1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL M. GARZA, No. 1:23-cv-01723-JLT-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY 13 v. [Doc. 38] 14 TAMMY CAMPBELL, Warden, [21-DAY OBJECTION DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in forma pauperis with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner’s motion to 19 stay the proceedings in this action under Rhines v. Weber, 544 U.S. 269, 277 (2005). For reasons 20 that follow, the Court will recommend that Petitioner’s motion for stay be DENIED. 21 I. PROCEDURAL BACKGROUND 22 On January 12, 2018, a Kings County jury found Petitioner guilty of 14 felonies involving 23 molestation of his young daughter over a three-year period. (Doc. 34-47 at 1-6.) Petitioner was 24 sentenced to an indeterminate prison term of 55 years to life for committing sodomy on a child 25 under 10 years old, and he was sentenced to a determinate term of 127 years and six months for 26 the remaining sex offenses. On January 26, 2023, the California Court of Appeal modified the 27 determinate sentence to 88 years and eight months and affirmed the judgment. (Doc. 34-46.) 28 Petitioner then petitioned for review in the California Supreme Court. (Doc. 34-48.) On 1 April 12, 2023, the California Supreme Court summarily denied review. (Doc. 34-49.) Petitioner 2 filed a habeas petition in the California Court of Appeal on August 16, 2023. (Doc. 34-50.) The 3 petition was denied on October 26, 2023. (Doc. 34-51.) 4 On December 15, 2023, Petitioner filed a petition for writ of habeas corpus in this Court. 5 (Doc. 1.) Respondent filed an answer on August 19, 2024. (Doc. 35.) The deadline for Petitioner 6 to file a traverse was set for September 18, 2024. (Doc. 30.) Petitioner requested an extension of 7 time to file his traverse. (Doc. 36.) On September 12, 2024, the Court granted Petitioner an 8 extension to and including October 18, 2024, to file a traverse. (Doc. 37.) On October 7, 2024, 9 Petitioner filed a motion requesting a stay and abeyance to exhaust state remedies in lieu of filing 10 a traverse. (Doc. 38.) Respondent failed to file an opposition or statement of non-opposition to the 11 motion. 12 II. DISCUSSION 13 Petitioner requests that the petition be stayed and held in abeyance pursuant to Rhines v. 14 Weber, 544 U.S. 269 (2005). A district court has discretion to stay and allow a petitioner to return 15 to state court to exhaust state remedies. Rhines, 544 U.S. at 277. However, the Supreme Court 16 has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty 17 Act of 1996 (AEDPA). Id. In light of AEDPA’s objectives, “stay and abeyance [is] available 18 only in limited circumstances.” Id. at 277. Specifically, the Court said a stay is appropriate only 19 when (1) good cause exists for petitioner’s failure to exhaust; (2) petitioner’s unexhausted claims 20 are not “plainly meritless” and (3) there is no indication that petitioner engaged in “abusive 21 litigation tactics or intentional delay.” Id. at 277-278; Robbins v. Carey, 481 F.3d 1143, 1149 22 (9th Cir. 2005). When a petitioner has met these requirements, his interest in obtaining federal 23 review of his claims outweighs the competing interests in finality and speedy resolution of federal 24 petitions. Rhines, 544 U.S. at 278. 25 The Court does not find good cause for Petitioner’s failure to exhaust. Petitioner states he 26 is seeking to introduce evidence that was not presented to the state courts on direct or collateral 27 review because they are new exhibits being introduced to rebut a point or argument that was 28 raised by Respondent for the first time in this habeas action. However, Petitioner does not state 1 what argument or point raised by Respondent merits rebuttal with this new evidence. After 2 reviewing Petitioner’s submission, the Court finds little relevance and no value to the evidence. 3 Although Petitioner contends it purports to show actual innocence because he had a viable alibi 4 defense to count 15 (Rape with bodily injury), he does not contest count 15 in any of his grounds 5 for relief, nor did he raise a claim of actual innocence. To the extent Petitioner now seeks to 6 claim innocence of count 15, the claim is untimely. See 28 U.S.C. § 2241(d)(1). 7 Moreover, the evidence does not show actual innocence or provide an alibi defense. In 8 count 15, Petitioner was convicted of raping his young daughter on or about December 3, 2014. 9 (Doc. 34-1 at 278.) Petitioner’s purported alibi evidence reflects that Petitioner was arrested and 10 taken into custody on December 3, 2014, at 11:46 p.m. for alleged spousal abuse. (Doc. 38 at 14.) 11 Petitioner’s contention that his arrest fourteen minutes before the end of that day somehow 12 demonstrates he could not have committed the alleged rape in the 23 hours and 46 minutes before 13 his arrest is frivolous. 14 Petitioner contends that the evidence further shows that the children were not home at the 15 relevant time but staying with their grandmother. The school attendance record, however, shows 16 that the children were absent the following day - December 4, 2024 - due to an emergency. (Doc. 17 38 at 21.) The record shows the absence was reported by the mother with a notation of their out- 18 of-town grandmother. (Doc. 38 at 21.) This does not show that the children were not at home on 19 December 3, 2024. In fact, the evidence shows the opposite as the attendance record reflects the 20 children were in attendance on December 3, 2024, and not absent as Petitioner contends. The 21 evidence is therefore consistent with the timeline of events alleged and provides no basis for 22 Petitioner’s alleged alibi defense. 23 Second, the evidence is not newly discovered as it was clearly available at the time of 24 trial. Petitioner contends that trial counsel failed to present the evidence as part of an alibi 25 defense, but Petitioner unjustifiably failed to make any such claim until now. The claim could 26 have been presented on direct appeal or via habeas petition prior to filing his federal petition. In 27 any event, as previously discussed, the evidence was immaterial. There is no question defense 28 counsel was not unreasonable in failing to present the evidence in support of an alibi defense. 1 In summary, Petitioner fails to show good cause for his delay in presenting his claim, and 2 any unexhausted claims of actual innocence or ineffective assistance of counsel based on this 3 evidence are plainly without merit. 4 III. RECOMMENDATION 5 Based on the foregoing, the Court RECOMMENDS that Petitioner’s motion for stay be 6 DENIED. This Findings and Recommendation is submitted to the United States District Court 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 8 of the Local Rules of Practice for the United States District Court, Eastern District of California. 9 Within twenty-one (21) days after being served with a copy of this Findings and 10 Recommendation, a party may file written objections with the Court and serve a copy on all 11 parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good 13 cause shown.
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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 ANGEL M. GARZA, No. 1:23-cv-01723-JLT-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY 13 v. [Doc. 38] 14 TAMMY CAMPBELL, Warden, [21-DAY OBJECTION DEADLINE] 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in forma pauperis with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner’s motion to 19 stay the proceedings in this action under Rhines v. Weber, 544 U.S. 269, 277 (2005). For reasons 20 that follow, the Court will recommend that Petitioner’s motion for stay be DENIED. 21 I. PROCEDURAL BACKGROUND 22 On January 12, 2018, a Kings County jury found Petitioner guilty of 14 felonies involving 23 molestation of his young daughter over a three-year period. (Doc. 34-47 at 1-6.) Petitioner was 24 sentenced to an indeterminate prison term of 55 years to life for committing sodomy on a child 25 under 10 years old, and he was sentenced to a determinate term of 127 years and six months for 26 the remaining sex offenses. On January 26, 2023, the California Court of Appeal modified the 27 determinate sentence to 88 years and eight months and affirmed the judgment. (Doc. 34-46.) 28 Petitioner then petitioned for review in the California Supreme Court. (Doc. 34-48.) On 1 April 12, 2023, the California Supreme Court summarily denied review. (Doc. 34-49.) Petitioner 2 filed a habeas petition in the California Court of Appeal on August 16, 2023. (Doc. 34-50.) The 3 petition was denied on October 26, 2023. (Doc. 34-51.) 4 On December 15, 2023, Petitioner filed a petition for writ of habeas corpus in this Court. 5 (Doc. 1.) Respondent filed an answer on August 19, 2024. (Doc. 35.) The deadline for Petitioner 6 to file a traverse was set for September 18, 2024. (Doc. 30.) Petitioner requested an extension of 7 time to file his traverse. (Doc. 36.) On September 12, 2024, the Court granted Petitioner an 8 extension to and including October 18, 2024, to file a traverse. (Doc. 37.) On October 7, 2024, 9 Petitioner filed a motion requesting a stay and abeyance to exhaust state remedies in lieu of filing 10 a traverse. (Doc. 38.) Respondent failed to file an opposition or statement of non-opposition to the 11 motion. 12 II. DISCUSSION 13 Petitioner requests that the petition be stayed and held in abeyance pursuant to Rhines v. 14 Weber, 544 U.S. 269 (2005). A district court has discretion to stay and allow a petitioner to return 15 to state court to exhaust state remedies. Rhines, 544 U.S. at 277. However, the Supreme Court 16 has held that this discretion is circumscribed by the Antiterrorism and Effective Death Penalty 17 Act of 1996 (AEDPA). Id. In light of AEDPA’s objectives, “stay and abeyance [is] available 18 only in limited circumstances.” Id. at 277. Specifically, the Court said a stay is appropriate only 19 when (1) good cause exists for petitioner’s failure to exhaust; (2) petitioner’s unexhausted claims 20 are not “plainly meritless” and (3) there is no indication that petitioner engaged in “abusive 21 litigation tactics or intentional delay.” Id. at 277-278; Robbins v. Carey, 481 F.3d 1143, 1149 22 (9th Cir. 2005). When a petitioner has met these requirements, his interest in obtaining federal 23 review of his claims outweighs the competing interests in finality and speedy resolution of federal 24 petitions. Rhines, 544 U.S. at 278. 25 The Court does not find good cause for Petitioner’s failure to exhaust. Petitioner states he 26 is seeking to introduce evidence that was not presented to the state courts on direct or collateral 27 review because they are new exhibits being introduced to rebut a point or argument that was 28 raised by Respondent for the first time in this habeas action. However, Petitioner does not state 1 what argument or point raised by Respondent merits rebuttal with this new evidence. After 2 reviewing Petitioner’s submission, the Court finds little relevance and no value to the evidence. 3 Although Petitioner contends it purports to show actual innocence because he had a viable alibi 4 defense to count 15 (Rape with bodily injury), he does not contest count 15 in any of his grounds 5 for relief, nor did he raise a claim of actual innocence. To the extent Petitioner now seeks to 6 claim innocence of count 15, the claim is untimely. See 28 U.S.C. § 2241(d)(1). 7 Moreover, the evidence does not show actual innocence or provide an alibi defense. In 8 count 15, Petitioner was convicted of raping his young daughter on or about December 3, 2014. 9 (Doc. 34-1 at 278.) Petitioner’s purported alibi evidence reflects that Petitioner was arrested and 10 taken into custody on December 3, 2014, at 11:46 p.m. for alleged spousal abuse. (Doc. 38 at 14.) 11 Petitioner’s contention that his arrest fourteen minutes before the end of that day somehow 12 demonstrates he could not have committed the alleged rape in the 23 hours and 46 minutes before 13 his arrest is frivolous. 14 Petitioner contends that the evidence further shows that the children were not home at the 15 relevant time but staying with their grandmother. The school attendance record, however, shows 16 that the children were absent the following day - December 4, 2024 - due to an emergency. (Doc. 17 38 at 21.) The record shows the absence was reported by the mother with a notation of their out- 18 of-town grandmother. (Doc. 38 at 21.) This does not show that the children were not at home on 19 December 3, 2024. In fact, the evidence shows the opposite as the attendance record reflects the 20 children were in attendance on December 3, 2024, and not absent as Petitioner contends. The 21 evidence is therefore consistent with the timeline of events alleged and provides no basis for 22 Petitioner’s alleged alibi defense. 23 Second, the evidence is not newly discovered as it was clearly available at the time of 24 trial. Petitioner contends that trial counsel failed to present the evidence as part of an alibi 25 defense, but Petitioner unjustifiably failed to make any such claim until now. The claim could 26 have been presented on direct appeal or via habeas petition prior to filing his federal petition. In 27 any event, as previously discussed, the evidence was immaterial. There is no question defense 28 counsel was not unreasonable in failing to present the evidence in support of an alibi defense. 1 In summary, Petitioner fails to show good cause for his delay in presenting his claim, and 2 any unexhausted claims of actual innocence or ineffective assistance of counsel based on this 3 evidence are plainly without merit. 4 III. RECOMMENDATION 5 Based on the foregoing, the Court RECOMMENDS that Petitioner’s motion for stay be 6 DENIED. This Findings and Recommendation is submitted to the United States District Court 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 8 of the Local Rules of Practice for the United States District Court, Eastern District of California. 9 Within twenty-one (21) days after being served with a copy of this Findings and 10 Recommendation, a party may file written objections with the Court and serve a copy on all 11 parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and 12 Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good 13 cause shown. The Court will not consider exhibits attached to the Objections. To the extent a 14 party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 15 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 16 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by the 17 District Judge when reviewing these Findings and Recommendations pursuant to 28 U.S.C. § 636 18 (b)(1)(C). The parties are advised that failure to file objections within the specified time may 19 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 20 2014). This recommendation is not an order that is immediately appealable to the Ninth Circuit 21 Court of Appeals. 22 IT IS SO ORDERED. 23
24 Dated: November 7, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 25
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