Valles v. Allison

Opinion

2 3 4 5 6 7 8 11 Case No.: 21-CV-819-GPC-WVG

13 R E P O R T A N D 14 Petitioner, RECOMMENDATION ON PETITIONER’S MOTION FOR 15 v. STAY AND ABEYANCE 16 KATHLEEN ALLISON, Secretary, [Doc. Nos. 5 and 8] 17 18 Respondent. 19 21 This Report and Recommendation is submitted to the Honorable Gonzalo P. 22 Curiel, United States District Judge, pursuant to 28 U.S.C. section 636(b)(1) and Local 23 Civil Rule 72.1(d). On April 26, 2021, Andrew Valles (“Petitioner”), a California state 24 prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) before 25 this Court pursuant to 28 U.S.C. section 2254. (Doc. No. 1). On June 8, 2021, and July 26 19, 2021, Petitioner respectively filed the instant Motion for Stay and Abeyance and a 27 Supplemental Motion for Stay and Abeyance (“Motions”) pursuant to Rhines v. Weber, 28 544 U.S. 269 (2005). (Doc. Nos. 5, 8). On August 11, 2021, Kathleen Allison 2 reviewed the entirety of the Parties’ submissions and the underlying record, the Court 3 RECOMMENDS Petitioner’s Motion for Stay and Abeyance and Supplemental Motion 4 for Stay and Abeyance be DENIED as moot. The Court elaborates below. 6 On May 15, 2019, Petitioner was sentenced to incarceration for 13 years following 7 his conviction of 13 felonies under California Penal Code sections 115(a), 487(a) and 8 186.11(a)(2), under a negotiated plea agreement, in San Diego County Superior Court. 9 (Doc. No. 5 at 24). On April 26, 2021, Petitioner filed a federal habeas corpus petition 10 challenging his conviction on two grounds. (Doc. No. 1). Petitioner contends (1) he had 11 ineffective assistance of counsel and (2) the Government unlawfully induced Petitioner’s 12 guilty plea. (Doc. No. 1 at 4-5). The Court dismissed the petition without prejudice for 13 failure to allege exhaustion of state judicial remedies and ordered Petitioner to file either 14 an amended petition or a motion to stay the petition by June 25, 2021. (Doc. No. 3). 15 On June 4, 2021, Petitioner filed a state habeas corpus petition in the California 16 Supreme Court. (Doc. No. 5 at 23-28). Petitioner alleged (1) ineffective assistance of 17 counsel and (2) that his guilty plea “was unlawfully induced by prosecutorial 18 misconduct.” (Doc. No. 5 at 25-26). The California Supreme Court denied the petition 19 for review on August 18, 20211. 20 On June 8, 2021, Petitioner filed a Motion to Stay Petition to completely exhaust 21 his state court remedies. (Doc. No. 5). The Court issued an order reopening the case and 22 setting a briefing schedule on Petitioner’s Motion to Stay Petition. (Doc. No. 6). In doing 23 so, the Court ordered Petitioner to file, no later than July 30, 2021 a Supplemental Motion 24 to Stay to address how he satisfied the requirements for warranting a stay and abeyance 25

26 1 See Case No. S269151, California Courts, Appellate Courts Case Information, California Supreme 27 Court, https://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2350655&do 28 c_no=S269151&request_token=NiIwLSEmTkw2WzApSCM9VEpIQFA0UDxTJSBOQz9TICAgCg% 2 Supplemental Motion to Stay Petition. (Doc. No. 8). On August 11, 2021, Respondent 3 filed a Non-Opposition to Motion to Stay Petition. (Doc. No. 9). The matter is ripe for 4 this Court’s review and recommendation. 6 Habeas petitioners who wish to challenge either their state court conviction or the 7 length of their confinement must first exhaust state judicial remedies. See 28 U.S.C. § 8 2254(b), (c); see also Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Peterson v. 9 Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003). To exhaust state judicial remedies, a 10 California state prisoner must present the California Supreme Court with a fair 11 opportunity to rule on the merits of every issue raised in his federal habeas petition. 28 12 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34; Gatlin v. Madding, 189 F.3d 882, 13 888 (9th Cir. 1999). Federal courts cannot consider petitions that contain both exhausted 14 and unexhausted claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 15 U.S. 509, 522 (1982) (holding a district court must dismiss a federal habeas petition 16 containing both unexhausted and exhausted claims). The filing of a mixed petition 17 renders it subject to dismissal. Rose, 455 U.S. at 519. 18 In Rhines, the Supreme Court carved out “limited circumstances” in which a 19 district court may exercise its discretion to stay a mixed petition and hold it in abeyance 20 to allow the petitioner time to fully exhaust his claims in state court. Rhines, at 544 U.S. 21 277; Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Under Rhines, a district court 22 may stay and hold in abeyance a “mixed” habeas petition if: (1) the petitioner has good 23 cause for failing to exhaust all claims; (2) the unexhausted claims are potentially 24 meritorious; and (3) the petitioner did not intentionally engage in dilatory litigation 25 tactics. Id. at 277-78. In the Ninth Circuit, the district court also has discretion to stay and 26 hold in abeyance fully unexhausted petitions. Mena v. Long, 813 F.3d 907, 911-12 (9th 27 Cir. 2016) (“we do not find the distinctions between mixed petitions and fully 28 unexhausted petitions sufficiently meaningful to warrant different treatment”). 2 A. Exhaustion of Claim in Underlying Petition 3 Before analyzing whether a Rhines stay is warranted, the threshold issue is whether 4 there are any state remedies available to Petitioner that would justify staying the case for 5 exhaustion purposes. Proper exhaustion of state remedies requires a litigant to present 6 every federal claim or issue in his petition to the California Supreme Court to ensure the 7 court has a fair opportunity to rule on the merits. Granberry, 481 U.S. at 133-134; see 8 also Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding exhaustion is not satisfied 9 “where the claim has been presented for the first and only time in a procedural context in 10 which its merits will not be considered unless there are special and important reasons...”). 11 A claim has been fairly presented if the petitioner has described both the operative facts 12 and the federal legal theory on which the claim is based. Bland v. California Dep’t of 13 Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994), cert. denied, 513 U.S. 947 (1994), 14 overruled on other grounds in Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). 15 Here, it is clear Petitioner has exhausted his available state remedies. Petitioner 16 filed a petition for writ of habeas corpus with the California Supreme Court, seeking 17 review of the following claims: (1) “conviction obtained by plea of guilty which was 18 unlawfully induced by prosecutorial misconduct” in violation of the First, Fifth, Sixth 19 and Fourteenth Amendments; and (2) ineffective assistance of counsel in violation of the 20 Sixth Amendment. (Doc. No. 5 at 25-26). Petitioner’s state claims are identical to the 21 claims set forth in the instant Petition. (Doc. No. 1 at 4-5). The California Supreme Court 22 denied review on August 18, 2021, a decision which rendered Petitioner’s claims 23 exhausted at the state court level. Accordingly, the Court finds Petitioner has satisfied the 24 exhaustion requirement with respect to the claims presented in the instant Petition. For 25 this reason alone, the Court RECOMMENDS that Petitioner’s Motion and Supplemental 26 Motion for Stay and Abeyance be DENIED AS MOOT. 27 / / / 28 / / / 2 In addition to being moot on procedural grounds, Petitioner’s Motions do not 3 warrant a stay and abeyance based on substantive grounds under Rhines. 4 i. Good Cause 5 Stays and abeyances pending exhaustion of claims in state court are only available 6 where petitioner shows “good cause” for his failure to exhaust his judicial remedies. 7 Rhines, 544 U.S. at 277. Neither Rhines nor the Ninth Circuit have precisely defined what 8 constitutes good cause for failure to exhaust. Concurrently, the Ninth Circuit has clarified 9 the test is less stringent than the “extraordinary circumstances” standard and turns on 10 whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, 11 to justify [the failure to exhaust].” See Blake, 745 F.3d at 981-982; Jackson v. Roe, 425 12 F.3d 654, 661-62 (9th Cir. 2005). Here, Petitioner claims he satisfies the good cause 13 standard and cites Dixon v. Baker, 847 F.3d 714, 721-22 (9th Cir. 2017) and Pace v. 14 DiGuglielmo, 544 U.S. 408, 416 (2005) as supporting authority. (Doc. No. 8 at 1-6). 15 Petitioner argues his lack of counsel during the habeas process and confusion regarding 16 state filing procedures constitute good cause for his failure to exhaust his claims in state 17 court. (Doc. No. 8 at 5-6). This Court disagrees and explains below. 18 As a foundational matter, neither Dixon nor Pace apply here. In Dixon, a pro se 19 prisoner filed timely state and federal habeas petitions and then sought to stay his federal 20 petition to exhaust additional ineffective assistance of trial counsel claims in state court. 21 Dixon, 847 F.3d at 717. The petitioner argued he failed to exhaust those claims in his 22 initial state habeas petitions because he “lacked the assistance of counsel” in those 23 proceedings. Id. at 718. The Ninth Circuit found a Rhines stay was appropriate because 24 the petitioner’s lack of legal representation in his state habeas proceedings constituted 25 “good cause” for failing to exhaust his claims. Id. at 721. The court reasoned a pro se 26 petitioner “in state post-conviction proceedings cannot be expected to understand the 27 technical requirements of exhaustion and should not be denied the opportunity to exhaust 28 a potentially meritorious claim simply because he lacked counsel.” Id. 2 collateral relief in state court pro se and not when a pro se prisoner fails to file any state 3 habeas petitions before bringing his claims to federal court. See Sangurima v. 4 Montgomery, 2017 WL 7371168, at *7-8 (C.D. Cal. Dec. 12, 2017) (good cause for 5 Rhines stay is not shown under Dixon where petitioner had not filed any state habeas 6 petition and moved for stay only in response to a federal order to show cause); Avalos v. 7 Sherman, 2018 WL 5304855, at *5 (C.D. Cal. Sept. 10, 2018); Barboa v. Espinoza, 2018 8 WL 6038343, at *2 (C.D. Cal. June 19, 2018). Here, Petitioner did not file any state 9 habeas post-conviction petition before filing the instant Petition. Like Sangurima, 10 Petitioner only filed a state habeas petition in response to the Court's order to requiring 11 Petitioner to cure the pleading deficiency by filing either a first amended petition or 12 motion to stay the petition. Thus, Dixon does not support Petitioner’s position. 13 Petitioner’s reliance on Pace is also misplaced. In Pace, the Supreme Court 14 observed “a petitioner’s reasonable confusion about whether a state filing would be 15 timely would ordinarily constitute ‘good faith’ for him to file in federal court.” Pace, 544 16 U.S. at 416. The petitioner’s confusion resulted from amendments to habeas corpus laws 17 between the time of his conviction and the filing of his federal habeas petition. Id. at 410- 18 413. Here, Petitioner alleges his “reasonable confusion” stems from his assumption that 19 the 60-day deadline to file an appeal in state court also applies to a state habeas petition. 20 (Doc. No. 8 at 5-6). Petitioner’s position amounts to ignorance of the law, which is legally 21 unsupported and factually dissimilar from Pace. This Court will not validate such 22 argument and invite litigants to presume good cause arises from their own ignorance. 23 ii. Merits of the Unexhausted Claims 24 To obtain a Rhines stay, “a federal habeas petitioner must establish at least one of 25 his unexhausted claims is not ‘plainly meritless.’” Dixon, 847 F.3d 714 at 722. To 26 determine “whether a claim is ‘plainly meritless,’ the federal court [must] refrain from 27 ruling on the merits of the claim unless ‘it is perfectly clear that the petitioner has no hope 28 of prevailing.’” Id. (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). To 2 performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 3 (1984). A deficient performance is “outside the wide range of professionally competent 4 assistance.” Id. at 689. Prejudice signifies “counsel’s errors were so serious as to deprive 5 a defendant of a fair trial, a trial whose result is reliable.” Id. at 687. Counsel is “strongly 6 presumed to have rendered adequate assistance and made all significant decisions in the 7 exercise of reasonable professional judgment.” Id. at 690. 8 Petitioner maintains at least one of his unexhausted claims is not plainly meritless. 9 (Doc. No. 8 at 7). He argues ineffective assistance of counsel because his trial counsel 10 “failed to object at the state sentencing hearing knowing (1) the plea agreement had been 11 breached, (2) his advice to his client about parole eligibility was incorrect and false, and 12 (3) a court and judge decides whether to approve or decline a motion for postponement.” 13 (Id. at 7-8). Petitioner claims, the morning of the sentencing proceeding, the prosecutor 14 revoked a “promised condition that was crucial to Petitioner accepting a plea of guilty.” 15 (Id. at 7). In turn, Petitioner instructed his trial counsel to request a postponement of the 16 sentencing proceedings. His trial counsel then spoke solely with the prosecutor, who 17 refused to discuss a change in the plea. (Id. at 7). Petitioner claims, if the postponement 18 had been granted, he would have withdrawn his guilty plea and gone to trial. (Id. at 21). 19 The Court is not moved by Petitioner’s arguments. First, Petitioner provides 20 nothing more than a bare allegation of his counsel’s deficient performance. Second, 21 Petitioner fails to plead facts to show the decision reached would “reasonably likely have 22 been different absent the errors.” Strickland, 466 U.S. at 696. Even if trial counsel had 23 objected and moved the court to postpone the sentencing proceedings, Petitioner offers 24 no grounds to show the judge would have granted the request or that he would have been 25 acquitted at trial, if given the opportunity to revoke the agreement. Finally, Petitioner fails 26 to demonstrate his guilty plea was unlawfully induced. Petitioner baldly alleges the 27 prosecutor coerced his plea by agreeing to not require sex offender registration only to 28 revoke the condition minutes prior to the sentencing hearing. (Doc. No. 8 at 20-21). In 1 doing so, Petitioner wholly fails to address the likelihood of his success on his claim of 2 prosecutorial misconduct. Accordingly, Petitioner does not clear the second part of the 3 || Rhines test. 4 ili. Absence of Intentionally Dilatory Litigation Tactics 5 A petitioner seeking a stay and abeyance must show he has not been engaged in 6 ||“intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277-78. Nothing in the 7 ||record indicates Petitioner engaged in dilatory litigation tactics. Thus, Petitioner satisfies 8 || this third part of the Rhines test. 9 Vv. CONCLUSION AND RECOMMENDATION 10 Although he satisfies the third part of the Rhines test, Petitioner fails to demonstrate 11 || good cause and that his claims are not plainly meritless under the first and second parts 12 || of the test. Accordingly, IT IS HEREBY RECOMMENDED that Petitioner’s Motion 13 Supplemental Motion for Stay and Abeyance be DENIED as moot. No later than 14 || December 3, 2021, the parties may file written objections and serve a copy on all parties. 15 document should be captioned “Objections to Report and Recommendation.” Any 16 ||reply to the objections shall be filed and served on all parties no later than January 7, 17 ||2022. Failure to file objections within the specified time may waive the right to waive 18 || objections on appeal of the Court’s order. 19 Dated: 11/2/2021 UN Ss— 7] Hon. William V. Gallo 9 United States Magistrate Judge 23 24 25 26 27 28