Ronald Legardy v. W. L. Muniz

Filing 83

ORDER TO SHOW CAUSE by Magistrate Judge Alexander F. MacKinnon. Response to Order to Show Cause due by 10/30/2015. (See document for details). (ib)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RONALD LEGARDY,
Petitioner,

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ORDER TO SHOW CAUSE

v.

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Case No. CV 14-5887 PSG (AFM)

J. SOTO, Warden,
Respondent.

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On August 14, 2015, this case was transferred to the calendar of the

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undersigned Magistrate Judge.

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On September 22, 2015, petitioner filed a counseled Second Amended

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Petition in which he raised four grounds for relief: (1) the trial court erred in failing

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to sua sponte hold a competency hearing; (2) trial counsel rendered ineffective

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assistance in failing to reasonably investigate petitioner’s mental health or declare a

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doubt as to his competence to stand trial; (3) petitioner was incompetent to stand

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trial; and (4) petitioner’s unconstitutional absence at sentencing was prejudicial.

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Grounds One, Two, and Four have been exhausted.1

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Ground Two was rejected by the California Supreme Court with citations to People v.
Duvall, 9 Cal. 4th 464, 474 (1995); and In re Swain, 34 Cal. 2d 300, 304 (1949), which
indicated that Ground Two was rejected because petitioner had failed to allege the claim
with sufficient particularity. However, the Court has independently examined the state

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In Ground Three, however, petitioner purports to raise, for the first time, a

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“substantive incompetency claim” shown by a “preponderance of the evidence that

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he was in fact incompetent to stand trial.” (ECF No. 73 at 31.) Ground Three has

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not been exhausted.

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Accordingly, petitioner’s inclusion of Ground Three in the Second Amended

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Petition renders it a “mixed petition” containing both exhausted and unexhausted

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claims. If it were clear here that petitioner’s unexhausted claim was procedurally

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barred under state law, then the exhaustion requirement would be satisfied. See

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Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v. Zenon, 88 F.3d 828,

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831 (9th Cir. 1996); Jennison v. Goldsmith, 940 F.2d 1308, 1312 (9th Cir. 1991).

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However, it is not “clear” here that the California Supreme Court will hold that

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petitioner’s unexhausted claim is procedurally barred under state law if petitioner

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were to raise it in a habeas petition to the California Supreme Court (which being

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an original proceeding is not subject to the same timeliness requirement as a

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Petition for Review of a Court of Appeal decision). See, e.g., In re Harris, 5

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Cal. 4th 813, 825 (1993) (granting habeas relief where petitioner claiming

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sentencing error, even though the alleged sentencing error could have been raised

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on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405 (1952) (noting

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that claims that fundamental constitutional rights have been violated may be raised

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by state habeas petition). The Court therefore concludes that this is not an

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appropriate case for invocation of either statutory “exception” to the requirement

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that a petitioner’s federal claims must first be fairly presented to and disposed of on

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the merits by the state’s highest court. See 28 U.S.C. § 2254(b)(1)(B).

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Under the total exhaustion rule, if even one of the claims being alleged by a

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habeas petitioner is unexhausted, the petition must be dismissed. See Rose v. Lundy,

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habeas petition and finds that petitioner alleged Ground Two with “as much particularity
as is practicable.” See Kim v. Villalobos, 799 F.2d 1317, 1320 (9th Cir. 1986); see also
Lodged Doc. No. 3.
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455 U.S. 509, 522 (1982); see also Coleman v. Thompson, 501 U.S. 722, 731

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(1991); Castille, 489 U.S. at 349. However, in Rhines v. Weber, 544 U.S. 269, 277

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(2005), the Supreme Court held that, in certain “limited circumstances,” a district

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court may stay a mixed petition and hold it in abeyance while the petitioner returns

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to state court to exhaust his unexhausted claims. Under Rhines, the prerequisites for

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obtaining a stay while the petitioner exhausts his state remedies are: (1) that the

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petitioner show good cause for his failure to exhaust his claims first in state court;

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(2) that the unexhausted claims not be “plainly meritless”; and (3) that petitioner

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not have engaged in “abusive litigation tactics or intentional delay.” See id. at 277-

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78. Here, petitioner has not requested that the Court hold the Second Amended

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Petition in abeyance until after he exhausts his state remedies with respect to his

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unexhausted claim, let alone purported to make the three necessary showings under

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Rhines.

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Per Rhines, where the petitioner has presented the district court with a mixed

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petition and the Court determines that stay and abeyance is inappropriate, the

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district court must “allow the petitioner to delete the unexhausted claims and to

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proceed with the exhausted claims if dismissal of the entire petition would

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unreasonably impair the petitioner’s right to obtain federal relief.” See Rhines, 544

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U.S. at 278; see also Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013).

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IT THEREFORE IS ORDERED that, on or before October 30, 2015,

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petitioner shall either (a) file a formal stay-and-abeyance motion if he believes he

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can make the requisite three showings; or (b) show cause in writing, if any he has,

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why this action should not be dismissed without prejudice for failure to exhaust

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state remedies unless petitioner withdraws Ground Three.

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DATED: 10/9/2015
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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