1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HILEBERTO VALTIERRA, Case No. 1:24-cv-00778-HBK (HC) 12 Petitioner, ORDER FOR CLARIFICATION REGARDING MIXED PETITION1 13 v. (Doc. No. 1, 4) 14 STEVE SMITH, 15 Respondent. 16 17 18 19 Petitioner Hileberto Valtierra (“Petitioner”), a state prisoner proceeding pro se, has 20 pending a petition for writ of habeas corpus under 28 U.S.C. § 2254 that was docketed on July 3, 21 2024. (Doc. No. 1, “Petition”). Petitioner accompanied his Petition with a “motion to request for 22 stay and abeyance of mixed federal habeas petition.” (Doc. No. 4, “Motion”). On August 21, 23 2024, Respondent filed an response to the Motion stating opposition to a Rhines stay and non- 24 opposition to a Kelly stay. Petitioner filed a reply requesting a stay under Rhines, or in the 25 alternative, an opportunity to dismiss the entire Petition without prejudice in order for him to fully 26 exhaust his unexhausted claims and re-file a fully exhausted Petition. (Doc. No. 16). 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 For the reasons set forth more fully below, the Court orders clarification from Petitioner as 2 to how he wishes to proceed with his mixed petition at this time. 3 APPLICABLE LAW AND ANALYSIS 4 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 5 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 6 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 7 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 8 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 9 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 10 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the 11 highest state court with a full and fair opportunity to consider each claim before presenting it to 12 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 13 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 14 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 15 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 16 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 17 shows that “there is an absence of available State corrective process” or “circumstances exist that 18 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 19 2254(b)(1)(B)(i)-(ii). 20 Petitioner raises twelve claims in his Petition. (Doc. No. 1). He notes the following 21 grounds for relief are fully exhausted: (1) violation of Petitioner’s constitutional right to public 22 trial; (2) violation of his constitutional right to self-representation; (3) violation of his 23 constitutional right to confrontation; and (4) violation of his constitutional right to “effective 24 cross-examination” because certain evidence was excluded at trial. (Id. at 7-13). However, 25 Petitioner acknowledges that the following grounds for relief are not exhausted, and indicates he 26 has pending a petition for writ of habeas corpus in state court in order to fully exhaust these 27 claims of: (5) actual innocence; (6) Brady violation as prosecution failed to disclose exculpatory 28 evidence; (7) ineffective assistance of trial counsel; (8) prosecutorial misconduct during closing 1 arguments; (9) trial court error in allowing jury to view “extrinsic evidence” during deliberations; 2 (10) trial court failure to instruct jury on affirmative defense of “unconsciousness”; (11) trial 3 court failure to instruct jury on “involuntary manslaughter”; and (12) denial of access to 4 discovery materials in order to prepare post-conviction petitions. (Id. at 14-22). 5 Federal courts cannot consider petitions that contain both exhausted and unexhausted 6 claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) 7 (holding a district court must dismiss a federal habeas petition containing both unexhausted and 8 exhausted claims). The filing of a mixed petition renders it subject to dismissal on its face. Id. at 9 519. To remedy this problem, a petitioner may, at his option, withdraw the unexhausted claims 10 and go forward only with the exhausted claims. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 11 2000) (“district courts must provide habeas litigants with the opportunity to amend their mixed 12 petitions by striking unexhausted claims as an alternative to suffering dismissal.”). Alternatively 13 under certain circumstances and as long as adequately supported, a petitioner may seek leave to 14 amend or to seek a stay and abeyance of the federal habeas action while the petitioner exhausts 15 any unexhausted claims in state court. See Dixon v. Baker, 847 F.3d 714, at 719 (9th Cir. 2017) 16 (“we have repeatedly warned the district courts that they ‘may not dismiss a mixed petition 17 without giving the petitioner the opportunity to delete the unexhausted claims .... This warning is 18 compelled by the fact that, unless either a stay of the habeas proceedings or leave to delete the 19 unexhausted claims is granted, a federal habeas petitioner will lose the opportunity to have his 20 properly exhausted federal claims heard in federal court simply because they were submitted in a 21 mixed petition.”). 22 Two procedures are available to federal habeas petitioners who wish to proceed with 23 exhausted and unexhausted claims for relief: one provided for by Rhines v. Weber, 544 U.S. 269 24 (2005), and the other by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). While Respondent did not 25 oppose a stay under Kelly, Petitioner has indicated he wishes to pursue a stay under Rhines. 26 (Doc. No. 16). Under Rhines, stay and abeyance is appropriate if “the petitioner had good cause 27 for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no 28 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. 1 at 278; Bolin v. Baker, 994 F.3d 1154, 1156 (9th Cir. 2021).
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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 HILEBERTO VALTIERRA, Case No. 1:24-cv-00778-HBK (HC) 12 Petitioner, ORDER FOR CLARIFICATION REGARDING MIXED PETITION1 13 v. (Doc. No. 1, 4) 14 STEVE SMITH, 15 Respondent. 16 17 18 19 Petitioner Hileberto Valtierra (“Petitioner”), a state prisoner proceeding pro se, has 20 pending a petition for writ of habeas corpus under 28 U.S.C. § 2254 that was docketed on July 3, 21 2024. (Doc. No. 1, “Petition”). Petitioner accompanied his Petition with a “motion to request for 22 stay and abeyance of mixed federal habeas petition.” (Doc. No. 4, “Motion”). On August 21, 23 2024, Respondent filed an response to the Motion stating opposition to a Rhines stay and non- 24 opposition to a Kelly stay. Petitioner filed a reply requesting a stay under Rhines, or in the 25 alternative, an opportunity to dismiss the entire Petition without prejudice in order for him to fully 26 exhaust his unexhausted claims and re-file a fully exhausted Petition. (Doc. No. 16). 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 For the reasons set forth more fully below, the Court orders clarification from Petitioner as 2 to how he wishes to proceed with his mixed petition at this time. 3 APPLICABLE LAW AND ANALYSIS 4 A petitioner in state custody who wishes to proceed on a federal petition for a writ of 5 habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). Exhaustion is a 6 “threshold” matter that must be satisfied before the court can consider the merits of each claim. 7 Day v. McDonough, 547 U.S. 198, 205 (2006). The exhaustion doctrine is not a jurisdictional 8 issue but is based on comity to permit the state court the initial opportunity to resolve any alleged 9 constitutional deprivations. See Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 10 455 U.S. 509, 518 (1982). To satisfy the exhaustion requirement, petitioner must provide the 11 highest state court with a full and fair opportunity to consider each claim before presenting it to 12 the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 13 U.S. 364, 365 (1995). Exhaustion is determined on a claim-by-claim basis. Insyxieng-May v. 14 Morgan, 403 F.3d 657, 667 (9th Cir. 2005). And the burden of proving exhaustion rests with the 15 petitioner. Darr v. Burford, 339 U.S. 200, 218 (1950) (overruled in part on other grounds by Fay 16 v. Noia, 372 U.S. 391 (1963)). A failure to exhaust may only be excused where the petitioner 17 shows that “there is an absence of available State corrective process” or “circumstances exist that 18 render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 19 2254(b)(1)(B)(i)-(ii). 20 Petitioner raises twelve claims in his Petition. (Doc. No. 1). He notes the following 21 grounds for relief are fully exhausted: (1) violation of Petitioner’s constitutional right to public 22 trial; (2) violation of his constitutional right to self-representation; (3) violation of his 23 constitutional right to confrontation; and (4) violation of his constitutional right to “effective 24 cross-examination” because certain evidence was excluded at trial. (Id. at 7-13). However, 25 Petitioner acknowledges that the following grounds for relief are not exhausted, and indicates he 26 has pending a petition for writ of habeas corpus in state court in order to fully exhaust these 27 claims of: (5) actual innocence; (6) Brady violation as prosecution failed to disclose exculpatory 28 evidence; (7) ineffective assistance of trial counsel; (8) prosecutorial misconduct during closing 1 arguments; (9) trial court error in allowing jury to view “extrinsic evidence” during deliberations; 2 (10) trial court failure to instruct jury on affirmative defense of “unconsciousness”; (11) trial 3 court failure to instruct jury on “involuntary manslaughter”; and (12) denial of access to 4 discovery materials in order to prepare post-conviction petitions. (Id. at 14-22). 5 Federal courts cannot consider petitions that contain both exhausted and unexhausted 6 claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) 7 (holding a district court must dismiss a federal habeas petition containing both unexhausted and 8 exhausted claims). The filing of a mixed petition renders it subject to dismissal on its face. Id. at 9 519. To remedy this problem, a petitioner may, at his option, withdraw the unexhausted claims 10 and go forward only with the exhausted claims. Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 11 2000) (“district courts must provide habeas litigants with the opportunity to amend their mixed 12 petitions by striking unexhausted claims as an alternative to suffering dismissal.”). Alternatively 13 under certain circumstances and as long as adequately supported, a petitioner may seek leave to 14 amend or to seek a stay and abeyance of the federal habeas action while the petitioner exhausts 15 any unexhausted claims in state court. See Dixon v. Baker, 847 F.3d 714, at 719 (9th Cir. 2017) 16 (“we have repeatedly warned the district courts that they ‘may not dismiss a mixed petition 17 without giving the petitioner the opportunity to delete the unexhausted claims .... This warning is 18 compelled by the fact that, unless either a stay of the habeas proceedings or leave to delete the 19 unexhausted claims is granted, a federal habeas petitioner will lose the opportunity to have his 20 properly exhausted federal claims heard in federal court simply because they were submitted in a 21 mixed petition.”). 22 Two procedures are available to federal habeas petitioners who wish to proceed with 23 exhausted and unexhausted claims for relief: one provided for by Rhines v. Weber, 544 U.S. 269 24 (2005), and the other by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). While Respondent did not 25 oppose a stay under Kelly, Petitioner has indicated he wishes to pursue a stay under Rhines. 26 (Doc. No. 16). Under Rhines, stay and abeyance is appropriate if “the petitioner had good cause 27 for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no 28 indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. 1 at 278; Bolin v. Baker, 994 F.3d 1154, 1156 (9th Cir. 2021). Respondent argues Petitioner fails to 2 provide any argument or evidence for not having exhausted grounds five through twelve in state 3 court, and therefore has not provided the requisite good cause for his failure to exhaust under 4 Rhines. (Doc. No. 9 at 3-4) (citing Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014) (“While a 5 bald assertion cannot amount to a showing of good cause, a reasonable excuse, supported by 6 evidence to justify a petitioner’s failure to exhaust, will.”)). 7 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 8 exhaust.” Blake, 745 F.3d at 980. Although good cause under Rhines does not require a showing 9 of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005), 10 “unspecific, unsupported excuses for failing to exhaust—such as unjustified ignorance—[do] not 11 satisfy the good cause requirement,” Blake, 745 F.3d at 981. Rather, “good cause turns on 12 whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to 13 justify” his failure to exhaust his claims. Id. at 982. “An assertion of good cause without 14 evidentiary support will not typically amount to a reasonable excuse justifying a petitioner’s 15 failure to exhaust.” Id. Sister courts within our circuit have required, at a minimum, a showing 16 of some “circumstance over which [a petitioner] had little or no control” that prevented him from 17 asserting the unexhausted claim in state court. Riner v. Crawford, 415 F. Supp. 2d 1207, 1211 18 (E.D. Nev. 2006); see Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005) 19 (adopting the “good cause” standard of procedural defaults in which “a petitioner ordinarily must 20 show that the default resulted from an objective factor external to the petitioner which cannot 21 fairly be attributed to him”). 22 In his reply, Petitioner generally asserts that he “was not in possession of evidence 23 pertaining to the claims until a later time and only learned and/or discovered these claims while 24 investigating the others.” (Doc. No. 16 at 3). However, as noted by Respondent, Petitioner states 25 in the Petition that appellate counsel informed him he would need to file a state habeas petition to 26 pursue grounds five through twelve either because they were outside the record or because his 27 appellate attorney “chose not to raise them” on direct appeal. (See Doc. No. 1 at 14-21). Thus, 28 upon cursory review, the Court is inclined to agree with Respondent that Petitioner does not 1 | establish good cause for failing to exhaust claims five through twelve, as required to grant a stay 2 | under Rhines. 3 Also in his reply, Petitioner asks the Court to consider, in the alternative to a Rhines stay, 4 | a voluntary dismissal of the Petition without prejudice so he may re-file the entire petition after 5 | all his claims are exhausted. (Doc. No. 16 at 3). Petitioner calculates “roughly 11 months 6 | remaining on his AEDPA time clock.” (/d. at 2). The Court makes no comment as to whether 7 | this estimate is correct, and cautions Petitioner that while the AEDPA limitations period is tolled 8 | while Petitioner has a pending state habeas petition raising the unexhausted claims, the limitations 9 | period is not tolled during the time in which his Petition or any other federal habeas petition has 10 | been pending in this Court. See Duncan v. Walker, 533 U.S. 167, 181-82 (2000). Finally, the 11 | Court notes that were Petitioner to voluntarily dismiss the entire Petition, his filing of a new 12 | petition after fully exhausting his claims would not be considered second or successive. See 13 | Slack v. McDaniel, 529 U.S. 473, 487 (2000). 14 In light of the foregoing, the Court seeks clarification from Petitioner on how he wishes to 15 | proceed on the alternative requests presented in his reply brief. 16 Accordingly, it is ORDERED: 17 1. Petitioner must file a Notice as to whether he wishes to (1) proceed with his 18 | request for a Rhines stay, at which point the undersigned with enter Findings and 19 | Recommendations as discussed above, or (2) voluntarily dismiss his entire petition without 20 | prejudice to refiling once his claims are exhausted. Petitioner must deliver this Notice to 21 | correctional officials for mailing no later than December 3, 2024. 22 2. Petitioner is forewarned that failure to follow this order will result in a 23 | recommendation for dismissal of the petition as a mixed petition and/or for failure to prosecute or 24 | comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). 25 *© | Dated: _ November 12, 2024 Mihaw. □□ fares Back 27 HELENA M. BARCH-KUCHTA 38 UNITED STATES MAGISTRATE JUDGE