(HC) Smith v. Foss

• Court: District Court, E.D. California
• Decided: December 8, 2021
• Docket: 1:21-cv-01395
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JEROME SMITH, ) Case No.: 1:21-cv-01395-NONE-JLT (HC) 12 ) Petitioner, ) ORDER GRANTING MOTION FOR A KELLY 13 ) STAY v. ) 14 ) (Doc. 3) TAMMY FOSS, Warden, ) 15 Respondent. ) ) 16

17 On September 10, 2021, Petitioner filed the instant petition for writ of habeas corpus, which 18 appears to raise two exhausted claims and three unexhausted claims (Doc. 1) and filed a motion for a 19 stay and abeyance of the proceedings (Doc. 3). The Court directed Respondent to respond to the 20 motion for stay and abeyance. (Doc. 7.) On October 20, 2021, Respondent filed an opposition to 21 Petitioner’s motion for a Rhines stay and a non-opposition to a Kelly stay. (Doc. 11.) As discussed 22 below, the Court will grant a Kelly stay. 23 DISCUSSION 24 I. Preliminary Review of Petition 25 Rule 4 of the Rules Governing Section 2254 Cases requires the Court to conduct a preliminary 26 review of each petition for writ of habeas corpus. The Court must summarily dismiss a petition “[i]f it 27 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in 28 the district court. . .” Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir 1990). The Advisory 1 Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ of habeas corpus, 2 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 3 answer to the petition has been filed. 4 II. Exhaustion 5 A petitioner who is in state custody and wishes to collaterally challenge his conviction by a 6 petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The 7 exhaustion doctrine is based on comity to the state court and gives the state court the initial 8 opportunity to correct the state’s alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 9 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion 10 requirement by providing the highest state court with a full and fair opportunity to consider each claim 11 before presenting it to the federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995). 12 III. Motion for Stay and Abeyance 13 Traditionally, a district court has had the discretion to stay a petition which it may validly 14 consider on the merits. Calderon v. United States Dist. Court (Taylor), 134 F.3d 981, 987-988 (9th Cir. 15 1998); Greenawalt v. Stewart, 105 F.3d 1268, 1274 (9th Cir.), cert. denied, 519 U.S. 1102 16 (1997). However, the Ninth Circuit has held that Taylor in no way granted “district courts carte 17 blanche to stay even fully exhausted habeas petitions.” Taylor, 134 F.3d at 988 n. 11. Granting a stay 18 is appropriate where there is no intention on the part of the Petitioner to delay or harass and in order to 19 avoid piecemeal litigation. Id. In addition, the Ninth Circuit has indicated that it is proper for a district 20 court, in its discretion, to hold a petition containing only exhausted claims in abeyance in order to 21 permit the petitioner to return to state court to exhaust his state remedies. Kelly v. Small, 315 F.3d 22 1063, 1070 (9th Cir. 2003); Ford v. Hubbard, 305 F.3d 875, 882-883 (9th Cir. 2002); James v. Pliler, 23 269 F.3d 1124, 1126-1127 (9th Cir. 2002); Taylor, 134 F.3d 981. 24 Two procedures are available to a habeas petitioner who wishes to stay a pending federal 25 petition while exhausting claims in state court: the Rhines procedure and the Kelly procedure. 26 See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). The appropriate procedure in a particular case 27 depends on whether the petition is “mixed” or fully exhausted. See id. 28 Under Rhines, 544 U.S. 269, a district court has discretion to stay a mixed or wholly 1 unexhausted petition to allow a petitioner time to present his or her unexhausted claims to state 2 courts. Id. at 276; see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding a district court has the 3 discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth 4 in Rhines). This stay and abeyance procedure is called a “Rhines stay” and is available only when: (1) 5 there is “good cause” for the failure to exhaust; (2) each unexhausted claim is not “plainly meritless;” 6 and (3) the petitioner did not intentionally engage in dilatory litigation tactics. Rhines, 544 U.S. at 7 277-78. 8 Under Kelly, 315 F.3d 1063, the district court may stay a petition’s exhausted claims to allow 9 the petitioner time to exhaust unexhausted claims in state court. Kelly, 315 F.3d at 1070-71. Unlike 10 a Rhines stay, a Kelly stay “does not require that a petitioner show good cause for his failure to 11 exhaust state court remedies.” King v. Ryan, 564 F.3d 1133, 1135. A Kelly stay involves a three-step 12 procedure: “(1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays 13 and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to 14 proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and 15 re-attaches the newly-exhausted claims to the original petition.” Id. (citing Kelly, 315 F.3d at 1070- 16 71). Thus, while “Rhines allows a district court to stay a mixed petition, and does not require that 17 unexhausted claims be dismissed while the petitioner attempts to exhaust them . . . Kelly allows the 18 stay of fully exhausted petitions, requiring that any unexhausted claims be dismissed.” Id. at 1139- 19 40 (emphasis in original) (citing Jackson, 425 F.3d at 661). A petitioner’s use of Kelly’s three-step 20 procedure is subject to the requirement of Mayle v. Felix, 545 U.S. 644 (2005), that any newly 21 exhausted claims that a petitioner seeks to add to a pending federal habeas petition must be timely or 22 relate back to claims contained in the original petition that were exhausted at the time of 23 filing. King, 564 F.3d at 1143. 24 Respondent contends that Petitioner has not met the requirements for a stay under Rhines. 25 (Doc. 11 at 1-5.) Petitioner is challenging his March 6, 2017, conviction of murder, arson of an 26 inhabited dwelling, and unlawful possession of a firearm. (Doc. 1; LD 1-2.)1 Petitioner raises five 27 28 1 1 grounds: Petitioner argues that there is insufficient evidence to support his murder conviction (ground 2 one), trial counsel was ineffective for failing to object to the prosecution’s explanation of its burden of 3 proof during closing argument (ground two), trial counsel failed to conduct a proper investigation or to 4 contact and present the same witnesses who testified favorably in his first trial and that appellate 5 counsel was ineffective for not raising the claim on appeal (ground three); trial counsel was ineffective 6 for not challenging the trial court’s burden of proof instruction and appellate counsel was ineffective 7 for not raising the claim on appeal (ground four); and cumulative error (ground five). (Doc. 1 at 5-18.) 8 He claims he has exhausted grounds one and two, acknowledges that he has not exhausted grounds 9 three and four, and makes no mention of whether he has exhausted ground five, which it appears he 10 has not. (See Doc. 3.) 11 Petitioner fails to provide evidence of good cause for the late emergence of his unexhausted 12 ineffective assistance of counsel and cumulative error claims. As Respondent notes, Petitioner claims 13 only that he is in the process of exhausting his claims in the state courts, and he fails to explain why he 14 did not raise his claims sooner on a state court habeas petition. (Doc. 11 at 3.) And that Petitioner was 15 proceeding without counsel in his state postconviction proceedings does not equate to good cause. (Id.; 16 see Doc. 3 at 2.) “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, 17 supported by sufficient evidence, to justify that failure.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 18 2014). “An assertion of good cause without evidentiary support will not typically amount to a 19 reasonable excuse justifying a petitioner’s failure to exhaust.” Id. 20 Additionally, though the Supreme Court stated that reasonable confusion over whether a state 21 filing would be timely would ordinarily constitute good cause, see Pace v. DiGuglielmo, 544 U.S. 408, 22 416 (2005), such is not the case here. Petitioner does not maintain that he is uncertain whether the state 23 supreme court would find his future habeas petition timely. (See Doc. 3.) Even if he had, as 24 Respondent asserts, Pace does not apply here because Petitioner never presented his unexhausted 25 claims to the state court. (Doc. 11 at 4.) Pace involved a petitioner already pursuing state collateral 26 relief, confused as to whether his filings were timely. Petitioner’s first state habeas petition appears to 27 be void of claims and his second state habeas petition alleged the prosecutor altered evidence, a Brady 28 v. Maryland, 373 U.S. 83 (1963), violation, and counsel was ineffective for failing to object to the 1 Brady violation and altered evidence and failed to hire a qualified fire investigator. (LD 5; LD 7.) 2 Additionally, Petitioner has not pursued state review of his claims since the May 24, 2021 denial of his 3 second state petition. 4 Respondent further contends that Petitioner has not shown that he has not intentionally 5 engaged in dilatory tactics. (Doc. 11 at 4-5.) Petitioner previously filed two state habeas petitions, and 6 despite this, Petitioner failed to exhaust all claims before filing his federal habeas petition. Moreover, 7 he waited five months after the May 27, 2020 denial of his state supreme court review petition to file 8 his first state habeas petition on October 29, 2020. (LD 3-5.) Once Petitioner’s first state habeas 9 petition was denied on October 30, 2020, a period of nearly seven months passed before filing his 10 second state habeas petition on May 18, 2021. (LD 6-7.) Petitioner also appeared to take no action 11 during the approximate four-month period between the May 24, 2021 denial of his second state 12 petition and the filing of the instant federal habeas petition on September 10, 2021. (LD 8; Doc. 1.) 13 Respondent also argues that Petitioner has not made any efforts to continue the exhaustion of his 14 claims in state court since the May 24, 2021 denial of his second state habeas petition. (Doc. 11 at 5.) 15 Respondent alleges that Petitioner has not proffered any supported, persuasive reason why he did not 16 exhaust all claims in state court before filing his federal petition. (Id.) Petitioner has failed to carry his 17 burden of establishing good cause for the delayed presentation to the state court, and he has not 18 demonstrated that he has not intentionally engaged in dilatory tactics. Therefore, Petitioner fails to 19 demonstrate that a Rhines stay is appropriate. 20 Respondent does not oppose a Kelly stay. (Doc. 11 at 5.) Since a Kelly stay does not require 21 the showing of the lack of dilatory litigation tactics and good cause required for a Rhines stay, and 22 there being no other obvious impediment to granting a Kelly stay, the Court will grant a stay of 23 proceedings pursuant to Kelly while Petitioner exhausts grounds stated in his petition. Petitioner’s 24 habeas petition is a mixed petition containing both exhausted and unexhausted claims as described 25 above. Thus, Petitioner must submit an amended petition which deletes his unexhausted claims to 26 satisfy the first requirement for a Kelly stay, and the amended petition will be stayed and held in 27 abeyance to allow Petitioner an opportunity to exhaust his claims in state court. Following final action 28 by the state courts, Petitioner will then be allowed to file a third amended petition to attempt to re- 1 attach his exhausted claims. 2 Petitioner is cautioned, however, that while a Kelly stay does not require a showing of good 3 cause, it requires compliance with the one-year statute of limitations set forth in the AEDPA. 28 4 U.S.C. § 2244(d)(1). “A petitioner seeking to use the Kelly procedure will be able to amend his 5 unexhausted claims back into his federal petition once he has exhausted them only if those claims are 6 determined to be timely.” King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). After expiration of 7 the limitation period, “a petitioner may amend a new claim into a pending federal habeas petition . . . 8 only if the new claim shares a ‘common core of operative facts’ with the claims in the pending 9 petition; a new claim does not ‘relate back’ . . . simply because it arises from the ‘same trial, 10 conviction, or sentence.’” Id. at 1141 (internal citations omitted). 11 The Court will not indefinitely hold the petition in abeyance. See Taylor, 134 F.3d at 988 n. 11. 12 Petitioner must diligently pursue his state court remedies. He is directed to file a status report within 13 60 days of the date of service of this order, and he must file a status report every 90 days thereafter 14 advising the Court of the status of the state court proceedings. Following final action by the state 15 courts, provided the opinion is a denial of relief, Petitioner must file an amended petition within 30 16 days of the California Supreme Court’s order. Failure to comply with these instructions and time 17 allowances will result in this Court vacating the stay nunc pro tunc to the date of this order. Kelly, 315 18 F.3d at 1071. 19 ORDER 20 Accordingly, the Court ORDERS: 21 1) Petitioner’s motion for stay (Doc. 3) pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 22 2003), is GRANTED; 23 2) Petitioner is DIRECTED to submit an amended petition which deletes his unexhausted 24 claims within 14 days of the date of service of this order; 25 3) The amended petition shall be stayed and held in abeyance to allow Petitioner an 26 opportunity to exhaust his claims in state court; 27 4) Petitioner is DIRECTED to file a status report within 60 days of the date of service of this 28 order, and then every 90 days thereafter; 1 5) Petitioner is DIRECTED to file a third amended petition within 30 days of the California 2 Supreme Court’s order to attempt to re-attach his exhausted claims. 3 4 IT IS SO ORDERED.

5 Dated: December 8, 2021 _ /s/ Jennifer L. Thurston 6 CHIEF UNITED STATES MAGISTRATE JUDGE

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