(HC) Miller v. Phillips

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW COPELAND MILLER, No. 2:22-cv-1270 WBS DB 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CHRISTIAN PFEIFFER,1 15 Respondent. 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. Petitioner challenges his 2014 conviction in the San Joaquin 19 Superior Court. (ECF No. 1 at 2.) Presently before the court is respondent’s fully briefed motion 20 to dismiss and opposition to petitioner’s motion for stay. For the reasons set forth below, the 21 undersigned will recommend that the motion to dismiss be granted, the motion for stay be denied, 22 and the petition be dismissed without prejudice. 23

24 1 Counsel for respondent notes that the current warden of the Substance Abuse Treatment Facility and State Prison, Corcoran, where petitioner is presently housed, is Bryan D. Phillips. (ECF No. 25 11 at 1.) Respondent requests that the court substitute Bryan D. Phillips as respondent in this action pursuant to Federal Rule of Civil Procedure 25(d). (Id.) The court will grant the request 26 and direct the Clerk of Court to substitute Warden Christian Pfeiffer’s name with that of Warden 27 Bryan D. Phillips’ in the case caption on the docket. See Rule 2(a), Rules Governing § 2254 Cases; Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (citation omitted) (stating 28 proper respondent in federal habeas petition is petitioner’s immediate custodian). 1 BACKGROUND 2 I. Allegations in the Petition 3 Petitioner challenges his 2014 conviction in the San Joaquin Superior Court. (ECF No. 1 4 at 2.) He raises four grounds for relief in the petition. (Id.) He states he received ineffective 5 assistance of counsel because trial and appellate counsel failed to: (1) argue petitioner 6 knowingly/maliciously attempted to dissuade a victim; (2) argue absence of evidence in the 911 7 dispatch records; (3) argue that the gun introduced at trial was not the actual gun taken from him 8 at the time of his arrest; and (4) argue that petitioner’s robbery conviction was improper because 9 no property or money was taken. (Id. at 3-11.) 10 II. State Criminal Conviction and Postconviction Proceedings 11 Following a trial, petitioner was convicted of kidnapping for robbery, attempted second 12 degree robbery, being a felon in possession of a firearm, making criminal threats, unlawfully 13 possessing ammunition, and knowingly and maliciously attempting to dissuade a victim by force 14 or threat. (LD2 at 1-2.) 15 Petitioner appealed his conviction in the California Court of Appeal for the Third 16 Appellate District. (LD 2.) The appellate court reversed the kidnapping for robbery conviction 17 and remanded the case to the trial court for resentencing. (LD 2 at 23.) Petitioner filed a petition 18 for review in the California Supreme Court. (LD 3.) The petition for review was denied on June 19 14, 2017. (LD 4.) 20 Petitioner was resentenced on August 7, 2018. (LD 5.) Petitioner appealed his new 21 sentence, and the appellate court again remanded the matter to the San Joaquin Superior Court. 22 (LD 6.) Petitioner was resentenced on May 24, 2021. (LD 7.) He did not file a direct appeal 23 thereafter. However, as discussed below, he filed a petition for writ of habeas corpus in the San 24 Joaquin Superior Court that was received on September 21, 2022, and denied on November 15, 25 2022. (ECF No. 11 at 2.) 26

27 2 Along with the motion to dismiss, respondent electronically lodged documents from petitioner’s criminal case and subsequent appeals. (ECF No. 12.) Documents are identified by their Lodged 28 Document number, “LD,” assigned to them by respondent. 1 III. Federal Habeas Proceedings 2 Petitioner initiated this action with the filing of the petition on July 7, 2022.3 (ECF No. 3 1.) Upon screening, the undersigned determined that the allegations in the petition were 4 sufficient to direct respondent to file a responsive pleading. (ECF No. 6.) Because the petition 5 also included a motion for stay (ECF No. 1 at 40-43), respondent was also directed to respond to 6 petitioner’s request for stay. (ECF No. 6 at 2.) 7 Respondent filed a motion to dismiss and opposition to petitioner’s motion for stay on 8 April 12, 2023. (ECF No. 11.) Petitioner failed to timely file an opposition or statement of no 9 opposition to respondent’s motion. The undersigned directed petitioner to either submit a 10 response to the motion or show cause in writing why the petition should not be dismissed for 11 failure to prosecute. (ECF No. 13.) Thereafter, petitioner sought and obtained three extensions of 12 time to file an opposition. (ECF Nos. 14, 15, 16, 17, 18, 19.) Petitioner submitted an opposition 13 on January 8, 2024 (ECF No. 20) and respondent submitted a reply on January 26, 2024 (ECF 14 No. 21). 15 MOTION TO DISMISS AND OPPOSITION TO MOTION FOR STAY 16 I. Respondent’s Motion 17 Respondent argues the petition should be dismissed because the claims contained therein 18 are unexhausted. (ECF No. 11 at 3.) Respondent states that petitioner failed to present his 19 ineffective assistance of counsel claims to the California Supreme Court and that petitioner 20 concedes the claims are unexhausted. (Id.) 21 Respondent further argues that petitioner has not shown good cause to warrant a stay 22 pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to allow petitioner to exhaust and that a stay 23 pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) is not warranted because none of the 24 claims presented in the petition are exhausted. (Id. at 5-8.) 25 //// 26 3 Under the prison mailbox rule, a document is deemed served or filed on the date a prisoner signs 27 the document and gives it to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Campbell v. Henry, 614 F.3d 1056, 1059 (9th Cir. 28 2010) (applying the mailbox rule to both state and federal filings by incarcerated inmates). 1 II. Petitioner’s Opposition and Motion for Stay 2 Petitioner argues in the opposition that he filed “a petition in the Supreme State Courts 3 requesting to exhaust remedies in a timely matter [sic].” (ECF No. 20 at 1.) He attached a copy 4 of his “legal/confidential mail records” which he argues shows that he “filed both petitions on the 5 exact same day[,] July 15[,] 2022 San Joaquin County Superior Courthouse and USDC, Eastern 6 District.” (Id.) He states the petition filed in the instant action was docketed on July 18, 2022, 7 but the petition filed in the San Joaquin Superior Court was not docketed until September 21, 8 2022. Petitioner states the delay “is an error which is on behalf of the superior court due to 9 negligence and the Motion for stay should be granted and or Petitioner ask for request to file a 10 ‘Mute’ until [his] remedies are exhausted in supreme court.” (Id. at 1-2.) 11 In support of petitioner’s motion for stay, he argues that the deadline for filing would have 12 expired and on the advice of a jailhouse lawyer, he filed a motion for stay simultaneously with the 13 petition. (ECF No. 1 at 40.) Petitioner’s motion for stay indicates that he is requesting a stay to 14 avoid filing a successive petition. (Id. at 41.) He further states, he “could not have known the 15 unrelated issue in the Court of Appeal remand order to the exhausted claims would not toll the 1- 16 year limitation for federal habeas review.” (Id. at 42.) 17 III. Respondent’s Reply 18 Respondent argues in the reply that petitioner has not presented the claims in the petition 19 for review in the California Supreme Court. (ECF No. 21 at 1.) Respondent further argues that 20 petitioner has not shown good cause or diligence sufficient to warrant a stay. (Id. at 2.) 21 IV. Legal Standards 22 A. Motions to Dismiss 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 24 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 25 entitled to relief in the district court . . . .” Rule 4, Rules Governing Section 2254 Cases; see also 26 White v. Lewis, 874 F.2d 599, 602-03 (9th Cir. 1989) (meritorious motions to dismiss permitted 27 under Rule 4); Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983) (Rule 4 “explicitly 28 allows a district court to dismiss summarily the petition on the merits when no claim for relief is 1 stated”); Vargas v. Adler, No. 1:08-cv-1592 YNP [DLB] (HC), 2010 WL 703211, at *2 (E.D. 2 Cal. 2010) (granting motion to dismiss a habeas claim for failure to state a cognizable federal 3 claim). 4 Moreover, the Advisory Committee Notes to Rule 8 of the Rules Governing Section 2254 5 Cases indicate that the court may dismiss a petition for writ of habeas corpus: on its own motion 6 under Rule 4; pursuant to the respondent’s motion to dismiss; or after an answer to the petition 7 has been filed. See, e.g., Miles v. Schwarzenegger, No. CIV S-07-1360 LKK EFB P, 2008 WL 8 3244143, at *1 (E.D. Cal. Aug. 7, 2008) (dismissing habeas petition pursuant to respondent’s 9 motion to dismiss for failure to state a claim), findings and recommendations adopted, No. CIV 10 S-07-1360 (E.D. Cal. Sept. 26, 2008). However, a petition for writ of habeas corpus should not 11 be dismissed without leave to amend unless it appears that no tenable claim for relief can be 12 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971) (per curium). 13 B. Exhaustion 14 A petitioner in state custody proceeding with a petition for a writ of habeas corpus must 15 exhaust state judicial remedies. See 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion 16 requirement by providing the highest state court with a full and fair opportunity to consider all 17 claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); 18 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). 19 The state court has had an opportunity to rule on the merits when the petitioner has fairly 20 presented the claim to that court. The fair presentation requirement is met where the petitioner 21 has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at 22 277-78. Generally, it is “not enough that all the facts necessary to support the federal claim were 23 before the state courts . . . or that a somewhat similar state-law claim was made.” Anderson v. 24 Harless, 459 U.S. 4, 6 (1982) (internal citation omitted). Instead, 25 [i]f state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to 26 the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an 27 evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not 28 only in federal court, but in state court. 1 Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus 2 must include reference to a specific federal constitutional guarantee, as well as a statement of the 3 facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The 4 United States Supreme Court has held that a federal district court may not entertain a petition for 5 habeas corpus unless the petitioner has exhausted state remedies with respect to each of the 6 claims raised. Rose v. Lundy, 455 U.S. 509, 522 (1982). A mixed petition containing both 7 exhausted and unexhausted claims must be dismissed. Id. 8 C. Stay 9 There are two procedures available for staying a petition. In Rhines v. Weber, 544 U.S. 10 269 (2005), the Supreme Court held that “a district court may stay the petition and hold it in 11 abeyance to allow the petitioner to return to state court and present his unexhausted claims.” 12 Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014) (citing Rhines, 544 U.S. at 275-76). Under 13 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), the Ninth Circuit held that a district court may stay 14 a petition setting forth only exhausted claims, to permit exhaustion of additional claims with the 15 intention that they will be added by amendment following exhaustion. King v. Ryan, 564 F.3d 16 1133, 1135 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1063). 17 The “Kelly procedure,” has been described by the Ninth Circuit as involving a three-step 18 process: 19 (1) Petitioner amends his petition, to delete any unexhausted claims; 20 (2) The court stays and holds in abeyance the amended, fully exhausted petition, allowing the 21 petitioner the opportunity to proceed to state court to exhaust the deleted claims; and 22 (3) The petitioner later amends his petition and re-attaches the newly-exhausted claims to the 23 original petition. 24 King, 564 F.3d at 1135. A petitioner proceeding under the Kelly procedure may be able to amend 25 the petition to include the newly exhausted claims if they are timely under the statute of 26 limitations governing federal habeas petitions.4 If the claims are not timely, “a petitioner may 27 4 The habeas corpus statute imposes a one-year statute of limitations for filing non-capital habeas 28 corpus petitions in federal court. In most cases, the one-year period begins to run on the date on 1 amend a new claim into a pending federal habeas petition . . . only if the new claim shares a 2 ‘common core of operative facts’ with the claims in the pending petition; a new claim does not 3 ‘relate back’ . . . simply because it arises from ‘the same trial, conviction, or sentence.’” King, 4 564 F.3d at 1141 (internal citations omitted). 5 Under Rhines, a district court may stay a petition containing exhausted and unexhausted 6 claims if the following conditions are met: (1) “the petitioner had good cause for his failure to 7 exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is no indication 8 that the petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at 278. The 9 Supreme Court has made clear that this option “should be available only in limited 10 circumstances.” Id. at 277. Moreover, a stay that is granted pursuant to Rhines may not be 11 indefinite; reasonable time limits must be imposed on a petitioner’s return to state court. Id. at 12 277-78. 13 V. Analysis 14 A. Motion to Dismiss 15 Respondent argues that the petition raises four ineffective assistance of counsel claims and 16 none of those claims were raised in the California Supreme Court. (ECF No. 11 at 3.) In support 17 of the motion, respondent filed portions of the state court record. In response, petitioner states he 18 filed “a petition in the Supreme State Courts requesting to exhaust remedies in a timely matter 19 [sic].” (ECF No. 20 at 1.) In support of this argument, he has attached a copy of his prison mail 20 log showing that on the same day he mailed the petition in this action he also sent a petition to the 21 San Joaquin Superior Court. (Id. at 1, 5.) 22 After reviewing the record in this action, it appears that because petitioner filed no post- 23 conviction collateral challenges in state court before filing the instant petition, he has only 24 //// 25

which the state court judgment became final by the conclusion of direct review or the expiration 26 of time for seeking direct review, although the statute of limitations is tolled while a properly 27 filed application for state post-conviction or other collateral review is pending. 28 U.S.C. § 2244(d). 28 1 exhausted the claims raised in his petition for review filed in the California Supreme Court. The 2 claims raised in the petition for review are: 3 I. REVIEW IS REQUIRED ON AN ISSUE OF SUBSTANTIAL IMPORTANCE: WAS THERE 4 INSUFFICIENT EVIDENCE TO SUPPORT APPELLANT’S CONVICTION FOR DISSUASION OF A 5 WITNESS IN VIOLATION OF PENAL CODE SECTION 136.1(c)(1) WHICH WAS NOT A CLEAR THREAT FOR 6 FUTURE CONDUCT 7 II. REVIEW IS REQUIRED ON AN ISSUE OF SUBSTANTIAL IMPORTANCE: WAS APPELLANT 8 DEPRIVED OF HIS FEDERAL CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF 9 LAW BECAUSE OF THE FAILURE TO ADEQUATELY INSTRUCT ON THE REQUIREMENT THAT 10 APPELLANT MUST SPECIFICALLY INTEND TO DISCOURAGE THE VICTIM FROM REPORTING THE 11 CRIME; WAS THE OMISSION OF THIS SPECIFIC INTENT ELEMENT, WHICH WENT TO THE HEART OF 12 APPELLANT’S DEFENSE, PREJUDICIAL ERROR 13 III. THE PROSECUTION DID NOT MEET ITS BURDEN TO PROVE THE WARRANTLESS SEARCH WAS 14 JUSTIFIED; INSTEAD, THE WARRANTLESS SEARCH WAS IN VIOLATION OF APPELLANT’S RIGHTS 15 UNDER THE 4TH AND 14TH AMENDMENT. THEREFORE THE TRIAL COURT’S RULING 16 UPHOLDING THE SEARCH MUST BE REVERSED AND ALL FRUITS OF THE SEARCH MUST BE EXCLUDED 17 IV. THE CUMULATIVE EFFECT OF THE ERRORS 18 DISCUSSED ABOVE DEPRIVED APPELLANT OF DUE PROCESS OF LAW AND A FAIR TRIAL AND 19 REQUIRES REVERSAL OF APPELLANT’S CONVICTION 20 (LD 3 at 1-39.) 21 None of these claims were raised in the petition filed in this action. Petitioner alleges that 22 he submitted a petition in state court at the same time he filed the petition in this action. 23 However, that petition was filed in the San Joaquin Superior Court. (See ECF No. 20 at 4; LD 8.) 24 In order to exhaust state remedies, a federal claim must be presented to the State’s highest 25 court. Castille v. Peoples, 489 U.S. 346 (1989). Here, none of the claims raised in the petition 26 were presented to the California Supreme Court. Because petitioner has not presented his claims 27 for review before the California Supreme Court, he has failed to exhaust the claims presented in 28 1 the petition. Duncan, 513 U.S. 365; Picard, 404 U.S. at 276; Johnson v. Zenon, 88 F.3d 828, 829 2 (9th Cir. 1996). In light of petitioner’s failure to exhaust, the undersigned will recommend that 3 the petition be dismissed. Rose, 455 U.S. at 522 (court may not entertain a petition for habeas 4 corpus unless petitioner has exhausted state remedies with respect to each of the claims). 5 B. Motion for Stay 6 The court will analyze whether a stay is warranted pursuant to Rhines and Kelly because 7 petitioner has not indicated which theory applies to his petition. 8 In support of his motion for stay, petitioner states he “could not have known the unrelated 9 issue in the Court of Appeal remand order to the exhausted claims would not toll the 1-year 10 limitation for federal habeas review.” (ECF No. 1 at 42.) Ignorance of the law is not sufficient to 11 constitute good cause. See e.g., Hamilton v. Clark, No. CIV S-08-1008 EFB P, 2010 WL 530111 12 at *2 (E.D. Cal. Feb. 9, 2010); Alcaraz v. Giurbino, No. CIV S-05-1597, 2009 WL 4799333 at *2 13 (E.D. Cal. Dec. 8, 2009); Barrera v. Muniz, No. 2:14-cv-2260 JAM DAD P, 2015 WL 4488235 at 14 *3 (E.D. Cal. July 23, 2015). 15 Petitioner’s conviction became final on July 23, 2021, sixty days after he was resentenced 16 on May 24, 2021. (ECF No. 11 at 5.) Petitioner fails to otherwise explain why he could not have 17 discovered and exhausted the grounds in this petition earlier. Rather, he states that imposition of 18 stay will prevent him from filing a second or successive petition. (ECF No. 1 at 42.) A 19 conclusory request for the imposition of a stay is insufficient to demonstrate good cause. “An 20 assertion of good cause without evidentiary support will not typically amount to a reasonable 21 excuse justifying a petitioner’s failure to exhaust.” Blake, 745 F.3d at 982. “While a bald 22 assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence 23 to justify a petitioner’s failure to exhaust, will.” Id. at 982-83 (petitioner supported allegation of 24 ineffective assistance of postconviction (i.e. habeas) counsel in failing to investigate petitioner’s 25 mental problems and childhood abuse with evidence of petitioner’s abusive upbringing and 26 history of mental illness, including declarations and a psychological report). 27 The Kelly procedure is not warranted here because the Kelly procedure applies to mixed 28 petitions that contain both exhausted and unexhausted claims, Leonard v. Anglea, No. 2:19-cv- 1 | 0230 TLN DB P, 2019 WL 2613381, at *1 (E.D. Cal. June 26, 2019), and as set forth above, none 2 | of the grounds alleged in the petition are exhausted. 3 The undersigned will recommend that petitioner’s motion for stay be denied because he 4 | has not shown a stay pursuant to Rhines or Kelly is warranted. 5 CONCLUSION 6 For the reasons set forth above, IT IS HEREBY ORDERED that the Clerk of the Court is 7 | directed to substitute the name of “Bryan D. Phillips” for “Christian Pfeiffer” in the case caption 8 || of the docket. 9 IT IS HEREBY RECOMMENDED that: 10 1. Petitioner’s request for stay be denied; and 11 2. Respondent’s motion to dismiss (ECF No. 11) be granted and the petition be dismissed 12 | without prejudice. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Finding and Recommendations.” Any response to the 18 | objections shall be filed and served within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 | appeal the District Court’s Order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: February 9, 2024

23 A ORAH BARNES UNITED STATES MAGISTRATE JUDGE 25 26 27 28 DB/DB Prisoner Inbox/Habeas/S/mill1270.MTD+stay 10