Bacha v. Warden, Mule Creek State Prison et al

Filing 4

(IN CHAMBERS) ORDER by Magistrate Judge Paul L. Abrams. On May 13, 2015, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"or "Pet."), with an accompanying Memorandum of Points and A uthorities ("Pet. P&A"). He also filed a Motion for Stay and Abeyance ("Motion for Stay" or "Mot."). Accordingly, no later than June 12, 2015, petitioner is ordered to show cause why the Petition should not be dismis sed as a "mixed" petition. Filing by petitioner, on or before June 12, 2015, of a notice of dismissal and/or declaration, using one of the four options detailed above shall be deemed compliance with this Order to Show Cause. Petitioner i s advised that his failure to timely file a response to this Order, as set forth herein, will result in a recommendation that the Petition be dismissed as a mixed petition, and for failure to prosecute and follow Court orders. The clerk is directed to send petitioner a copy of the Notice of Dismissal form, along with this Order. *See Order for details.* (Attachments: # 1 Noice of Dismissal) (es)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES-GENERAL
Case No. SA CV 15-753-MMM (PLA)
Title:

Date May 21, 2015

Sammy Bachir Bacha v. Warden, Mule Creek State Prison, et al.
G U.S. DISTRICT JUDGE

PRESENT: THE HONORABLE

PAUL L. ABRAMS

Christianna Howard
Deputy Clerk

: MAGISTRATE JUDGE

N/A
Court Reporter / Recorder

ATTORNEYS PRESENT FOR PETITIONER:

ATTORNEYS PRESENT FOR RESPONDENT:

NONE
PROCEEDINGS:

N/A
Tape No.

NONE
( IN CHAMBERS)

On May 13, 2015, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”
or “Pet.”), with an accompanying Memorandum of Points and Authorities (“Pet. P&A”). He also filed a Motion
for Stay and Abeyance (“Motion for Stay” or “Mot.”).
Petitioner raises eight claims in the Petition. (Pet. P&A at 10-23). The first seven claims each allege ineffective
assistance of counsel for differing reasons (“Ground One” through “Ground Seven”) (Pet. P&A at 10-17), and
the eighth claim alleges cruel and unusual punishment (“Ground Eight”). (Pet. P&A at 18-19).
Petitioner states that only Ground Eight has been exhausted. (Mot. at 1). He also states that the remaining seven
claims, Grounds One through Seven, are pending before the Orange County Superior Court in a petition for writ
of habeas corpus. (Pet. at 3-4, 7-8). Thus, the Petition is “mixed” and subject to dismissal. Petitioner requests
a stay and abeyance, citing Rhines v. Weber, 544 U.S. 269, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005). (Mot.
at 1).1
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 presented in the petition. Rose v. Lundy, 455
U.S. 509, 518-22, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). The habeas statute explicitly 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). Moreover, if the exhaustion requirement is to be waived, it must be waived
expressly by the state, through counsel. See 28 U.S.C. § 2254(b)(3).
1

Petitioner did not include with his Petition or his Motion for Stay a copy of the petition currently
pending in the Orange County Superior Court purportedly raising Grounds One through Seven. Nor does he
provide a case number for that petition. (See Pet. at 3, 8).
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Exhaustion requires that petitioner’s contentions be fairly presented to the state supreme court even if that
court’s review is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838, 845-47, 119 S. Ct. 1728, 144 L. Ed. 2d
1 (1999); James v. Giles, 221 F.3d 1074, 1077, n.3 (9th Cir. 2000). Petitioner must give the state courts “one
full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established
appellate review process” in order to exhaust his claims. O’Sullivan, 526 U.S. at 845. A claim has not been
fairly presented unless the prisoner has described in the state court proceedings both the operative facts and the
federal legal theory on which his claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66, 115 S. Ct. 887,
130 L. Ed. 2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-78, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971);
Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996); Bland v. Cal. Dep’t of Corr., 20 F.3d 1469, 1473 (9th Cir.
1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017 (9th Cir. 2000). Petitioner has the burden
of demonstrating that he has exhausted available state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158
(3d Cir. 1982).
A “mixed” petition, i.e., one containing both exhausted and unexhausted claims, may be stayed pursuant to
Rhines if: (1) the petitioner has good cause for his failure to exhaust his claims in state court; (2) the
unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner intentionally
engaged in dilatory litigation tactics. Rhines, 544 U.S. at 278 (2005); see also Wooten v. Kirkland, 540 F.3d
1019, 1022 (9th Cir. 2008). Moreover, in Pace v. DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d
669 (2005), the Supreme Court held that, to avoid the predicament of a petitioner finding out too late that his
or her state petition was not timely filed and thus did not toll the one-year statute of limitations under 28 U.S.C.
§ 2244(d)(2), the petitioner could “fil[e] a ‘protective’ petition in federal court and ask[] the federal court to stay
and abey the federal habeas proceedings until state remedies are exhausted.” Pace, 544 U.S. at 416 (citing
Rhines, 544 U.S. at 278).
In his Motion for Stay, petitioner claims that he has been unable to exhaust his claims in state court because of
his “psychological incapacity,” and the fact that he was unable to complete “any portion of this petition” without
the “help of a trusted fellow inmate.” (Mot. at 1). He also contends that he suffered the “loss of an essentially
complete [state court] petition and all its supporting documents, a loss that occurred following back to back cell
searches that resulted in the confiscation and apparent destruction of virtually all of [petitioner’s] legal
paperwork.” (Id.). He states that “efforts to retrieve the documents are ongoing as of this date.” (Id.).
Petitioner’s Motion for Stay fails to meet the showing required by Rhines. Although petitioner contends that
his “first state petition and the documents relied upon to prepare it” were lost, he fails to provide any dates or
other pertinent information regarding the alleged “back to back cell searches” that resulted in the loss of his
documents, or the efforts he has made to recover those documents. Nor does he state how this incident, or his
unexplained “psychological incapacity,” provide good cause for not previously exhausting Grounds One through
Seven in state court, when he was able to exhaust Ground Eight. The Motion for Stay also completely fails to
address whether petitioner’s claims are potentially meritorious, or demonstrate that petitioner has not
intentionally engaged in dilatory litigation tactics. Accordingly, petitioner’s Motion for Stay is denied without
prejudice.

Petitioner has the following options:
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Option 1: Petitioner may request a voluntary dismissal of the entire action without prejudice pursuant to Federal
Rule of Civil Procedure 41(a), so that he may return to the state courts to exhaust his unexhausted claims.
However, petitioner is cautioned that should he choose to dismiss the instant Petition, any subsequent federal
petition may be entirely time-barred by the statute of limitations under 28 U.S.C. § 2244(d)(1), as amended by
the AEDPA, which provides that “[a] 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court.” In order to proceed under Option
1, petitioner may use the attached Notice of Dismissal form and select the option dismissing this action in
its entirety. He must also sign the form.
Option 2: Petitioner may request a voluntary dismissal of his unexhausted claims (Grounds One through Seven)
and elect to proceed only on his exhausted claim (Ground Eight). However, petitioner is advised that if he elects
to proceed with his exhausted claim, any future habeas petition containing his currently unexhausted claims, or
other claims that could have been raised in the instant Petition, may be rejected as successive. In order to
proceed under Option 2, petitioner may use the attached Notice of Dismissal form to select the option
dismissing only certain claims, must specify which grounds for relief in the Petition he seeks to dismiss,
and must sign the form.
Option 3: Petitioner is advised that if he still desires to seek a stay pursuant to Rhines, he must file a
declaration, signed under penalty of perjury, requesting a stay pursuant to Rhines, and must also (1)
provide the Court with a complete copy of the state habeas petition currently pending in the Orange
County Superior Court; and (2) show good cause for not having already exhausted his unexhausted
claims, demonstrate that the claims are not plainly meritless, and show that he has not intentionally
engaged in dilatory litigation tactics.
Option 4: Pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), overruled on other grounds by Robbins
v. Carey, 481 F.3d 1143 (9th Cir. 2007), petitioner may dismiss his unexhausted claims (Grounds One through
Seven), after which the Court would be empowered to stay his remaining fully exhausted claim (Ground Eight)
while he exhausts his dismissed claims in the state courts. Petitioner is warned, however, that “[a] petitioner
seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition
once he has exhausted them only if those claims are determined to be timely . . . [a]nd demonstrating timeliness
will often be problematic under the now-applicable legal principles.” King v. Ryan, 564 F.3d 1133, 1140-41
(9th Cir. 2009). In particular, petitioner may only amend a new claim into a pending federal habeas petition after
the expiration of the limitation period if the new claim shares a “common core of operative facts” with an
exhausted claim in the pending petition.2 Mayle v. Felix, 545 U.S. 644, 659, 125 S. Ct. 2562, 162 L. Ed. 2d 582
(2005). In order to proceed under Option 4, petitioner must: (1) file a declaration, signed under penalty
of perjury, selecting a stay pursuant to Kelly, and (2) use the attached Notice of Dismissal form to select
the option dismissing only certain claims, specify which grounds for relief in the Petition he seeks to
dismiss, and sign the form.
Accordingly, no later than June 12, 2015, petitioner is ordered to show cause why the Petition should not be
dismissed as a “mixed” petition. Filing by petitioner, on or before June 12, 2015, of a notice of dismissal and/or
declaration, using one of the four options detailed above shall be deemed compliance with this Order to Show

2

Although not ruling on the merits of the issue at this time, the Court notes that notwithstanding the
fact that Ground Eight contains an ineffective assistance of appellate counsel component, petitioner’s claims of
ineffective assistance of counsel in Grounds One through Seven do not appear to share a common core of
operative facts with his claim of cruel and unusual punishment in Ground Eight.
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Cause.
Petitioner is advised that his failure to timely file a response to this Order, as set forth herein, will result
in a recommendation that the Petition be dismissed as a “mixed” petition, and for failure to prosecute and
follow Court orders. The clerk is directed to send petitioner a copy of the Notice of Dismissal form, along with
this Order.
cc:

Sammy Bachir Bacha, pro se

Initials of Deputy Clerk

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