1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALFRED R. SOSA, Case No. 1:21-cv-01094-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION TO STAY, 13 v. DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINE TO 14 WARDEN OF CORCORAN STATE ISSUE A CERTIFICATE OF PRISON, APPEALABILITY1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. Nos. 5, 8) 17 ORDER DIRECTING CLERK OF COURT TO 18 ASSIGN CASE TO DISTRICT JUDGE 19 20 Petitioner Alfred R. Sosa, a state prisoner proceeding pro se, seeks a writ of habeas corpus 21 under 28 U.S.C. § 2254. (Doc. No. 5, “Petition”). Before the Court is Petitioner’s motion for a 22 stay and abeyance under Rhines.2 (Doc. No. 8); Rhines v. Weber, 544 U.S. 269 (2005). The 23 Court ordered Respondent to respond to the motion to stay. (Doc. No. 16). Respondent filed an 24 opposition to Petitioner’s motion to stay (Doc. No. 18), and Petitioner filed a reply (Doc. No. 19). 25 For the reasons set forth more fully below, the undersigned recommends denying Petitioner’s 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2022). 2 While not initially specified in his motion to stay, Petitioner specifically argued he was entitled to a stay 28 under Rhines in his reply brief. (Doc. No. 19). 1 motion to stay and dismissing the Petition for lack of federal habeas jurisdiction. 2 BACKGROUND 3 Petitioner commenced this action in the Northern District of California by filing a letter 4 seeking “Clarification Habeas Corpus” and was directed to file a completed petition on the 5 approved form. (Doc. Nos. 1, 2). After Petitioner filed his Petition, the Northern District 6 transferred the case to this Court noting Petitioner was challenging a disciplinary proceeding and 7 the loss of good time credits. (Doc. Nos. 5, 13). The Petition challenges a disciplinary 8 conviction of attempted murder with a STG nexus that resulted in a loss of 360 days of credits. 9 (Doc. No. 5 at 2, 55). The Petition raises the following grounds for relief: (1) Petitioner’s 10 disciplinary finding of guilt should be vacated because it violates the Ashker Agreement; and (2) 11 the disciplinary finding of guilt should be vacated because it is based on insufficient evidence. 12 (Id. at 7-10). Petitioner also submitted a third conclusory claim that based on the “foregoing” two 13 grounds for relief, his federal due process rights were violated. (Id. at 11). Petitioner is serving 14 an indeterminate life sentence for murder. (Doc. No. 5 at 1-2). 15 On July 8, 2021, the same day Petitioner filed his Petition in the Northern District of 16 California, he simultaneously filed the instant motion to stay and hold his Petition in abeyance so 17 he could exhaust his claims. (Doc. No. 8). Petitioner concedes his claims have not been 18 exhausted because he “mistakenly believed that since his claims relate to a breach of the Ashker 19 Agreement he can seek judicial relief directly through this Court,” and asks the Court to stay the 20 Petition as he “intends to present such claims to the state court.” (Doc. No. 8). Respondent 21 argues the motion to stay should be denied because he failed to show good cause for granting the 22 stay and his claims are meritless. (Doc. No. 18). Respondent additionally argues that the Petition 23 should be dismissed because the Court lacks jurisdiction. (Id.at 3). Petitioner replied that his 24 motion to stay should be granted because his claims are not meritless and this Court has 25 jurisdiction, he has shown good cause for granting a stay, he has not engaged in dilatory litigation 26 tactics, and he has acquired “new evidence” to support the grounds for relief in his Petition. 27 (Doc. No. 19). 28 1 APPLICABLE LAW AND ANALYSIS 2 A. Preliminary Review of Petition 3 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 4 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 5 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 6 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 7 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 8 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 9 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 10 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 11 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 12 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 13 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 14 B. Motion to Stay 15 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has 16 exhausted the remedies available in state court. To satisfy the exhaustion requirement, petitioner 17 must provide the highest state court with a full and fair opportunity to consider each claim before 18 presenting it to the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan 19 v. Henry, 513 U.S. 364, 365 (1995). The U.S. Supreme Court has held that a district court may 20 not adjudicate a federal habeas corpus petition unless the petitioner has exhausted state remedies 21 on each of the claims raised in the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). 22 However, under Rhines v. Weber, a court may stay all the claims in a petition while the 23 petitioner returns to the state courts to exhaust his already pled but unexhausted claims. Rhines v. 24 Weber, 544 U.S. 269, 277-78 (2005). A stay and abeyance “should be available only in limited 25 circumstances” because issuing a stay “undermines AEDPA’s goal of streamlining federal habeas 26 proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to 27 filing his federal petition.” Id. Under Rhines, a stay and abeyance for a mixed petition, a petition 28 that contains both exhausted and unexhausted claims, is available only where: (1) there is “good 1 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 2 the petitioner did not intentionally engage in dilatory litigation tactics. Id. 3 Here, even assuming arguendo that Petitioner has shown good cause for his conceded 4 failure to exhaust his claims, and has not intentionally engaged in dilatory litigation tactics, he 5 does not meet the Rhines requirements because his unexhausted claims are plainly meritless. “A 6 federal habeas petitioner must establish that at least one of his unexhausted claims is not ‘plainly 7 meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 8 2017).
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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 ALFRED R. SOSA, Case No. 1:21-cv-01094-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S MOTION TO STAY, 13 v. DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS, AND DECLINE TO 14 WARDEN OF CORCORAN STATE ISSUE A CERTIFICATE OF PRISON, APPEALABILITY1 15 Respondent. FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. Nos. 5, 8) 17 ORDER DIRECTING CLERK OF COURT TO 18 ASSIGN CASE TO DISTRICT JUDGE 19 20 Petitioner Alfred R. Sosa, a state prisoner proceeding pro se, seeks a writ of habeas corpus 21 under 28 U.S.C. § 2254. (Doc. No. 5, “Petition”). Before the Court is Petitioner’s motion for a 22 stay and abeyance under Rhines.2 (Doc. No. 8); Rhines v. Weber, 544 U.S. 269 (2005). The 23 Court ordered Respondent to respond to the motion to stay. (Doc. No. 16). Respondent filed an 24 opposition to Petitioner’s motion to stay (Doc. No. 18), and Petitioner filed a reply (Doc. No. 19). 25 For the reasons set forth more fully below, the undersigned recommends denying Petitioner’s 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Cal. 2022). 2 While not initially specified in his motion to stay, Petitioner specifically argued he was entitled to a stay 28 under Rhines in his reply brief. (Doc. No. 19). 1 motion to stay and dismissing the Petition for lack of federal habeas jurisdiction. 2 BACKGROUND 3 Petitioner commenced this action in the Northern District of California by filing a letter 4 seeking “Clarification Habeas Corpus” and was directed to file a completed petition on the 5 approved form. (Doc. Nos. 1, 2). After Petitioner filed his Petition, the Northern District 6 transferred the case to this Court noting Petitioner was challenging a disciplinary proceeding and 7 the loss of good time credits. (Doc. Nos. 5, 13). The Petition challenges a disciplinary 8 conviction of attempted murder with a STG nexus that resulted in a loss of 360 days of credits. 9 (Doc. No. 5 at 2, 55). The Petition raises the following grounds for relief: (1) Petitioner’s 10 disciplinary finding of guilt should be vacated because it violates the Ashker Agreement; and (2) 11 the disciplinary finding of guilt should be vacated because it is based on insufficient evidence. 12 (Id. at 7-10). Petitioner also submitted a third conclusory claim that based on the “foregoing” two 13 grounds for relief, his federal due process rights were violated. (Id. at 11). Petitioner is serving 14 an indeterminate life sentence for murder. (Doc. No. 5 at 1-2). 15 On July 8, 2021, the same day Petitioner filed his Petition in the Northern District of 16 California, he simultaneously filed the instant motion to stay and hold his Petition in abeyance so 17 he could exhaust his claims. (Doc. No. 8). Petitioner concedes his claims have not been 18 exhausted because he “mistakenly believed that since his claims relate to a breach of the Ashker 19 Agreement he can seek judicial relief directly through this Court,” and asks the Court to stay the 20 Petition as he “intends to present such claims to the state court.” (Doc. No. 8). Respondent 21 argues the motion to stay should be denied because he failed to show good cause for granting the 22 stay and his claims are meritless. (Doc. No. 18). Respondent additionally argues that the Petition 23 should be dismissed because the Court lacks jurisdiction. (Id.at 3). Petitioner replied that his 24 motion to stay should be granted because his claims are not meritless and this Court has 25 jurisdiction, he has shown good cause for granting a stay, he has not engaged in dilatory litigation 26 tactics, and he has acquired “new evidence” to support the grounds for relief in his Petition. 27 (Doc. No. 19). 28 1 APPLICABLE LAW AND ANALYSIS 2 A. Preliminary Review of Petition 3 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 4 review of each petition for writ of habeas corpus. The Court must dismiss a petition “[i]f it 5 plainly appears from the petition . . . that the petitioner is not entitled to relief.” Rule 4 of the 6 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 7 The Advisory Committee Notes to Rule 8 indicate that the Court may dismiss a petition for writ 8 of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to 9 dismiss, or after an answer to the petition has been filed. Courts have “an active role in 10 summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. Williams, 896 11 F.3d 958, 968 (9th Cir. 2018) (citation omitted). However, a petition for habeas corpus should 12 not be dismissed without leave to amend unless it appears that no tenable claim for relief can be 13 pleaded were such leave granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 14 B. Motion to Stay 15 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has 16 exhausted the remedies available in state court. To satisfy the exhaustion requirement, petitioner 17 must provide the highest state court with a full and fair opportunity to consider each claim before 18 presenting it to the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan 19 v. Henry, 513 U.S. 364, 365 (1995). The U.S. Supreme Court has held that a district court may 20 not adjudicate a federal habeas corpus petition unless the petitioner has exhausted state remedies 21 on each of the claims raised in the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). 22 However, under Rhines v. Weber, a court may stay all the claims in a petition while the 23 petitioner returns to the state courts to exhaust his already pled but unexhausted claims. Rhines v. 24 Weber, 544 U.S. 269, 277-78 (2005). A stay and abeyance “should be available only in limited 25 circumstances” because issuing a stay “undermines AEDPA’s goal of streamlining federal habeas 26 proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to 27 filing his federal petition.” Id. Under Rhines, a stay and abeyance for a mixed petition, a petition 28 that contains both exhausted and unexhausted claims, is available only where: (1) there is “good 1 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 2 the petitioner did not intentionally engage in dilatory litigation tactics. Id. 3 Here, even assuming arguendo that Petitioner has shown good cause for his conceded 4 failure to exhaust his claims, and has not intentionally engaged in dilatory litigation tactics, he 5 does not meet the Rhines requirements because his unexhausted claims are plainly meritless. “A 6 federal habeas petitioner must establish that at least one of his unexhausted claims is not ‘plainly 7 meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 8 2017). “In determining whether a claim is ‘plainly meritless,’ principles of comity and federalism 9 demand that the federal court refrain from ruling on the merits of the claim unless ‘it is perfectly 10 clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 406 F.3d 11 614, 624 (9th Cir. 2005)). 12 Petitioner claims the disciplinary “finding of guilt” should be “vacated” because it violates 13 the Ashker Agreement and is based on insufficient evidence, thereby violating his due process 14 rights. (Doc. No. 5-1 at 1-11). Respondent contends the Court lacks federal habeas jurisdiction 15 over the challenge to a disciplinary decision because the Petition does not necessarily challenge 16 the fact or duration of Petitioner’s sentence. Specifically, Respondent argues that because 17 Petitioner is serving an indeterminate life sentence relief, even if granted, on his claims would not 18 necessarily result in a change to his quantum of custody. (Doc. No. 18 at 3-4). The Court agrees. 19 “The habeas statute unambiguously provides that a federal court may issue a writ of 20 habeas corpus to a state prisoner ‘only on the ground that he is in custody in violation of the 21 Constitution or laws or treaties of the United States.’” Wilson v. Corcoran, 562 U.S. 1, 5 (2010) 22 (per curiam) (quoting 28 U.S.C. § 2254(a)). If a prisoner’s claim “would necessarily demonstrate 23 the invalidity of confinement or its duration,” a habeas petition is the appropriate avenue for the 24 claim. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). In Nettles v. Grounds, 830 F.3d 922, 935 25 (9th Cir. 2016), the Ninth Circuit held that the district court lacked habeas jurisdiction over the 26 discipline-related claim of a California inmate serving an indeterminate life sentence, because 27 success on the merits of the petitioner’s claim “would not necessarily lead to immediate or 28 speedier release because the expungement of the challenged disciplinary violation would not 1 necessarily lead to a grant of parole.” Nettles, 830 F.3d at 934-35. Further, “[b]ecause success on 2 Nettles’s claims would not necessarily lead to his immediate or earlier release from confinement, 3 [his] claim does not fall within ‘the core of habeas corpus’ and he must instead bring his claim 4 under § 1983.” Id. at 935. 5 Here, as in Nettles, Petitioner is an indeterminately sentenced prisoner challenging a 6 disciplinary finding. Thus, even assuming that success on Petitioner’s claims would render him 7 eligible for parole consideration, it would not necessarily lead to a grant of parole because under 8 California law the parole board must consider all relevant reliable information in determining 9 suitability for parole, and “has the authority to deny parole on the basis of any grounds presently 10 available to it.” Nettles, 830 F.3d at 935 (citing Ramirez v. Galaza, 334 F.3d 850, 859 (9th Cir. 11 2003)). Because success on Petitioner’s claim would not necessarily lead to his immediate or 12 earlier release from confinement, the claim does not fall within “the core of habeas corpus,” and 13 is not cognizable in federal habeas corpus. See id.; see also Harris v. Peery, 2022 WL 2373737, 14 at *3 (E.D. Cal. June 30, 2022) (no federal habeas jurisdiction with respect to indeterminately 15 sentenced petitioner’s challenge to disciplinary decision); Moreno v. Eaton, 2021 WL 1388297 16 (E.D. Cal. Apr. 13, 2021) (same). 17 When, as here, the claim to be exhausted is not cognizable on federal habeas or plainly 18 meritless, “a stay should not be granted under Rhines or Kelly because a stay would be futile.” 19 (Doc. No. 12 at 7); see Gonzales v. Pfeffer, 2020 WL 5520597, at *4-5 (C.D. Cal. Aug. 6, 2020) 20 (finding Petitioner was not entitled to a stay under Rhines or Kelly because his claim concerning 21 denial of his petition for resentencing was noncognizable on federal habeas review); Montes v. 22 Frauenhiem, 2020 WL 2139334, at *2 (C.D. Cal. 2020) (finding a stay under Kelly or Rhines 23 would be futile because the claim in question was not cognizable, and specifically noting that 24 petitioner’s attempt to frame his state law sentencing claim as “one involving a violation of his 25 federal constitutional right to due process” did not render the claim cognizable); Bell v. Arnold, 26 2017 WL 4174402, at *3 (C.D. Cal Aug. 31, 2017) (“Obviously, there is no reason for a court to 27 exercise its discretion to stay an action if the claim for which the stay is sought is not cognizable 28 1 or is plainly meritless, as such a stay would be a fruitless and time-wasting event.”) Accordingly, 2 the undersigned recommends Petitioner’s motion for a stay be denied. 3 Further, as the unexhausted claims are not cognizable on federal habeas review, the 4 undersigned recommends the Petition be dismissed for lack of federal habeas jurisdiction. 5 III. CERTIFICATE OF APPEALABILITY 6 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 7 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 8 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 9 district court to issue or deny a certificate of appealability when entering a final order adverse to a 10 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 11 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 12 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 13 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 14 his constitutional claims or that jurists could conclude the issues presented are adequate to 15 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 16 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 17 denial of a constitutional right. Thus, the undersigned recommends that the court decline to issue 18 a certificate of appealability. 19 Accordingly, it is ORDERED: 20 The clerk of court is directed to assign this case to a district judge for the purposes of 21 reviewing these findings and recommendations. 22 It is further RECOMMENDED: 23 1. Petitioner’s motion to stay (Doc. No. 8) be DENIED. 24 2. The Petition (Doc. No. 5) be DISMISSED for lack for lack of federal habeas 25 jurisdiction. 26 3. Petitioner be denied a certificate of appealability. 27 //// 28 //// 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, a party may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 Dated: _ November 21, 2022 Wile. Th fares Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE
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