Castro v. Cash

Filing 20

ORDER signed by Magistrate Judge Sheila K. Oberto on 1/3/2012. Case Stayed. Petitioner to file Status Report every 30-days. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ISIDRO CASTRO,

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Petitioner,

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v.
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B. M. CASH, Warden,
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Respondent.
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1:11-cv—00441-SKO-HC
ORDER DISCHARGING ORDERS TO SHOW
CAUSE (DOCS. 5, 7)
ORDER DENYING REQUEST FOR A STAY
PURSUANT TO RHINES V. WEBER
(DOC. 19)
ORDER GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION TO
WITHDRAW UNEXHAUSTED CLAIMS
(DOC. 19)
ORDER GRANTING PETITIONER’S
MOTION FOR A KELLY STAY (DOC. 19)

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ORDER DIRECTING PETITIONER TO
FILE STATUS REPORTS EVERY THIRTY
(30) DAYS

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition for writ of habeas corpus pursuant

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to 28 U.S.C. § 2254.

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Petitioner has consented to the jurisdiction of the United States

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Magistrate Judge to conduct all further proceedings in the case,

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including the entry of final judgment, by manifesting consent in

Pursuant to 28 U.S.C. § 636(c)(1),

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a signed writing filed by Petitioner on August 12, 2011 (doc.

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13).

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withdraw unexhausted claims, filed on December 6, 2011.

Pending before the Court is Petitioner’s request to

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I.

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Petitioner has responded to the Court’s orders to show cause

Discharging the Orders to Show Cause

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regarding dismissal for failure to exhaust state court remedies

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and for failure to comply with an order of the Court.

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result, the orders to show cause that issued on March 28, 2011,

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and May 17, 2011, will be discharged.

As a

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II.

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Petitioner alleged that he was an inmate of the California

Background

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State Prison at Lancaster, California, serving a sentence of

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seventeen (17) years to life imposed in the Kern County Superior

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Court upon Petitioner’s conviction after jury trial of having

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violated Cal. Pen. Code §§ 459, 288(A)(c)(2), 273, and 273.6(A).

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(Pet. 1.)

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proceedings in the trial court:

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instructions concerning consideration of prior acts of misconduct

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violated Petitioner’s right to due process of law under the

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Fourteenth Amendment (pet 9, 18-26); 2) the evidence of

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Petitioner’s intent to commit oral copulation at the time of

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entry of the structure was insufficient to support a conviction

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of burglary, and thus Petitioner’s right to due process of law

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under the Fourteenth Amendment was violated

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entry of the livingroom from the bedroom of a single family

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residence with the intent to commit forcible oral copulation was

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not sufficient to support a conviction of burglary in violation

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of Cal. Pen. Code § 459 (id. at 31-38); and 4) trial counsel’s

Petitioner raises the following claims concerning the
1) erroneous or incomplete

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(id. at 27-31); 3)

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sleeping through an unspecified portion or portions of the

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proceedings violated Petitioner’s right to the effective

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assistance of counsel.

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Although Petitioner alleged that he had exhausted state

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court remedies as to the first three claims, Petitioner has not

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exhausted his state court remedies as to the fourth claim

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concerning counsel’s sleeping.

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On August 19, 2011, the Court denied without prejudice a
motion for a stay of the proceedings for purposes of exhaustion

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that Petitioner had denominated a motion for an extension of

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time.

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Petitioner was informed that the denial was without prejudice to

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seeking a stay concerning specified claims.

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2011, the Court issued an order concluding that Petitioner had

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not exhausted his state court remedies as to his fourth claim

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concerning the ineffective assistance of counsel.

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informed Petitioner of the pertinent law regarding exhaustion of

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state court remedies.

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the Court could not consider his “mixed” petition (i.e., a

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petition containing both exhausted and unexhausted claims), and

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Petitioner was directed to withdraw the unexhausted claim and

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proceed with the unexhausted claims, or have the petition

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dismissed without prejudice as a mixed petition.

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10.)

The basis of the denial was a lack of information.

On November 22,

The Court

The Court further informed Petitioner that

(Doc. 18, 6-

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III.

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On December 6, 2011, Petitioner filed a document stating he

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had filed a petition for writ of habeas corpus in the California

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Supreme Court, and he further represented that he was ignorant of

Motion to Withdraw Unexhausted Claims

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the law, found law library staff to be unavailable, had been in

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the hospital for a few weeks, and did not find it that easy to

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file paperwork on time.

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Petitioner stated the following:

Anyhow, I don’t understand anything but there’s any
way if I first get the opinion from the Supreme Court
and the decision.
If not then I would like to file a motion to withdraw
the unexhausted claim concerning the ineffective
assistance of trial counsel.

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(Doc. 19, 2-3.)

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Petitioner would prefer to have the proceedings stayed until the

The Court interprets this language to mean that

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California Supreme Court acts on a petition he states he has

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filed there.

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A.

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Request for a Stay of the Proceedings

Petitioner’s statement of preference for a stay and his

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articulation of the circumstances concerning his filing of

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paperwork can be construed as a motion for a stay based on a

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showing of good cause pursuant to Rhines v. Weber, 544 U.S. 269

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(2005).

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A district court has discretion to stay a petition which it

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may validly consider on the merits.

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269, 276;

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A petition may be stayed either under Rhines, or under Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2003).

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1133, 1138-41 (9th Cir. 2009).

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Rhines v. Weber, 544 U.S.

King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009).

King v. Ryan, 564 F.3d

Under Rhines, the Court has discretion to stay proceedings;

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however, this discretion is circumscribed by the Antiterrorism

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and Effective Death Penalty Act of 1996 (AEDPA).

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U.S. at 276-77.

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abeyance [is] available only in limited circumstances” and “is

Rhines, 544

In light of AEDPA’s objectives, “stay and

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only appropriate when the district court determines there was

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good cause for the petitioner’s failure to exhaust his claims

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first in state court.”

Id. at 277-78.

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A petition may also be stayed pursuant to the procedure set

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forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2003).

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files an amended petition deleting the unexhausted claims; 2) the

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district court stays and holds in abeyance the fully exhausted

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petition; and 3) the petitioner later amends the petition to

Under this three-step procedure: 1) the petitioner

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include the newly exhausted claims.

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1133, 1135 (9th Cir. 2009).

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allowed if the additional claims are timely.

See, King v. Ryan, 564 F.3d

However, the amendment is only
Id. at 1140-41.

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A stay pursuant to Rhines should be available only in the

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limited circumstances where it is shown that 1) there was good

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cause for the failure to have first exhausted the claims in state

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court, 2) the claim or claims at issue potentially have merit,

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and 3) there has been no indication that the petitioner has been

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intentionally dilatory in pursuing the litigation.

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U.S. at 277-78.

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Rhines, 544

In view of the limited record before the Court at this stage

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of the proceedings, the Court cannot conclude that Petitioner’s

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claim concerning the allegedly ineffective assistance of counsel

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is without merit.

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Petitioner has been intentionally dilatory.

Further, it does not necessarily appear that

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With respect to good cause, Petitioner alleges that he is

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ignorant of the law, did not have access to law library staff,

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and was placed in a hospital for a few weeks.

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not specify the time period of his hospitalization.
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Petitioner does

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The Supreme Court has not articulated what constitutes good

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cause under Rhines, but it has stated that “[a] petitioner's

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reasonable confusion about whether a state filing would be timely

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will ordinarily constitute ‘good cause’ for him to file” a

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“protective” petition in federal court.

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U.S. 408, 416 (2005).

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standard is a less stringent one than that for good cause to

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establish equitable tolling, which requires that extraordinary

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circumstances beyond a petitioner's control be the proximate

Pace v. DiGuglielmo, 544

The Ninth Circuit has held that the

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cause of any delay.

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Cir. 2005).

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stay-and-abeyance should be available only in limited

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circumstances.”

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see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008),

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cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276

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(2009) (concluding that a petitioner’s impression that counsel

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had exhausted a claim did not demonstrate good cause).

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Jackson v. Roe, 425 F.3d 654, 661-62 (9th

The Ninth Circuit has recognized, however, that “a

Id. at 661 (internal quotation marks omitted);

Here, Petitioner asserts that as a result of his ignorance

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of the law and generally limited access to law library staff, he

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had difficulty in filing papers.

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are everyday realities in the lives of prisoners.

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Petitioner’s assertions are considered to qualify as good cause,

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then a Rhines stay would be available in virtually every case in

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which a petitioner was ignorant of the law or without counsel to

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represent him with respect to discretionary, post-conviction

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proceedings.

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and Wooten that stays be available only in limited circumstances.

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///

However, these circumstances
If

This would run counter to the directions in Rhines

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Further, Petitioner does not give any specific information

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concerning his hospitalization, so he has not established that it

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affected his ability to exhaust his state court remedies as to

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his claim, which concerned trial counsel and thus was apparent to

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Petitioner by the end of the trial court proceedings.

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Accordingly, as Petitioner has not established good cause,

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he has not demonstrated his entitlement to a stay under Rhines v.

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Weber, 544 U.S. 269, 277-78 (2005).

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B.

Withdrawal of the Unexhausted Claim

Because Petitioner has failed to show good cause for a stay,

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the Court concludes that Petitioner’s preferred option of a stay

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of the entire petition pending exhaustion is not possible.

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Although Petitioner’s motion to withdraw the unexhausted

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claim was conditional, the condition, namely, a Rhines-type stay,

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cannot be met.

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unexhausted claim concerning the ineffective assistance of

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counsel becomes operative.

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Thus, Petitioner’s request to withdraw the

In the three-step procedure under Kelly, 1) the petitioner

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files an amended petition deleting the unexhausted claims; 2) the

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district court stays and holds in abeyance the fully exhausted

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petition; and 3) the petitioner later amends the petition to

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include the newly exhausted claims.

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1133, 1135 (9th Cir. 2009).

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allowed if the additional claims are timely.

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See, King v. Ryan, 564 F.3d

However, the amendment is only
Id. at 1140-41.

In this case, Petitioner meets the qualifications for a

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Kelly stay.

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has been withdrawn.

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fully exhausted, and the first step of the Kelly procedure is

The petition contained one unexhausted claim which
Thus, the instant petition now appears to be

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complete.
Therefore, the Court will stay the proceedings according to

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the second step of the Kelly procedure.

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instructed to file status reports regarding his progress through

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the state courts.

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opinion, provided the opinion is a denial of relief, Petitioner

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must file an amended petition including all of his exhausted

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claims.

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untimely if they do not comport with the statute of limitations

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Petitioner will be

Once the California Supreme Court renders its

He is forewarned that claims may be precluded as

set forth in 28 U.S.C. § 2244(d).1

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IV.

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Accordingly, it is ORDERED that:

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1)

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Disposition

The orders to show cause that issued on March 28, 2011,

and May 17, 2011, are DISCHARGED; and
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Petitioner’s motion to stay the proceedings pursuant to

Rhines v. Weber is DENIED; and
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Petitioner’s motion to amend the petition to withdraw

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the unexhausted claim concerning ineffective assistance of trial

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counsel based on counsel’s sleeping is GRANTED; and

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4) Petitioner’s motion for stay of the proceedings is

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GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir.

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2003); and

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5) The proceedings are STAYED pending exhaustion of state
remedies; and

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It is unclear whether Petitioner will have sufficient time to be able
to exhaust his unexhausted claims. However, no statute of limitations
protection is imparted in a King/Kelly stay, nor are the exhausted claims
adjudicated in this Court during the pendency of such a stay. Further, the
undersigned is not making any determination at this time that Petitioner can
timely exhaust any claims prior to the expiration of the statute of
limitations.

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6) Petitioner is DIRECTED to file a status report regarding

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his progress in the state courts within thirty (30) days, and

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then every thirty (30) days thereafter until exhaustion is

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complete; and

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7) Within thirty (30) days after the final order of the

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California Supreme Court, Petitioner MUST FILE an amended

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petition in this Court including all exhausted claims.

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Petitioner is forewarned that failure to comply with this
Order will result in the Court’s vacating the stay.

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IT IS SO ORDERED.

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Dated:
ie14hj

January 3, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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