Valencia v. Martel

Filing 15

ORDER signed by Magistrate Judge Sheila K. Oberto on 8/23/2011 granting 12 Motion to Amend the petition to name Michael Martel as Respondent; directing Clerk to change name of Respondent; granting Motion to Stay and Abeyance re 11 , 13 , 14 ; staying action pending exhaustion of state court remedies and directing Petitioner to file periodic status reports. Case stayed. (Lundstrom, T)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DAVID J. VALENCIA, JR.,

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Petitioner,

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v.
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MICHAEL MARTEL,
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Respondent.
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1:11-cv—01066-AWI-SKO-HC
ORDER GRANTING PETITIONER’S
MOTION TO AMEND THE PETITION TO
NAME MICHAEL MARTEL AS RESPONDENT
(Doc. 12
ORDER DIRECTING THE CLERK TO
CHANGE THE NAME OF THE RESPONDENT
ORDER DEEMING PETITIONER’S
REQUEST FOR STATUTORY TOLLING TO
BE A MOTION FOR A STAY OF THE
PROCEEDINGS (DOC. 11)

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ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE
(Docs. 11, 13, 14)

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ORDER STAYING THE ACTION PENDING
EXHAUSTION OF STATE COURT
REMEDIES

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ORDER DIRECTING PETITIONER TO
FILE PERIODIC STATUS REPORTS

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Petitioner is a state prisoner proceeding pro se with a
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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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The matter has been referred to the Magistrate Judge pursuant to
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28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303.

Pending before

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the Court is Petitioner’s motion to amend the petition to name a
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proper respondent filed on July 8, 2011, and Petitioner’s

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responses to the Court’s order to show cause, which were filed on

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July 8 and 29, 2011.

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I.

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In response to the Court’s previous grant of leave to amend

Motion to Amend the Petition

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the petition, Petitioner requests that Michael Martel be named as

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Respondent in this matter.

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A petitioner seeking habeas relief must name the state
officer having custody of him or her as the respondent to the

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petition.

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Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996);

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Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th

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Cir.1994).

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is the warden of the prison because the warden has “day to day

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control over” the prisoner.

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F.2d 378, 379 (9th Cir. 1992).

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is proper.

Rule 2(a) of the Rules Governing Section 2254 Cases;

Normally, the person having custody of the prisoner

Brittingham v. United States, 982
Therefore, Petitioner’s request

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Accordingly, Petitioner’s motion for leave to amend the

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petition to name Michael Martel as Respondent in this matter will

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be granted, and the Clerk will be directed to change the name of

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Respondent to Michael Martel.

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II.

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In the original petition, Petitioner alleged that he is an

Response to the Order to Show Cause

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inmate of the San Quentin State Prison serving a sentence of

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twenty-five (25) years to life imposed on January 6, 2010, in the

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Tuolumne County Superior Court upon Petitioner’s conviction of

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corporal injury to a spouse in violation of Cal. Pen. Code

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§ 273.5(a).

Petitioner raised the following claims in the
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petition as to which state court remedies were exhausted:

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trial court’s failure to instruct on the defense of necessity

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violated his right to due process of law; 2) trial counsel’s

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failure to request an instruction on the necessity defense

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violated Petitioner’s rights under the Sixth and Fourteenth

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Amendments to the effective assistance of counsel; and 3) the

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sentencing court’s failure to strike at least one prior

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conviction resulted in a sentence that was disproportionately

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severe and grossly excessive in violation of Petitioner’s right

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to due process of law.

1) the

(Pet. 6-11.)

However, Petitioner also alleged violations of due process

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of law and ineffective assistance of counsel under the Sixth and

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Fourteenth Amendments based on the trial court’s admission of

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unspecified evidence concerning a nine-year-old matter involving

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a negotiated disposition that was relevant to impeach witness

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Kendall Long.

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(Pet. 13.)

On July 29, 2011, the Court issued an order to Petitioner to

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show cause why the petition should not be dismissed for failure

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to exhaust state court remedies as to the claim or claims

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concerning the negotiated disposition that should have been used

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to impeach witness Kendall Long.

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(Pet. 13.)

On July 8, 2011, Petitioner filed a response to the order to

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show cause and a motion requesting “statutory tolling”; on July

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13, 2011, Petitioner filed a supporting declaration and a further

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response to the order to show cause.

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documents to be a motion for a stay of the proceedings.

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11, 13, 14.)

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The Court DEEMS these

In the response, Petitioner states that the issue in

(Docs.

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question was featured as a footnote in Petitioner’s opening brief

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on direct appeal.

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(Doc. 11, 1.)

Further, Petitioner lists the following issues based on

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federal constitutional provisions that he seeks to raise in the

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petition but which have not yet been fully presented to the state

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courts: 1) a violation of due process by denial of Petitioner’s

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motion in limine to exclude as unduly prejudicial the testimony

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of a witness in a nine-year-old case; 2) a violation of due

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process based on the admission of the witness’s testimony without

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disclosure to the jury of impeachment evidence consisting of a

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negotiated disposition; 3) a violation of the right to the

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effective assistance of trial counsel by counsel’s failure to

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impeach the witness with evidence of the negotiated disposition;

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4) denial of the right to a fair trial and an impartial tribunal

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by the trial court’s failure to recuse itself from presiding over

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Petitioner’s trial after having previously signed documents

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evincing a belief in Petitioner’s guilt; 5) denial of the right

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to the effective assistance of counsel based on counsel’s failure

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to disqualify the trial judge; 6) denial of the right to the

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effective assistance of appellate counsel by appellate counsel’s

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failure to raise the issue of judicial bias; 7) ineffective

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assistance of trial counsel based on counsel’s failure to

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introduce a letter from Petitioner’s wife indicating that she

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accidentally bumped her own head while trying to enter her truck

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and drive while intoxicated; 8) a denial of due process based on

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the admission of prejudicial photographs, including a) an unduly

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enlarged view of the injuries suffered by Petitioner’s wife, and

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b) a view of Petitioner’s hands with tattoos and handcuffs; 9) a
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denial of the right to the effective assistance of counsel based

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on counsel’s failure to object to the admission of the unduly

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suggestive photographs; and 10) a hindrance of Petitioner’s right

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to a meaningful appeal based on Petitioner’s inability to obtain

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a transcript of a proceeding and a body attachment order

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concerning Petitioner’s wife, who told Petitioner that she was

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being harassed by the prosecution with respect to her testimony

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and was being pressured to persuade Petitioner to enter a guilty

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plea pursuant to a plea offer. (Doc. 11, 5-8.)

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On July 13, 2011, Petitioner filed a declaration in support

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of his motion for a stay which he had been unable to attach to

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the previously filed motion.

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(Doc. 13, 1.)

On July 29, 2011, Petitioner filed a further response to the

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order to show cause and a second motion requesting a stay and

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abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005).

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It is established that a petition for writ of habeas corpus

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may be filed in the trial court while an appeal is pending.

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Const. art. VI, § 10;

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(1995).

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2010, Petitioner’s appointed appellate counsel continued to

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advise Petitioner to wait to file a petition for writ of habeas

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corpus raising the ineffective assistance of counsel until after

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the conclusion of the direct appeal; counsel further advised that

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having the appellate court consider Petitioner’s petition for

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habeas relief at the same time it considered his appeal would not

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be helpful to his direct appeal and in fact would dilute the

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strength of the issues raised in the appeal.

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14, 6.)

Cal.

In re Carpenter, 9 Cal.4th 634, 645-46

However, correspondence shows that as late as October 6,

(Doc. 13, 3-5; doc.

The Supreme Court of California denied a petition for
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review on May 11, 2011; Petitioner declares, and correspondence

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reflects, that his receipt of notice of the denial was delayed

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until after May 24, 2011.

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did not know earlier about the issues he seeks to raise because

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there was a delay in receipt of the record on appeal until March

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31, 2011.

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own protection from March 8, 2010, through February 2, 2011

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(eleven months) with limited access to the law library.

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14, 9.)

Further, Petitioner declares that he

Petitioner was in administrative segregation for his

(Doc.

Petitioner filed a grievance concerning the restrictions

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on access to the law library, and he was ultimately granted “PLU

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status” with increased access commencing on or about July 15,

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2011.

(Doc. 14, 11.)

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III.

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A district court may not adjudicate a petition containing

Motion to Stay the Proceedings

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both exhausted and unexhausted claims.

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509, 522 (1982).

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limitations provided for by the Antiterrorism and Effective Death

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Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d), it is

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recognized that a district court has the inherent authority to

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exercise its discretion to stay a mixed petition to allow the

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petitioner to present unexhausted claims to the state court in

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the first instance and then return to federal court for review of

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the perfected petition.

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(2005).

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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

Rose v. Lundy, 455 U.S.

However, since the advent of the statute of

Rhines v. Weber, 544 U.S. 269, 275-77

Stay and abeyance are available only in limited

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unexhausted claims are not plainly meritless.

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Because of the underlying purposes of the AEDPA to reduce delays

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in the execution of state and federal criminal sentences and to

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encourage petitioners to seek relief initially from the state

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courts, a stay should endure for only a reasonable time and

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should be explicitly conditioned on the petitioner’s pursuit of

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state court remedies within a brief interval.

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Id. at 277-78.

Id.

The Supreme Court has not articulated what constitutes good
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

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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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Pace v. DiGuglielmo, 544

The Ninth Circuit has held that the

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 set forth specific facts tending to

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show a reasonable basis for confusion concerning the timeliness

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of the state court filings.

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involve ineffective assistance of both trial and appellate

The allegations of the petition

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counsel.

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collateral attack on his conviction were delayed by instructions

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given by Petitioner’s appellate counsel.

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Petitioner’s diligence in attempting to discern issues and to

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initiate exhaustion of state court remedies.

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that the unique circumstances of the present case constitute good

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cause for Petitioner’s failure to exhaust the unexhausted claims.

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It is evident that Petitioner’s efforts to mount a

The record reflects

The Court concludes

Further, the allegations of the petition tend to reflect an
absence of intentional delay.

Petitioner sought to raise the

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omitted issues during proceedings on direct appeal; Petitioner

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diligently combed the record for issues once appellate counsel

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relinquished the record; and Petitioner’s placement in segregated

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housing and other restrictions affected Petitioner’s ability to

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prepare state court petitions.

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claims or petitions in the trial court.

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exhaustion of state court remedies is under way.

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Petitioner has filed numerous
(Doc. 11, 5-8.)

Thus,

Further, it does not appear that the unexhausted claims are
plainly without merit.
Therefore, the Court will grant a stay of the proceedings so

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Petitioner can complete exhaustion of the additional claims

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sought to be raised in the initial petition and in the motion for

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a stay.

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However, the Court will not indefinitely hold the petition

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in abeyance.

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diligently to pursue his state court remedies and must file a

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status report every ninety (90) days advising the Court of the

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status of the state court proceedings.

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the state courts, Petitioner will be allowed thirty (30) days to

Rhines, 544 U.S. at 277.

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Petitioner must proceed

Following final action by

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notify the court of completion of exhaustion.

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with these instructions and time allowances will result in this

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Court’s vacating the stay nunc pro tunc to the date of this

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order.

Failure to comply

Rhines, 544 U.S. at 278.1

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IV.

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Accordingly, it is ORDERED that:

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1.

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Disposition

Petitioner's motion to stay the petition and hold the

exhausted claims in abeyance is GRANTED;
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The instant petition is STAYED pending exhaustion of

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Petitioner's state court remedies as to the additional claims set

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forth herein;

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3.

Petitioner is DIRECTED to file a status report within

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ninety (90) days of the date of service of this order advising

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the Court of the cases that have been filed in state court, the

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date the cases were filed, and any outcomes;

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4.

Petitioner is DIRECTED to file a new status report every

ninety (90) days thereafter; and
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Petitioner is GRANTED thirty (30) days time following

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the final order of the state courts in which to file a final

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status report and to seek to amend the petition in this

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proceeding to include the additional claims set forth above; and

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6.

Petitioner’s motion for leave to amend the petition to

name Michael Martel as Respondent in this matter is GRANTED; and
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The Clerk of Court is DIRECTED to change the name of

Respondent to Michael Martel.

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Petitioner is forewarned that the Court’s grant of the stay herein does
not resolve on the merits any issues that might be raised by a respondent
concerning timeliness, exhaustion, or other procedural matters relating to
Petitioner’s claims.

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Petitioner is forewarned that failure to follow this order

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will result in dismissal of the petition pursuant to Local Rule

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110.

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IT IS SO ORDERED.

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Dated:
ie14hj

August 23, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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