CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
Present: The Honorable: Patricia Donahue, United States Magistrate Judge
Isabel Martinez N/A Deputy Clerk Court Reporter / Recorder
Attorneys Present for Petitioner: Attorneys Present for Respondent:
N/A N/A
Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not be Dismissed as Unexhausted
On July 28, 2020, Petitioner Jose Angel Martinez (“Petitioner”), a state prisoner represented by counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). [Dkt. Nos. 1, 3.] The Petition raises four grounds for relief: (1) People v. Chui, 59 Cal. 4th 155 (2014), bars the natural and probable consequences theory of liability as a basis for first degree murder; (2) Trial counsel’s failure to object to the natural and probable consequences jury instruction deprived Petitioner of his Sixth Amendment right to effective assistance of counsel; (3) Under People v. Banks, 61 Cal. 4th 788 (2015), there is insufficient evidence to find malice in Petitioner’s case; and
(4) Petitioner is entitled to a youth offender parole hearing under Penal Code § 3051. [Dkt. No. 1 at 5; Dkt. No. 3-1 at 1-14.]1
1 Petitioner’s counsel did not list the grounds for relief in paragraph 8 on the form. [See Dkt. No. 1 at 5.] Rather, counsel filed a separate “Memorandum of Points and CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
I. Procedural History On October 6, 2017, Petitioner was convicted by a jury, in Los Angeles County Superior Court Case No. NA095527, of first-degree murder in violation of Penal Code § 187(a) and arson of property of another in violation of Penal Code § 451(d). [Dkt. No. 1 at 2.] On November 28, 2017, Petitioner was sentenced to 28 years to life imprisonment. [Id.] Petitioner filed an appeal on January 2, 2018. He raised three claims: (1) that the trial court erred in giving self-defense instructions; (2) that the trial court erred in failing to give a lesser related instruction on the crime of accessory after the fact; and (3) whether Petitioner could raise a resentencing issue under SB 1437 on direct appeal. [Dkt. No. 1 at 2-3.] The California Court of Appeal affirmed the judgment on January 24, 2019. [Id.; see also https://appellatecases.courtinfo.ca.gov (search for Jose Angel Martinez) (last visited July 31, 2020).2 Petitioner filed a petition for review in the California Supreme Court which was denied on May 7, 2019. [Id.] Petitioner filed a petition for resentencing in the Los Angeles County Superior Court which was denied on June 23, 2020. [Dkt. No. 3 at 6.] Petitioner filed an appeal of the resentencing denial which is pending in the California Court of Appeal. [Id.; see https://appellatecases.courtinfo.ca.gov.] II. Discussion Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has conducted a preliminary review of the Petition. For the reasons stated below, the Court finds that the Petition is subject to dismissal on the grounds that it appears wholly
Authorities in Support of Petition for Writ of Habeas Corpus of Petitioner Jose Martinez” which set forth Petitioner’s four grounds for relief. [See Dkt. Nos. 3 at 2; 3-1 at 1-14.] 2 See Fed. R. Evid. 201; Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012) (noting that a court may take judicial notice of court records). CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
unexhausted. Accordingly, this Order constitutes notice to Petitioner of the defects of the Petition and the consequences for his failure to correct them. A. Applicable Law As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground for relief presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). The habeas statute provides that a habeas petition brought by a person in state custody “shall not be granted unless it appears that – (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Exhaustion requires that the petitioner’s claims be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly presented to a state court unless the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Petitioner concedes that he has not exhausted the claims raised in his Petition in the California state courts. [See Dkt. No. 1 at 5, 7.] He currently has a habeas petition pending in the Los Angeles County Superior Court which he filed on July 28, 2020. [See Dkt. No. 1 at 8.] He also has an appeal of the resentencing denial pending in the California Court of Appeal. [Dkt. No. 3 at 6.] Accordingly, the Petition appears wholly unexhausted. CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
III. Order Petitioner is, therefore, ORDERED TO SHOW CAUSE no later than August 21, 2020 why the Petition should not be dismissed without prejudice for lack of exhaustion. Petitioner shall file no later than the August 21, 2020 deadline either: (1) A request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court held that, in “limited circumstances,” federal district courts have discretion to grant a request to stay a “mixed petition” containing both exhausted and unexhausted claims, and to hold it in abeyance while a petitioner exhausts the remaining claims in state court. Id. at 277-78. In the Ninth Circuit, the Rhines stay and abeyance procedure is not limited to mixed petitions and a district court may stay a petition that raises only unexhausted claims. Mena v. Long, 813 F.3d 907, 908 (9th Cir.
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CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
Present: The Honorable: Patricia Donahue, United States Magistrate Judge
Isabel Martinez N/A Deputy Clerk Court Reporter / Recorder
Attorneys Present for Petitioner: Attorneys Present for Respondent:
N/A N/A
Proceedings: (In Chambers) Order to Show Cause Why Petition Should Not be Dismissed as Unexhausted
On July 28, 2020, Petitioner Jose Angel Martinez (“Petitioner”), a state prisoner represented by counsel, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (“Petition”). [Dkt. Nos. 1, 3.] The Petition raises four grounds for relief: (1) People v. Chui, 59 Cal. 4th 155 (2014), bars the natural and probable consequences theory of liability as a basis for first degree murder; (2) Trial counsel’s failure to object to the natural and probable consequences jury instruction deprived Petitioner of his Sixth Amendment right to effective assistance of counsel; (3) Under People v. Banks, 61 Cal. 4th 788 (2015), there is insufficient evidence to find malice in Petitioner’s case; and
(4) Petitioner is entitled to a youth offender parole hearing under Penal Code § 3051. [Dkt. No. 1 at 5; Dkt. No. 3-1 at 1-14.]1
1 Petitioner’s counsel did not list the grounds for relief in paragraph 8 on the form. [See Dkt. No. 1 at 5.] Rather, counsel filed a separate “Memorandum of Points and CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
I. Procedural History On October 6, 2017, Petitioner was convicted by a jury, in Los Angeles County Superior Court Case No. NA095527, of first-degree murder in violation of Penal Code § 187(a) and arson of property of another in violation of Penal Code § 451(d). [Dkt. No. 1 at 2.] On November 28, 2017, Petitioner was sentenced to 28 years to life imprisonment. [Id.] Petitioner filed an appeal on January 2, 2018. He raised three claims: (1) that the trial court erred in giving self-defense instructions; (2) that the trial court erred in failing to give a lesser related instruction on the crime of accessory after the fact; and (3) whether Petitioner could raise a resentencing issue under SB 1437 on direct appeal. [Dkt. No. 1 at 2-3.] The California Court of Appeal affirmed the judgment on January 24, 2019. [Id.; see also https://appellatecases.courtinfo.ca.gov (search for Jose Angel Martinez) (last visited July 31, 2020).2 Petitioner filed a petition for review in the California Supreme Court which was denied on May 7, 2019. [Id.] Petitioner filed a petition for resentencing in the Los Angeles County Superior Court which was denied on June 23, 2020. [Dkt. No. 3 at 6.] Petitioner filed an appeal of the resentencing denial which is pending in the California Court of Appeal. [Id.; see https://appellatecases.courtinfo.ca.gov.] II. Discussion Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has conducted a preliminary review of the Petition. For the reasons stated below, the Court finds that the Petition is subject to dismissal on the grounds that it appears wholly
Authorities in Support of Petition for Writ of Habeas Corpus of Petitioner Jose Martinez” which set forth Petitioner’s four grounds for relief. [See Dkt. Nos. 3 at 2; 3-1 at 1-14.] 2 See Fed. R. Evid. 201; Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012) (noting that a court may take judicial notice of court records). CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
unexhausted. Accordingly, this Order constitutes notice to Petitioner of the defects of the Petition and the consequences for his failure to correct them. A. Applicable Law As a matter of comity, a federal court will not entertain a habeas corpus petition unless the petitioner has exhausted the available state judicial remedies on every ground for relief presented in the petition. Rose v. Lundy, 455 U.S. 509, 518-22 (1982). The habeas statute provides that a habeas petition brought by a person in state custody “shall not be granted unless it appears that – (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1). Exhaustion requires that the petitioner’s claims be fairly presented to the state courts and be disposed of on the merits by the highest court of the state. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994); Carothers v. Rhay, 594 F.2d 225, 228 (9th Cir. 1979); see also Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). A claim has not been fairly presented to a state court unless the petitioner has described both the operative facts and the federal legal theory on which the claim is based. Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-78 (1971); Greenway v. Schriro, 653 F.3d 790, 801 (9th Cir. 2011); Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996). Petitioner concedes that he has not exhausted the claims raised in his Petition in the California state courts. [See Dkt. No. 1 at 5, 7.] He currently has a habeas petition pending in the Los Angeles County Superior Court which he filed on July 28, 2020. [See Dkt. No. 1 at 8.] He also has an appeal of the resentencing denial pending in the California Court of Appeal. [Dkt. No. 3 at 6.] Accordingly, the Petition appears wholly unexhausted. CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
III. Order Petitioner is, therefore, ORDERED TO SHOW CAUSE no later than August 21, 2020 why the Petition should not be dismissed without prejudice for lack of exhaustion. Petitioner shall file no later than the August 21, 2020 deadline either: (1) A request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). In Rhines, the Supreme Court held that, in “limited circumstances,” federal district courts have discretion to grant a request to stay a “mixed petition” containing both exhausted and unexhausted claims, and to hold it in abeyance while a petitioner exhausts the remaining claims in state court. Id. at 277-78. In the Ninth Circuit, the Rhines stay and abeyance procedure is not limited to mixed petitions and a district court may stay a petition that raises only unexhausted claims. Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016) (“a district court has the discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set forth in Rhines”). To obtain a stay pursuant to Rhines, Petitioner is required to show the following: (1) he has good cause for failing to exhaust the unexhausted claim(s) in state court; (2) the unexhausted claim(s) are potentially meritorious and not “plainly meritless”; and (3) he has not engaged in abusive litigation tactics or intentional delay. See Dixon v. Baker, 847 F.3d 714, 721- 22 (9th Cir. 2017) (discussing good cause standard for a Rhines stay). The granting of a Rhines stay would result in an order requiring Petitioner to exhaust his unexhausted claim(s) in state court, and this action may be administratively closed pending the filing of a motion from Petitioner to vacate the stay, demonstrating that his claims have been exhausted; or (2) A request for a voluntary dismissal of this action without prejudice pursuant to Federal Rule of Civil Procedure 41(a). Petitioner is advised that there is a one-year statute of limitations on habeas claims by a prisoner in state custody. 28 U.S.C. § 2244(d). The limitations period is tolled while a CIVIL MINUTES – GENERAL
Case No. CV 20-06729-RSWL (PD) Date: July 31, 2020 Title Jose Angel Martinez v. Raymond Madden
“properly filed” application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending, 28 U.S.C. § 2244(d)(2), but the limitations period is not tolled under section 2244(d) while a petition is pending in federal court. Duncan v. Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll the statute of limitations). If Petitioner fails to respond by August 21, 2020, the Petition may be dismissed. IT IS SO ORDERED. Attachment: Form CV-09 – Notice of Dismissal
: Initials of Preparer im