Jackson v. Ryan et al

Filing 22

ORDER granting 16 petitioner's motion for a stay of the petition for writ of habeas corpus; granting in part 19 petitioner's motion for an extension of the deadline for filing a reply to the respondents' answer to his petition for writ of habeas corpus and an extension of the deadline for filing a reply in support of his motion for stay and abeyance; denying as moot 21 petitioner's motion to amend his petition to remove unexhausted claims. Signed by Magistrate Judge Leslie A Bowman on 8/4/2017. (See Order for details) (DPS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jerry Ramon Jackson,
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Petitioner,
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vs.
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Charles L. Ryan; et al.,
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Respondents.
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CV 17-0058-TUC-FRZ (LAB)
ORDER

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Pending before the court is the petitioner’s motion for stay and abeyance, filed on July
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10, 2017. (Doc. 16)
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The petitioner, Jerry Ramon Jackson, moves that this court stay his pending petition for
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writ of habeas corpus and hold it in abeyance so he may return to state court and properly
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exhaust certain claims. The respondents filed a response to the motion for a stay on July 14,
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2017. (Doc. 17) Jackson filed his reply on July 31, 2017. (Doc. 20)
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Also pending is the petitioner’s motion for an extension of the deadline for filing a reply
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to the respondents’ answer to his petition for writ of habeas corpus and an extension of the
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deadline for filing a reply in support of his motion for stay and abeyance. (Doc. 19)
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Also pending is the petitioner’s motion to amend his petition. (Doc. 21) Jackson moves
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that this court permit him to amend his petition to remove unexhausted claims if the court denies
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his motion to stay. Id.
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Discussion

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On January 17, 2017, Jackson constructively filed in this court a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) The respondents filed an answer on May

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22, 2017, in which they argued, among other things, that Claims 1, 2, and 3 in the petition are

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procedurally defaulted. All three of these claims allege ineffective assistance of trial counsel

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in connection with a deposition taken from one of the robbery victims. That particular victim

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was unable to attend the trial, so the trial court allowed his testimony to be admitted via

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deposition. In Claim 1, Jackson argues trial counsel was ineffective for failing to cross-examine

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the victim. (Doc. 1, pp. 1-11); (Doc. 1-2, p. 20) In Claim 2, he argues trial counsel was

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ineffective for waiving his presence at the deposition. Id. And in Claim 3, he argues trial

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counsel was ineffective for failing to object to the admission of the deposition at trial. Id.

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These claims were raised in Jackson’s state post-conviction relief (PCR) petition, but they were

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not presented to the Arizona Court of Appeals.

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The record below indicates that when Jackson filed notice of post-conviction relief

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(PCR), his counsel informed the trial court that he was unable to find any colorable claims.

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(Doc. 12-12, p. 2) Jackson, therefore, filed his PCR petition pro se. (Doc. 13, pp. 92, 95) The

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court presumes he was still without counsel when he failed to file a timely petition for review

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with the Arizona Court of Appeals.

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In the pending motion, Jackson implicitly concedes that his PCR claims were not

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properly exhausted. (Doc. 16) Accordingly, he moves that this court stay his petition and hold

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it in abeyance while he returns to state court and attempts to properly exhaust these claims. Id.

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He maintains that his PCR counsel told him that if his PCR petition were denied, his next step

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would be to file a petition for writ of habeas corpus in federal court. (Doc. 16, p. 2)

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In Rhines, the Supreme Court held that a district court may stay a “mixed” petition and

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hold it in abeyance in order to permit the petitioner an opportunity to present unexhausted

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claims to the state court. See Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005). “Rhines

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cautioned, however, that its stay procedure must not run afoul of AEDPA’s twin purposes –

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reducing delays in the execution of state and federal criminal sentences and encouraging
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petitioners to seek relief from state courts in the first instance.” King v. Ryan, 564 F.3d 1133,

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1139 (9th Cir. 2009) (internal citation omitted) (punctuation modified). “To address these

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concerns, Rhines held that stay-and-abeyance is only appropriate when the district court

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determines there was good cause for the petitioner’s failure to exhaust his claims first in state

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court.” Id. (punctuation modified) “Furthermore, Rhines held stays inappropriate when the

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unexhausted claims are plainly meritless, or where the petitioner has engaged in abusive

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litigation tactics or intentional delay.” Id. (punctuation modified)

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Addressing these issues in reverse order, the court finds no evidence that “the petitioner

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has engaged in abusive litigation tactics or intentional delay.” King, 564 F.3d at 1139. The

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court further finds that the claims are not “plainly meritless.” Id. Finally, the court finds good

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cause to justify a stay. When Jackson failed to file a timely petition for review with the Arizona

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Court of Appeals he was without counsel and under the mistaken impression that he had no

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further recourse in state court. See Dixon v. Baker, 847 F.3d 714, 721 (9th Cir. 2017) (“A

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petitioner who is without counsel in state post[-]conviction proceedings cannot be expected to

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understand the technical requirements of exhaustion and should not be denied the opportunity

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to exhaust a potentially meritorious claim simply because he lacked counsel.”); Pace v.

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DiGuglielmo, 544 U.S. 408, 416, 125 S. Ct. 1807, 1813 (2005) (“A petitioner’s reasonable

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confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’

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for him to file in federal court.”) (citing Rhines).

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The respondents argue that Jackson’s “good cause” argument would not be sufficient

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under Martinez to excuse a procedural default. See Martinez v. Ryan, 566 U.S. 1, 132 S.Ct.

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1309 (2012). This argument assumes that the “good cause” showing under Rhines must be as

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demanding as the “good cause” showing under Martinez. The respondents do not explain why

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this must be so. In fact, there is reason to believe the opposite – that the “good cause” showing

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under Rhines should be less demanding that the “good cause” showing under Martinez. After

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all, the “good cause” showing under Rhines simply gives the petitioner a chance to return to

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state court while a “good cause” showing under Martinez allows a petitioner to avoid state court

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review altogether. See Blake v. Baker, 745 F.3d 977, 984 (9th Cir. 2014). A “good cause”
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showing under Martinez therefore undercuts “the interests of comity and federalism embedded

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in our habeas jurisprudence” in a way that a “good cause” showing under Rhines does not. Id.

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The respondents further argue that a stay would be futile because the deadline for filing

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a petition for review with the Arizona Court of Appeals has long since past and if one were

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filed, it would surely be dismissed as untimely under Ariz.R.Crim.P. 32.9(c). (Doc. 17, p. 3)

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The Rule 32 time limits, however, are not jurisdictional, so it is possible that Jackson’s petition

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would be permitted. See State v. Pope, 130 Ariz. 253, 256, 635 P.2d 846, 849 (Ariz. 1981).

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Whether it ultimately will be permitted is a matter that will be decided later by the state courts..

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Id. (A “party asserting a valid reason for non-compliance with the time requirements has a

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heavy burden in showing the court why the non-compliance should be excused.” ); see also

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Ariz.R.Crim.P. 32.9 (c) (“Motions for extensions of time to file petitions or cross petitions shall

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be filed in and ruled upon by the trial court.”). Accordingly,

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IT IS ORDERED that the petitioner’s motion for a stay of the petition for writ of habeas

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corpus is GRANTED. (Doc. 16) Jackson MUST FILE by September 15, 2017 a motion with

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the state trial court for permission to file a petition for review past the deadline stated in Rule

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32.9(c). Jackson MUST FILE with this court a status report on his progress by November 1,

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2017 and subsequent reports every two months afterwards. Failure to do so could result in a

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lifting of the stay without further notice.

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IT IS FURTHER ORDERED that the petitioner’s motion for an extension of the deadline

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for filing a reply to the respondents’ answer to his petition for writ of habeas corpus and an

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extension of the deadline for filing a reply in support of his motion for stay and abeyance is

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GRANTED in PART. (Doc. 19) When Jackson’s state court proceedings are at an end, he

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should inform the court of this fact and move that the court set a deadline for the respondents

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to file an amended answer, if they chose to do so, and a deadline for Jackson to file a reply to

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the respondents’ answer. The deadline for filing a reply in support of his motion for a stay need

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not be extended. Jackson has already filed his reply. (Doc. 20)

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IT IS FURTHER ORDERED that the petitioner’s motion to amend his petition to remove
unexhausted claims is DENIED as MOOT. (Doc. 21)

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DATED this 4th day of August, 2017.

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