommendation on the motion. Mitchell v. Valenzuela, 791 F.3d 1166, 3 1171, 1173–74 (9th Cir. 2015). 4 Under Rhines v. Weber, “stay and abeyance” is available only when: (1) there is “good 5 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 6 the petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277–78. 7 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 8 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 9 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 10 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 11 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).2 Although “good 12 cause” does not require extraordinary circumstances, courts “must interpret whether a petitioner 13 has ‘good cause’ for a failure to exhaust in light of the Supreme Court’s instruction in Rhines 14 that the district court should only stay mixed petitions in ‘limited circumstances’” and AEDPA’s 15 goals “to encourage the finality of sentences and to encourage petitioners to exhaust their claims 16 in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d 1019, 1023–24 (9th 17 Cir. 2008) (citations omitted). 18 Here, Petitioner states that his appellate attorney held onto Petitioner’s records until 19 Petitioner questioned the attorney about the documents during preparation of his collateral 20 challenge.3 Petitioner prepared the state collateral challenge without the benefit of those records 21 “because of the possible time constraint issues.” (ECF No. 8 at 1–2). Given Petitioner’s concerns 22 of “the possible time constraint issues” regarding his state collateral challenge, Petitioner has 23 satisfied Rhines’s good cause requirement. See Pace, 544 U.S. at 416 (“A petitioner’s reasonable 24
25 2 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 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and 26 asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 U.S. at 416 (citations omitted). 27 3 Petitioner’s allegation is supported by an August 13, 2019 letter from his appellate counsel that acknowledged receipt of Petitioner’s letter requesting the original transcripts and indicated that counsel would be returning the 1 confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’ for 2 him to file in federal court.”). 3 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 4 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 5 (9th Cir. 2017). “In determining whether a claim is ‘plainly meritless,’ principles of comity and 6 federalism demand that the federal court refrain from ruling on the merits of the claim unless ‘it 7 is perfectly clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 8 406 F.3d 614, 624 (9th Cir. 2005)). 9 The claims Petitioner raises in Ground Five of the petition are unexhausted. In Ground 10 Five, Petitioner asserts: (1) ineffective assistance of trial and appellate counsel on various 11 grounds; (2) denial of his right to a fair trial; and (3) abuse of discretion of the sentencing court 12 in not striking a firearm enhancement pursuant to SB620 on remand. (ECF No. 1 at 7). At least 13 one of Petitioner’s unexhausted claims appears on its face to not be “plainly meritless.” 14 Petitioner alleges that at the SB620 hearing, in which the trial court declined to strike the firearm 15 enhancement on remand, Petitioner asked trial counsel about filing an appeal. Trial counsel 16 stated that she would contact Petitioner’s appellate counsel, but she never did and failed to file a 17 notice of appeal. (ECF No. 1 at 14–15). See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) 18 (“We have long held that a lawyer who disregards specific instructions from the defendant to file 19 a notice of appeal acts in a manner that is professionally unreasonable.”). 20 As set forth above, Petitioner has established “good cause” for his failure to exhaust, and 21 at least one of his unexhausted claims appears on its face to not be “plainly meritless.” Finally, 22 there is no indication in the record before the Court that Petitioner engaged in “intentionally 23 dilatory litigation tactics.” Rhines, 544 U.S. at 278. Accordingly, the undersigned recommends 24 granting Petitioner’s motion to stay this case pending resolution of the unexhausted claims in 25 state court. 26 /// 27 /// 1 Ii. 2 RECOMMENDATION & ORDER 3 Based on the foregoing, the undersigned HEREBY RECOMMENDS that Petitioner’s 4 | motion for a stay under Rhines (ECF No. 8) be GRANTED. 5 Further, IT IS HEREBY ORDERED that the order to show cause (ECF No. 7) is 6 | DISCHARGED. 7 This Findings and Recommendation is submitted to the United States District Court 8 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 9 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 10 | Within FOURTEEN (14) days after service of the Findings and Recommendation, Petitioner 11 | may file written objections with the Court and serve a copy on all parties. Such a document 12 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The 13 | assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 14 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 15 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. OF. ee 19 | Dated: _December 11, 2019 __ Oe UNITED STATES MAGISTRATE JUDGE
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