Walker v. Uribe

Filing 18

ORDER VACATING 15 Findings and Recommendations to Dismiss the Initial Petition; ORDER DENYING Petitioner's Renewed 17 Motion for a Rhines Stay of the First Amended Petition; ORDER GRANTING Petitioner Thirty (30) Days from the Date of Service of this Order to Withdraw the Unexhausted Claims in the 16 First Amended Petition signed by Magistrate Judge Sheila K. Oberto on 2/21/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL E. WALKER, II,
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Petitioner,
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v.
DOMINGO URIBE, JR., Warden,

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Respondent.

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1:11-cv—00585-AWI-SKO-HC
ORDER VACATING FINDINGS AND
RECOMMENDATIONS TO DISMISS THE
INITIAL PETITION (DOCS. 15, 1)
ORDER DENYING PETITIONER’S
RENEWED MOTION FOR A RHINES STAY
OF THE FIRST AMENDED PETITION
(DOCS. 17, 16)
ORDER GRANTING PETITIONER THIRTY
(30) DAYS FROM THE DATE OF
SERVICE OF THIS ORDER TO WITHDRAW
THE UNEXHAUSTED CLAIMS IN THE
FIRST AMENDED PETITION (DOC. 16)

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Petitioner is a state prisoner proceeding pro se and in

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forma pauperis with a petition pursuant to 28 U.S.C. § 2254.

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matter has been referred to the Magistrate Judge pursuant to 28

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U.S.C.§ 636(b)(1) and Local Rules 302 and 303.

The

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I.

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In the initial petition, Petitioner alleged that he was an

Background

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inmate of the Centinela State Prison1 serving a sentence of

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fifty-seven (57) years to life imposed on January 29, 2007, by

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the Stanislaus County Superior Court for convictions of attempted

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murder, brandishing a firearm at a peace officer, assault with a

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deadly weapon, and being a felon in possession of a firearm with

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gang enhancements.

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conviction and alleged four claims, including allegations that

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his trial counsel was ineffective, his appellate counsel was

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ineffective, Petitioner suffered a violation of his rights under

(Pet. 1.)

Petitioner challenged his

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the Miranda decision and the Fifth Amendment, and Petitioner

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suffered a violation of his right to due process of law

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guaranteed by the Sixth and Fourteenth Amendments as well as by

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the California Constitution by the use of an unduly suggestive

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pretrial identification procedure.

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(Doc. 1.)

However, the petition failed to allege that state judicial

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remedies had been exhausted as to these claims.

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Petitioner alleged that other issues had been presented on appeal

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and in a petition for review.

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cause, Petitioner informed that Court that he had filed a

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petition in the California Supreme Court raising the claims he

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sought to raise in this Court; and Petitioner requested a stay,

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pending the state court’s ruling, of the proceedings on the

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initial petition, which contained only claims as to which state

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court remedies had not been exhausted.

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Instead,

In response to an order to show

On December 13, 2011, the Magistrate Judge filed findings
recommendations to dismiss the petition.

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The docket reflects a notice of change of address to Pleasant Valley
State Prison in Coalinga, California, filed on July 11, 2011.

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In response, Petitioner filed a first amended petition (FAP)

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in which he raised not only the same unexhausted claims raised in

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the initial petition, but two additional claims which were not

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raised in the initial petition but as to which state court

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remedies had already been exhausted: (1) insufficient evidence to

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support a gang enhancement, and (2) a violation of his right to

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due process and a fair trial by the trial court’s denial of a

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defense motion to bifurcate proceedings on the gang enhancement

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from the remainder of the trial.

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Simultaneously, Petitioner filed objections to the findings

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and recommendations in which he concurs that the Magistrate

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Judge’s recommendation to dismiss the initial petition is legally

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correct, but seeks reconsideration of his motion for a stay in

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light of his having filed the FAP, which contains both exhausted

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and unexhausted claims.

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is dismissed, he will be time barred.

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because his FAP contains both exhausted and unexhausted claims,

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he is entitled to a “Rhines” stay.

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Petitioner alleges that if his petition
He further states that

Petitioner asks this Court to take judicial notice of the

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docket in case number S198647 presently pending in the California

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Supreme Court.

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Petitioner filed a petition for writ of habeas corpus.

The docket reflects that on December 12, 2011,

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II.

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Because Petitioner’s filing of the FAP renders the findings

Vacating the Findings and Recommendations

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and recommendations to dismiss the initial petition moot, the

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findings and recommendations filed on December 13, 2011, will be

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vacated.

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III.

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Renewed Motion for a Stay of the FAP
A.

Failure to Exhaust State Court Remedies

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A petitioner who is in state custody and wishes to challenge

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collaterally a conviction by a petition for writ of habeas corpus

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must exhaust state judicial remedies.

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The exhaustion doctrine is based on comity to the state court and

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gives the state court the initial opportunity to correct the

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state's alleged constitutional deprivations.

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Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509,

28 U.S.C. § 2254(b)(1).

Coleman v.

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518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir.

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1988).

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A petitioner can satisfy the exhaustion requirement by

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providing the highest state court with the necessary jurisdiction

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a full and fair opportunity to consider each claim before

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presenting it to the federal court, and demonstrating that no

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state remedy remains available.

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275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.

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1996).

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was given a full and fair opportunity to hear a claim if the

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petitioner has presented the highest state court with the claim's

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factual and legal basis.

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(1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10

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(1992), superceded by statute as stated in Williams v. Taylor,

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529 U.S. 362 (2000) (factual basis).

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Picard v. Connor, 404 U.S. 270,

A federal court will find that the highest state court

Duncan v. Henry, 513 U.S. 364, 365

Additionally, the petitioner must have specifically told the

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state court that he was raising a federal constitutional claim.

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Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669

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(9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala
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v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood,

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133 F.3d 1240, 1241 (9th Cir. 1998).

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States Supreme Court reiterated the rule as follows:

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In Duncan, the United

In Picard v. Connor, 404 U.S. 270, 275...(1971),
we said that exhaustion of state remedies requires that
petitioners "fairly presen[t]" federal claims to the
state courts in order to give the State the
"'opportunity to pass upon and correct’ alleged
violations of the prisoners' federal rights" (some
internal quotation marks omitted). If state courts are
to be given the opportunity to correct alleged violations
of prisoners' federal rights, they must surely be
alerted to the fact that the prisoners are asserting
claims under the United States Constitution. If a
habeas petitioner wishes to claim that an evidentiary
ruling at a state court trial denied him the due
process of law guaranteed by the Fourteenth Amendment,
he must say so, not only in federal court, but in state
court.

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Duncan, 513 U.S. at 365-366.

The Ninth Circuit examined the rule

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further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir.
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2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th
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Cir. 2001), stating:
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Our rule is that a state prisoner has not "fairly
presented" (and thus exhausted) his federal claims
in state court unless he specifically indicated to
that court that those claims were based on federal law.
See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir.
2000). Since the Supreme Court's decision in Duncan,
this court has held that the petitioner must make the
federal basis of the claim explicit either by citing
federal law or the decisions of federal courts, even
if the federal basis is "self-evident," Gatlin v. Madding,
189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v.
Harless, 459 U.S. 4, 7... (1982)), or the underlying
claim would be decided under state law on the same
considerations that would control resolution of the claim
on federal grounds, see, e.g., Hiivala v. Wood, 195
F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon,
88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d
at 865.
...
In Johnson, we explained that the petitioner must alert
the state court to the fact that the relevant claim is a
federal one without regard to how similar the state and
federal standards for reviewing the claim may be or how
obvious the violation of federal law is.
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Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as

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amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.

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2001).

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Here, Petitioner admits that he has not exhausted state

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court remedies as to his claims concerning the ineffective

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assistance of trial and appellate counsel, his admissions to the

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correctional officer, and an allegedly suggestive identification.

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B.

The Renewed Motion for a Stay

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 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir.

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2009).

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claims (a “mixed” petition) may be stayed to allow a petitioner

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to exhaust state court remedies either under Rhines, or under

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

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F.3d 1133, 1138-41 (9th Cir. 2009).

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Rhines v. Weber, 544 U.S.

A petition that contains both exhausted and unexhausted

King v. Ryan, 564

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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circumstances where 1) 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, 2) the petitioner has not engaged in

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abusive litigation tactics or intentional delay, and 3) the

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unexhausted claims are not plainly meritless.

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The underlying purposes of the AEDPA are to reduce delays in the

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execution of state and federal criminal sentences and to

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encourage petitioners to seek relief initially from the state

Rhines, 544

Stay and abeyance are available only in limited

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Id. at 277-78.

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courts.

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time and should be explicitly conditioned on the petitioner’s

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pursuit of state court remedies within a brief interval.

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Accordingly, a stay should endure for only a reasonable

Id.

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).

Pace v. DiGuglielmo, 544

The Ninth Circuit has held that the

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standard is less stringent than that for good cause to establish

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equitable tolling, which requires that extraordinary

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circumstances beyond a petitioner's control be the proximate

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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 (2009) (concluding

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that a petitioner’s impression that counsel had exhausted a claim

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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 has failed to set forth any specific facts

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to show a reasonable basis for confusion concerning the

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timeliness of the state court filings or for other good cause for

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a stay pursuant to Rhines.

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it does not appear that the factual bases for the unexhausted

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claims were previously unknown or unavailable to Petitioner.

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does not appear that there are any facts that would distinguish

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Petitioner’s case or otherwise limit his circumstances to reflect

Contrary to Petitioner’s assertion,

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It

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good cause and warrant a stay pursuant to Rhines.
Accordingly, the Court concludes that because Petitioner has

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not demonstrated good cause, Petitioner has not demonstrated his

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entitlement to a stay under Rhines v. Weber, 544 U.S. 269.

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The Court may stay the petition pursuant to Kelly v. Small,

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315 F.3d 1063 (9th Cir. 2003), by utilizing a three-step

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procedure:

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deleting the unexhausted claims; 2) the district court will stay

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and hold in abeyance the fully exhausted petition; and 3) the

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petitioner will later amend the petition to include the newly

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exhausted claims.

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Cir. 2009).

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additional claims are timely.

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1) the petitioner must file an amended petition

See, King v. Ryan, 564 F.3d 1133, 1135 (9th

However, the amendment is only allowed if the
Id. at 1140-41.2

Petitioner will be given an opportunity to withdraw the

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unexhausted claims in his petition and to have the fully

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exhausted petition stayed pending exhaustion of the other claims

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in state court.

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prejudice unless Petitioner withdraws the unexhausted claims and

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proceeds with the exhausted claims in lieu of suffering

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dismissal.

The Court must dismiss the petition without

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IV.

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Accordingly, it is hereby ORDERED that:

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1) The findings and recommendations filed on December 13,

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Disposition

2011, are VACATED as moot; 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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2)

Petitioner’s motion for a stay of the first amended

petition pursuant to Rhines v. Weber is DENIED; and

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3)

Petitioner is GRANTED thirty (30) days from the date of

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service of this order to file a motion to withdraw the

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unexhausted claims in the first amended petition and to seek a

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stay of the fully exhausted petition.

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does not timely file such a motion, the Court will assume

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Petitioner desires to return to state court to exhaust the

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unexhausted claims and will therefore dismiss the entire petition

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In the event Petitioner

without prejudice.3

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IT IS SO ORDERED.

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Dated:
ie14hj

February 21, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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Petitioner is informed that a dismissal for failure to exhaust will
not itself bar him from returning to federal court after exhausting his
available state remedies. However, this does not mean that Petitioner will
not be subject to the one-year statute of limitations imposed by 28 U.S.C. §
2244(d). Although the limitations period is tolled while a properly filed
request for collateral review is pending in state court, 28 U.S.C. §
2244(d)(2), it is not tolled for the time an application is pending in federal
court. Duncan v. Walker, 533 U.S. 167, 172 (2001).
Petitioner is further informed that the Supreme Court has held in
pertinent part:
[I]n the habeas corpus context it would be appropriate
for an order dismissing a mixed petition to instruct an
applicant that upon his return to federal court he is to
bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a)
and (b). Once the petitioner is made aware of the exhaustion
requirement, no reason exists for him not to exhaust all potential
claims before returning to federal court. The failure to comply
with an order of the court is grounds for dismissal with prejudice.
Fed. Rules Civ. Proc. 41(b).
Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, Petitioner is
forewarned that in the event he returns to federal court and files a mixed
petition of exhausted and unexhausted claims, the petition may be dismissed
with prejudice.

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