7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 JESSE MORENO, Case No. 1:22-cv-00851-JLT-EPG-HC
11 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S MOTION TO STAY 12 v. AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 13 KATHLEEN ALLISON,
14 Respondent. (ECF No. 14)
15 16 Petitioner Jesse Moreno is a state prisoner proceeding pro se with a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. As the instant petition is unexhausted and Petitioner 18 has failed to demonstrate that at least one of his unexhausted claims is potentially meritorious, 19 the undersigned recommends denial of the motion to stay and dismissal of the petition without 20 prejudice. 21 I. 22 BACKGROUND 23 On June 21, 2022, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 24 1.) On July 12, 2022, the Court ordered Petitioner to show cause why the petition should not be 25 dismissed as unexhausted. (ECF No. 9.) Thereafter, Petitioner filed a motion to disqualify the 26 undersigned, which was denied.1 (ECF Nos. 12, 13.) On August 1, 2022, Petitioner moved to 27 1 Petitioner appealed the denial of his motion to disqualify. (ECF No. 15.) On August 17, 2022, the Ninth Circuit 1 stay the proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while Petitioner 2 exhausts his remedies in state court. (ECF No. 14.) 3 II. 4 DISCUSSION 5 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 6 of a habeas petition and allow a district court to dismiss a petition before the respondent is 7 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 8 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 9 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 10 A. Exhaustion 11 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 12 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 13 on comity to the state court and gives the state court the initial opportunity to correct the state’s 14 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 15 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with a full and fair opportunity to consider each claim before 17 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 18 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 19 Here, the petition states that Petitioner’s claims regarding ineffective assistance of trial 20 counsel and the courts violating Petitioner’s constitutional rights were not previously presented 21 to any other court. (ECF No. 1 at 5.)2 Petitioner currently has various petitions and motions 22 pending in the Fresno County Superior Court. (Id. at 3–4.) In his motion to stay, Petitioner 23 appears to acknowledge that all of his claims are unexhausted. (ECF No. 14 at 1, 3.) As 24 Petitioner has not sought relief in the California Supreme Court for the claims that he raises in 25 the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 26 § 2254(b)(1). 27 /// 1 B. Stay and Abeyance 2 Petitioner requests that the Court stay the instant proceeding pursuant to Rhines v. 3 Weber, 544 U.S. 269 (2005), while Petitioner exhausts his remedies in state court. (ECF No. 14.) 4 Under Rhines, “stay and abeyance [is] available only in limited circumstances,” and only when: 5 (1) there is “good cause” for the failure to exhaust; (2) the “unexhausted claims are potentially 6 meritorious”; and (3) “there is no indication that the petitioner engaged in intentionally dilatory 7 litigation tactics.” 544 U.S. at 277–78. 8 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 9 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 10 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 11 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 12 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).3 The Ninth Circuit 13 has “held that good cause under Rhines does not require a showing of ‘extraordinary 14 circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the 15 impression’ that his claim was exhausted.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) 16 (quoting Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005); and Wooten v. Kirkland, 540 17 F.3d 1019, 1024 (9th Cir. 2008)). “While a bald assertion cannot amount to a showing of good 18 cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, 19 will.” Blake, 745 F.3d at 982. The Ninth Circuit has held that a “statement that ‘there was no 20 counsel’ in [a petitioner’s] state post-conviction case is sufficient to establish good cause” for a 21 Rhines stay. Dixon, 847 F.3d at 721. See also Cage v. Montgomery, 812 F. App’x 679, 680 (9th 22 Cir. 2020) (holding that “the good cause standard is satisfied when a petitioner lacked the 23 effective assistance of counsel during state postconviction review proceedings” regardless of 24 whether a state postconviction review petition was filed). 25 ///
26 3 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 27 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 1 Here, Petitioner argues that he is entitled to a stay due to “his own ignorance of the law 2 and misunderstanding of . . . habeas procedure.” (ECF No. 14 at 1.) Even if the Court were to 3 assume Petitioner satisfies Rhines’s good cause requirement, Petitioner has not demonstrated that 4 his unexhausted claims are potentially meritorious. With regard to the claim of ineffective 5 assistance of trial counsel, the petition states that “[t]rial counsel provided ineffective assistance 6 when not: not objecting; not re-filing moving papers in higher court; no filing moving papers in 7 trial court; no filing moving papers in higher court.” (ECF No.
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7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9
10 JESSE MORENO, Case No. 1:22-cv-00851-JLT-EPG-HC
11 Petitioner, FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S MOTION TO STAY 12 v. AND DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 13 KATHLEEN ALLISON,
14 Respondent. (ECF No. 14)
15 16 Petitioner Jesse Moreno is a state prisoner proceeding pro se with a petition for writ of 17 habeas corpus pursuant to 28 U.S.C. § 2254. As the instant petition is unexhausted and Petitioner 18 has failed to demonstrate that at least one of his unexhausted claims is potentially meritorious, 19 the undersigned recommends denial of the motion to stay and dismissal of the petition without 20 prejudice. 21 I. 22 BACKGROUND 23 On June 21, 2022, Petitioner filed the instant petition for writ of habeas corpus. (ECF No. 24 1.) On July 12, 2022, the Court ordered Petitioner to show cause why the petition should not be 25 dismissed as unexhausted. (ECF No. 9.) Thereafter, Petitioner filed a motion to disqualify the 26 undersigned, which was denied.1 (ECF Nos. 12, 13.) On August 1, 2022, Petitioner moved to 27 1 Petitioner appealed the denial of his motion to disqualify. (ECF No. 15.) On August 17, 2022, the Ninth Circuit 1 stay the proceedings pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while Petitioner 2 exhausts his remedies in state court. (ECF No. 14.) 3 II. 4 DISCUSSION 5 The Rules Governing Section 2254 Cases (“Habeas Rules”) require preliminary review 6 of a habeas petition and allow a district court to dismiss a petition before the respondent is 7 ordered to file a response, if it “plainly appears from the petition and any attached exhibits that 8 the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 9 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 10 A. Exhaustion 11 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 12 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 13 on comity to the state court and gives the state court the initial opportunity to correct the state’s 14 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 15 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with a full and fair opportunity to consider each claim before 17 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 18 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 19 Here, the petition states that Petitioner’s claims regarding ineffective assistance of trial 20 counsel and the courts violating Petitioner’s constitutional rights were not previously presented 21 to any other court. (ECF No. 1 at 5.)2 Petitioner currently has various petitions and motions 22 pending in the Fresno County Superior Court. (Id. at 3–4.) In his motion to stay, Petitioner 23 appears to acknowledge that all of his claims are unexhausted. (ECF No. 14 at 1, 3.) As 24 Petitioner has not sought relief in the California Supreme Court for the claims that he raises in 25 the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 26 § 2254(b)(1). 27 /// 1 B. Stay and Abeyance 2 Petitioner requests that the Court stay the instant proceeding pursuant to Rhines v. 3 Weber, 544 U.S. 269 (2005), while Petitioner exhausts his remedies in state court. (ECF No. 14.) 4 Under Rhines, “stay and abeyance [is] available only in limited circumstances,” and only when: 5 (1) there is “good cause” for the failure to exhaust; (2) the “unexhausted claims are potentially 6 meritorious”; and (3) “there is no indication that the petitioner engaged in intentionally dilatory 7 litigation tactics.” 544 U.S. at 277–78. 8 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 9 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 10 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 11 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 12 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).3 The Ninth Circuit 13 has “held that good cause under Rhines does not require a showing of ‘extraordinary 14 circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the 15 impression’ that his claim was exhausted.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) 16 (quoting Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005); and Wooten v. Kirkland, 540 17 F.3d 1019, 1024 (9th Cir. 2008)). “While a bald assertion cannot amount to a showing of good 18 cause, a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, 19 will.” Blake, 745 F.3d at 982. The Ninth Circuit has held that a “statement that ‘there was no 20 counsel’ in [a petitioner’s] state post-conviction case is sufficient to establish good cause” for a 21 Rhines stay. Dixon, 847 F.3d at 721. See also Cage v. Montgomery, 812 F. App’x 679, 680 (9th 22 Cir. 2020) (holding that “the good cause standard is satisfied when a petitioner lacked the 23 effective assistance of counsel during state postconviction review proceedings” regardless of 24 whether a state postconviction review petition was filed). 25 ///
26 3 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 27 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 1 Here, Petitioner argues that he is entitled to a stay due to “his own ignorance of the law 2 and misunderstanding of . . . habeas procedure.” (ECF No. 14 at 1.) Even if the Court were to 3 assume Petitioner satisfies Rhines’s good cause requirement, Petitioner has not demonstrated that 4 his unexhausted claims are potentially meritorious. With regard to the claim of ineffective 5 assistance of trial counsel, the petition states that “[t]rial counsel provided ineffective assistance 6 when not: not objecting; not re-filing moving papers in higher court; no filing moving papers in 7 trial court; no filing moving papers in higher court.” (ECF No. 1 at 5.) With regard to the claim 8 of ineffective assistance of appellate counsel, Petitioner asserts that appellate counsel provided 9 ineffective assistance “[w]hen not filing any and all claims possible in direct appeal, whether 10 argued in instant petition or not; directed or connected to I.A.C. on trial counsel or not.” (Id.) 11 With regard to his last claim for relief, Petitioner contends that the state court violated his 12 constitutional rights when “CCP 170.6 denied; speedy trial time-outs; failed to suppress illegally 13 obtained evidence; failed to recuse.” (Id.) Petitioner has not provided the Court—either in the 14 petition or the motion to stay—with sufficient facts to demonstrate any of his claims are 15 potentially meritorious. Petitioner does not provide any factual allegations regarding, inter alia, 16 what objections trial counsel should have raised and what “moving papers” should have been 17 filed, what claims appellate counsel should have raised on appeal, what evidence was illegally 18 obtained and should have been suppressed, or the basis for Petitioner’s request to recuse the 19 judge. 20 Based on the foregoing, the Court finds that Petitioner has not satisfied the requirements 21 under Rhines, and the motion to stay should be denied. 22 III. 23 RECOMMENDATION 24 Accordingly, the undersigned HEREBY RECOMMENDS that: 25 1. Petitioner’s motion to stay (ECF No. 14) be DENIED; and 26 2. The petition for writ of habeas corpus be DISMISSED WITHOUT PREJUDICE for 27 failure to exhaust state court remedies. 1 This Findings and Recommendation is submitted to the assigned United States District 2 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 | Rules of Practice for the United States District Court, Eastern District of California. Within 4 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 5 | written objections with the court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 7 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 8 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 9 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 10 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 Db IT IS SO ORDERED. 13} Dated: _ August 26, 2022 [see ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28