1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ARMANDO E. HERRERA, Case No. 1:19-cv-01150-NONE-JDP 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION FOR EXTENSION OF TIME 13 v. ECF No. 15 14 ROBERT NOUSHMEN, ORDER TO SHOW CAUSE WHY MOTION 15 Respondent. TO STAY PETITION SHOULD NOT BE DENIED 16 OBJECTIONS DUE IN 60 DAYS 17 ECF No. 16 18 19 Petitioner Armando E. Herrera, a state prisoner without counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2254. ECF No. 1. Respondent moved to dismiss the petition for 21 petitioner’s failure to exhaust all his claims before the state courts. ECF No. 11. Before us now 22 are petitioner’s motion for an extension of time to respond to the motion to dismiss, ECF No. 15, 23 and his motion to stay and hold his petition in abeyance so that he may exhaust his claims, ECF 24 No. 16. For good cause shown, we will grant petitioner’s motion for an extension of time to 25 respond to the motion to dismiss. ECF No. 15. 26 With respect to petitioner’s motion to stay, respondent argues that petitioner has failed to 27 show the “good cause” necessary for a stay and abeyance of his petition under Rhines. ECF No. 28 17. We agree. Because petitioner has failed to show good cause for his failure to exhaust some 1 of his claims, we will provide him with notice of his options for how this case may proceed and 2 order him to show cause why his motion to stay should not be denied. See Tillema v. Long, 253 3 F.3d 494, 503 (9th Cir. 2001) (explaining that “outright dismissal [of a partially exhausted habeas 4 petition] without leave to amend of the petitioner’s federal habeas petition [is] improper,” and 5 “that district courts must provide habeas litigants with the opportunity to amend their mixed 6 petitions by striking their unexhausted claims”). 7 I. Discussion 8 a. Rhines Stay 9 Petitioner seeks a stay and abeyance under the Rhines procedure. See Rhines v. Weber, 10 544 U.S. 269, 277 (2005). Under Rhines, a stay and abeyance is available only where: (1) there is 11 “good cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; 12 and (3) the petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277- 13 78. “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by 14 allowing a petitioner to delay the resolution of the federal proceedings It also undermines 15 AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive 16 to exhaust all his claims in state court prior to filing his federal petition.” Id. Therefore, a “stay 17 and abeyance should be available only in limited circumstances. Id. 18 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 19 exhaust.” Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Although good cause under Rhines 20 does not require a showing of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654, 661- 21 62 (9th Cir. 2005), a petitioner must do more than simply assert that he was “under the 22 impression” that his claim was exhausted, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 23 2008). “[U]nspecific, unsupported excuses for failing to exhaust—such as unjustified 24 ignorance—[do] not satisfy the good cause requirement.” Blake, 745 F.3d at 981. Rather, “good 25 cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient 26 evidence, to justify” his failure to exhaust his claims. Id. at 982. 27 28 1 Here, petitioner has exhausted some of his claims at the state level, while leaving others 2 unexhausted.1 See ECF No. 11 at 2-3. Petitioner states that he has been unable to exhaust all his 3 claims because his appellate counsel failed to follow-up after the denial of his direct appeal and 4 “in all respects, abandoned” him. ECF No. 16 at 2. Although “[a] petitioner who is without 5 counsel in state post-conviction proceedings cannot be expected to understand the technical 6 requirements of exhaustion and should not be denied the opportunity to exhaust a potentially 7 meritorious claim simply because he lacked counsel,” Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 8 2017), petitioner had counsel at his direct appeal and he has failed to provide any evidence that 9 his counsel failed to contact him after his appeal was rejected. On the contrary, petitioner has 10 presented a letter from his appellate counsel which reveals that his counsel promptly notified him 11 that his conviction was affirmed on appeal, provided him with a copy of his entire appeal record, 12 and provided him with instructions and the filing deadline for seeking review before the 13 California Supreme Court. ECF No. 7 at 3. 14 Moreover, petitioner has failed to seek any state-level habeas relief and his ostensible lack 15 of counsel since the denial of his direct appeal does not constitute good cause for his failure to do 16 so. The factual predicates of petitioner’s unexhausted claims were apparent to him at the time of 17 his trial in 2014. District courts in this Circuit have found that “Dixon does not apply and good 18 cause is lacking when a [pro se] petitioner has not filed any relevant state habeas petitions, 19 particularly when there is evidence that the petitioner has not been expeditious in seeking 20 relief.” See Stacy v. Gastelo, No. CV 17-5482-RGK (JPR), 2018 U.S. Dist. LEXIS 61656, at *2 21 (C.D. Cal. Feb. 20, 2018) (citing Dixon, 847 F.3d at 721) (finding no good cause for a Rhines stay 22 where the petitioner did not file any habeas petition in state court and his filings did not supply an 23 explanation for not diligently pursuing his state remedies); Sangurima v. Montgomery, No. 2:17- 24 cv-05022-PSG-KES, 2017 U.S. Dist. LEXIS 217018, at *7-8 (C.D. Cal. Dec. 12, 2017) (finding 25 no good cause for a Rhines stay where petitioner had not filed any state habeas petition and 26 moved for a stay only in response to a federal order to show cause). 27 1 Petitioner has failed to exhaust his claims of ineffective assistance of trial counsel and a trial 28 court violation of Apprendi. See Apprendi v. New Jersey, 530 U.S. 466 (2000). 1 Petitioner also states that he is a “layman to the law” and is “seeking the assistance of 2 individuals incarcerated with him.” ECF No. 16 at 2. However, mere ignorance of the law is 3 insufficient to demonstrate good cause because such a determination “would render stay-and- 4 abeyance orders routine” and would be contrary to Rhines’ instruction that district courts should 5 only stay mixed petitions in “limited circumstances.” See Wooten v. Kirkland, 540 F.3d 1019, 6 1024 (9th Cir. 2008); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 7 1986) (noting that ignorance of the law does not constitute an excuse from due 8 diligence); Alcaraz v. Giurbino, No. CIV S-05-1597, 2009 U.S. Dist. LEXIS 114017, at *2 (E.D. 9 Cal. Dec. 8, 2009) (finding that ignorance of the law does not establish good cause for failure to 10 exhaust).
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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 ARMANDO E. HERRERA, Case No. 1:19-cv-01150-NONE-JDP 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION FOR EXTENSION OF TIME 13 v. ECF No. 15 14 ROBERT NOUSHMEN, ORDER TO SHOW CAUSE WHY MOTION 15 Respondent. TO STAY PETITION SHOULD NOT BE DENIED 16 OBJECTIONS DUE IN 60 DAYS 17 ECF No. 16 18 19 Petitioner Armando E. Herrera, a state prisoner without counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2254. ECF No. 1. Respondent moved to dismiss the petition for 21 petitioner’s failure to exhaust all his claims before the state courts. ECF No. 11. Before us now 22 are petitioner’s motion for an extension of time to respond to the motion to dismiss, ECF No. 15, 23 and his motion to stay and hold his petition in abeyance so that he may exhaust his claims, ECF 24 No. 16. For good cause shown, we will grant petitioner’s motion for an extension of time to 25 respond to the motion to dismiss. ECF No. 15. 26 With respect to petitioner’s motion to stay, respondent argues that petitioner has failed to 27 show the “good cause” necessary for a stay and abeyance of his petition under Rhines. ECF No. 28 17. We agree. Because petitioner has failed to show good cause for his failure to exhaust some 1 of his claims, we will provide him with notice of his options for how this case may proceed and 2 order him to show cause why his motion to stay should not be denied. See Tillema v. Long, 253 3 F.3d 494, 503 (9th Cir. 2001) (explaining that “outright dismissal [of a partially exhausted habeas 4 petition] without leave to amend of the petitioner’s federal habeas petition [is] improper,” and 5 “that district courts must provide habeas litigants with the opportunity to amend their mixed 6 petitions by striking their unexhausted claims”). 7 I. Discussion 8 a. Rhines Stay 9 Petitioner seeks a stay and abeyance under the Rhines procedure. See Rhines v. Weber, 10 544 U.S. 269, 277 (2005). Under Rhines, a stay and abeyance is available only where: (1) there is 11 “good cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; 12 and (3) the petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277- 13 78. “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging finality by 14 allowing a petitioner to delay the resolution of the federal proceedings It also undermines 15 AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive 16 to exhaust all his claims in state court prior to filing his federal petition.” Id. Therefore, a “stay 17 and abeyance should be available only in limited circumstances. Id. 18 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 19 exhaust.” Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Although good cause under Rhines 20 does not require a showing of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654, 661- 21 62 (9th Cir. 2005), a petitioner must do more than simply assert that he was “under the 22 impression” that his claim was exhausted, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 23 2008). “[U]nspecific, unsupported excuses for failing to exhaust—such as unjustified 24 ignorance—[do] not satisfy the good cause requirement.” Blake, 745 F.3d at 981. Rather, “good 25 cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient 26 evidence, to justify” his failure to exhaust his claims. Id. at 982. 27 28 1 Here, petitioner has exhausted some of his claims at the state level, while leaving others 2 unexhausted.1 See ECF No. 11 at 2-3. Petitioner states that he has been unable to exhaust all his 3 claims because his appellate counsel failed to follow-up after the denial of his direct appeal and 4 “in all respects, abandoned” him. ECF No. 16 at 2. Although “[a] petitioner who is without 5 counsel in state post-conviction proceedings cannot be expected to understand the technical 6 requirements of exhaustion and should not be denied the opportunity to exhaust a potentially 7 meritorious claim simply because he lacked counsel,” Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 8 2017), petitioner had counsel at his direct appeal and he has failed to provide any evidence that 9 his counsel failed to contact him after his appeal was rejected. On the contrary, petitioner has 10 presented a letter from his appellate counsel which reveals that his counsel promptly notified him 11 that his conviction was affirmed on appeal, provided him with a copy of his entire appeal record, 12 and provided him with instructions and the filing deadline for seeking review before the 13 California Supreme Court. ECF No. 7 at 3. 14 Moreover, petitioner has failed to seek any state-level habeas relief and his ostensible lack 15 of counsel since the denial of his direct appeal does not constitute good cause for his failure to do 16 so. The factual predicates of petitioner’s unexhausted claims were apparent to him at the time of 17 his trial in 2014. District courts in this Circuit have found that “Dixon does not apply and good 18 cause is lacking when a [pro se] petitioner has not filed any relevant state habeas petitions, 19 particularly when there is evidence that the petitioner has not been expeditious in seeking 20 relief.” See Stacy v. Gastelo, No. CV 17-5482-RGK (JPR), 2018 U.S. Dist. LEXIS 61656, at *2 21 (C.D. Cal. Feb. 20, 2018) (citing Dixon, 847 F.3d at 721) (finding no good cause for a Rhines stay 22 where the petitioner did not file any habeas petition in state court and his filings did not supply an 23 explanation for not diligently pursuing his state remedies); Sangurima v. Montgomery, No. 2:17- 24 cv-05022-PSG-KES, 2017 U.S. Dist. LEXIS 217018, at *7-8 (C.D. Cal. Dec. 12, 2017) (finding 25 no good cause for a Rhines stay where petitioner had not filed any state habeas petition and 26 moved for a stay only in response to a federal order to show cause). 27 1 Petitioner has failed to exhaust his claims of ineffective assistance of trial counsel and a trial 28 court violation of Apprendi. See Apprendi v. New Jersey, 530 U.S. 466 (2000). 1 Petitioner also states that he is a “layman to the law” and is “seeking the assistance of 2 individuals incarcerated with him.” ECF No. 16 at 2. However, mere ignorance of the law is 3 insufficient to demonstrate good cause because such a determination “would render stay-and- 4 abeyance orders routine” and would be contrary to Rhines’ instruction that district courts should 5 only stay mixed petitions in “limited circumstances.” See Wooten v. Kirkland, 540 F.3d 1019, 6 1024 (9th Cir. 2008); Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 7 1986) (noting that ignorance of the law does not constitute an excuse from due 8 diligence); Alcaraz v. Giurbino, No. CIV S-05-1597, 2009 U.S. Dist. LEXIS 114017, at *2 (E.D. 9 Cal. Dec. 8, 2009) (finding that ignorance of the law does not establish good cause for failure to 10 exhaust). 11 Therefore, petitioner has not demonstrated good cause for his failure to exhaust his 12 claims.2 He is ordered to show cause why his motion to stay his petition should not be denied. In 13 his response, petitioner should “set forth a reasonable excuse, supported by sufficient evidence, to 14 justify” his failure to exhaust his claims under Rhines. See Blake, 745 F.3d at 981. Petitioner 15 should provide all relevant evidence in support of his motion, which may include correspondence 16 with and affidavits from previous counsel. 17 b. Kelly Stay 18 In the alternative, petitioner requested to proceed with a stay under Kelly. ECF No. 16 at 19 3. However, considering the procedural posture of petitioner’s case, a stay under Kelly may 20 foreclose petitioner from seeking federal relief on his unexhausted claims altogether. Under 21 Kelly, a case moves through three stages: first, the petitioner amends his petition to delete any 22 unexhausted claims; second, the court, in its discretion, stays the amended, fully-exhausted 23
24 2 Because petitioner has failed to meet the first prong of Rhines, we need not address the remaining prongs. However, we briefly note that petitioner’s unexhausted claims do not appear 25 “plainly meritless” because they state violations of “clearly established federal law,” as required by § 2254(d)(1). And we have no reason to believe that petitioner engaged in “dilatory litigation 26 tactics,” such as “abusive litigation tactics or intentional delay.” See Rhines, 544 U.S. at 278. 27 Petitioner sought federal review in a timely manner, ECF No. 11 at 2, and states that the instant petition was filed as a “protective” measure, as contemplated by Rhines and Pace v. DiGuglielmo, 28 544 U.S. 408, 416 (2005), ECF No. 16 at 2. 1 petition, and holds it in abeyance while the petitioner has the opportunity to proceed to state court 2 to exhaust the deleted claims; and third, once the deleted claims have been exhausted in state 3 court, the petitioner may return to federal court and amend his federal petition, adding the newly- 4 exhausted claims. See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). 5 But, under Kelly, petitioner will only be able to amend his petition with his newly- 6 exhausted claims if those claims are “timely.” See King v. Ryan, 564 F.3d 1133, 1140-41 (9th 7 Cir. 2009). Under Kelly, his amended petition will be timely if either (1) the amended petition is 8 filed within AEDPA’s statute of limitations,3 see 28 U.S.C. § 2244(d), or (2) the new claim 9 “relates back” to his claims in his initial petition. See King, 564 F.3d at 1143; Mayle v. Felix, 545 10 U.S. 644, 664 (2005). Here, petitioner has already been forewarned that his federal petition 11 appears untimely.4 ECF No. 6. A stay under Kelly “does nothing to protect a petitioner’s 12 unexhausted claims from untimeliness.” King, 564 F.3d at 1141. And petitioner may have 13 trouble showing how his claims of ineffective assistance of counsel and an Apprendi violation 14 relate back to his initial claims. A claim that simply arises from “the same trial, conviction, or 15 sentence” does not necessarily relate back to the initial claims. See Mayle, 545 at U.S. 659. To 16 “relate back,” the new claim must share a “common core of operative facts” with the claims in the 17 pending petition. Id. 18 For these reasons, if petitioner wishes to proceed under Kelly, we will require him to 19 notify this court of his intention in his response to this order. Petitioner should carefully consider 20 the implications of this option, as it may completely preclude him from seeking federal relief on 21 his unexhausted claims. 22 c. Proceeding with Exhausted Claims Only 23 Alternatively, petitioner may elect to dismiss his unexhausted claims and proceed with his 24 exhausted claims only. Considering that petitioner may not be able to show good cause under 25
3 Absent rare circumstances, a federal habeas petition must be filed within one year of “the date 26 on which the judgment became final by the conclusion of direct review or the expiration of the 27 time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). 4 Accordingly, petitioner may have to prove he is entitled to equitable tolling in future 28 proceedings of this case. ECF No. 8. □□□ 4649 VEAYU IN VR VUITTON Ve te PAY OV VY
1 | Rhines and that a stay under Kelly is unlikely to provide petitioner with the relief he seeks, 2 | dismissing his unexhausted claims may be petitioner’s only opportunity to seek federal habeas 3 | relief in any form. 4 I. Order 5 Petitioner’s motion for an extension of time to file an opposition to respondent’s motion to 6 | dismiss is granted. ECF No. 15. Petitioner’s opposition is due within 60 days of the date of 7 | service of this order. 8 Furthermore, within 60 days of the date of service of this order, petitioner is ordered to 9 | show cause why his motion to stay his petition should not be denied. Petitioner may respond 10 | with: (1) arguments and evidence demonstrating good cause under Rhines for his failure to 11 | exhaust his claims; (2) his intention to proceed with a stay under Kelly; or (3) his intention to 12 | dismiss his unexhausted claims and proceed with his exhausted claims only. 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ July 13, 2020 16 UNI STATES MAGISTRATE JUDGE 17 18 | No. 206. 19 20 21 22 23 24 25 26 27 28