Avila v. Martel

Filing 30

ORDER Granting Petitioner's 27 Motion for Stay and Abeyance; Vacating Hearing; and Setting Schedule for Exhaustion Briefing signed by Chief Judge Anthony W. Ishii on 09/07/2012. Joint Statement due by10/25/2012.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHNNY AVILA, JR.,

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Petitioner,
vs.
KEVIN CHAPPELL, Acting Warden
of San Quentin State Prison,
Respondent.

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Case No. 1:11-cv-01196-AWI-P
DEATH PENALTY CASE
Order Granting Petitioner’s
Motion for Stay and Abeyance;
Vacating Hearing; and Setting
Schedule for Exhaustion Briefing
HEARING DATE:
September 10, 2012
VACATED

On June 14, 2012, Petitioner Johnny Avila, Jr. (“Avila”) filed his federal

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petition for writ of habeas corpus, and a Motion for stay and abeyance of his

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federal proceedings. Doc. 27. Avila concurrently filed a second state habeas

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petition (Case No. S203288), presenting unexhausted claims, with the California

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Supreme Court. Respondent Kevin Chappell (“Warden”) filed an opposition to

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Avila’s motion for stay and abeyance August 27, and Avila filed a reply August

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29, 2012. This matter can be decided on the papers without need for a hearing.

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Avila asserts he has discovered, and included in his federal petition, claims

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that were not previously raised in state court (Claims 1, 2, 8, 31, 50, and 51), and

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expanded other claims previously pled (Claims 9 and 30). Avila states the state

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exhaustion petition, filed contemporaneously with his federal petition, includes

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all of his unexhausted claims.

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The claims in his federal petition which Avila admits are unexhausted

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present the following allegations: Claim 1 - Intellectual Disability (“Atkins

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claim”)1 ; Claim 2 - Cognitive Impairments Equal to Intellectual Disability;

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Claim 8 - Jury Misconduct, Material Misstatement at Selection and Outside

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Consultation during Penalty Deliberations; Claim 50 - Unconstitutional State

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Appellate and Post-Conviction Review; and Claim 51 - Ineffective Assistance of

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State Appellate and Habeas Counsel. The prior presented claims which are

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expanded allege: Claim 9 - Ineffective Assistance of Counsel at Guilt; and

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Claim 30 - Ineffective Assistance of Counsel at Penalty.

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Avila’s Motion for Stay and Abeyance
Avila alleges there is uncertainty over whether his state exhaustion petition

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will be considered properly filed, and thus whether it will toll the one-year

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statute of limitations. Avila contends there is good cause for this uncertainty,

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and also good cause for bringing the exhaustion petition at this time. Avila has

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asserted, in support of the timeliness of the claims in his exhaustion petition, that

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evidence was newly discovered through the provision of federal funding, and

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that post-conviction counsel was ineffective. Avila argues the vagueness and

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complexity of California’s procedural bar rules, as well as their random

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enforcement, makes it impossible to reliably predict the state court’s ruling on the

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timeliness of his exhaustion petition.

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Avila contends that his state exhaustion petition contains potentially

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meritorious claims, and that he has not engaged in intentionally dilatory

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litigation tactics. Avila argues his federal proceedings should be stayed pending

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the resolution of his state exhaustion petition.

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An Atkins claim asserts that a petitioner is mentally retarded and thus
exempt from execution under Atkins v. Virginia, 536 U.S. 304 (2002).
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Warden’s opposition

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The Warden agrees there is no evidence that Avila has intentionally

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engaged in dilatory litigation tactics, but contends he has not demonstrated good

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cause for his failure to previously exhaust the unexhausted claims in state court.

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The Warden asserts, contrary to Avila’s argument, that under Pace there is no

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reasonable confusion over the timeliness of Avila’s exhaustion petition. The

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Warden contends California’s timeliness rule is firmly established and regularly

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followed, and that Avila has failed to establish the absence of substantial delay

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for his exhaustion petition, or good cause for the delay, or that the unexhausted

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claims fall within an exception to the timeliness rule.
The Warden argues that several of Avila’s unexhausted claims reasonably

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could, and should, have been raised in the first state habeas petition. The

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Warden recommends rejection of the contention that other claims should be

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found timely due to the ineffectiveness of state post-conviction counsel, as Avila

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has not shown either deficient performance nor prejudice. The Warden also

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alleges that ineffectiveness of state post-conviction counsel is not available to

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allow consideration of Avila’s untimely claims because he is not constitutionally

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entitled to counsel on state collateral review.

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Lastly, the Warden contends that none of Avila’s unexhausted claims fall

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within any exception to California’s timeliness rules. Accordingly, the Warden

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argues that Avila has failed to establish good cause to stay the federal

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proceedings.

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Avila’s reply

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Avila asserts his federal counsel have an ethical duty to independently

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investigate and timely present his habeas claims in federal court. In the absence

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of any waiver of the exhaustion requirement by the Warden, competent habeas
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counsel who develop new claims and evidence with federal funds have no choice

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but to file simultaneous federal and state petitions and seek exhaustion, as a

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petitioner is prohibited under 28 U.S.C. § 2254(b)(1)(A) from proceeding with

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litigation of unexhausted claims in federal court. Avila contends he has followed

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the advice of the United States Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408

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(2005) and Rhines v. Weber, 544 U.S. 269 (2005).

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Avila asserts his state exhaustion petition is not necessarily untimely, as

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the California Supreme Court has ordered the Warden to file an informal

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response to the petition, signaling that further briefing is desired. Avila contends

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that although his exhaustion petition was filed after the presumptive timeliness

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date, it contains allegations of “triggering” facts, the diligence of counsel, and the

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timeliness issue. Under California procedures and law, so long as a petitioner’s

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claims are filed without significant delay, there is good cause for the delay, or one

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of the exceptions to the diligence rule apply, the state court will consider the

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claims on the merits.

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Avila argues that California’s timeliness standards are difficult, if not

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impossible, to predict since they are vague, inexact, and subject to judicial

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discretion. The timeliness standards are intentionally flexible and purposely

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inexact, to enable California courts to determine whether a petitioner has

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exercised due diligence. Avila contends his exhaustion petition does not merely

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reiterate prior claims, but asserts new claims, including an Atkins claim. Avila

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contends the California Supreme Court has yet to deny an Atkins claim as

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successive, untimely, or procedurally barred, but has either denied it on the

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merits or issued an order to show cause. Avila asserts he has a legitimate interest

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in fully litigating all the evidence developed by federal habeas counsel. Lastly,

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Avila alleges that ineffectiveness of post-conviction counsel may constitute good
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cause for failure to exhaust, Rhines v. Weber, 408 F. Supp. 2d 844, 848-849 (D.S.D.

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2005), or may be cause to excuse a procedural default. Martinez v. Ryan, __ U.S.

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__, 132 S. Ct. 1309, 1318 (2012).

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Standard for Granting Abeyance

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District courts have discretion to hold a federal mixed petition in abeyance

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to permit exhaustion of claims in state court. Rhines, 544 U.S. at 276. The high

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Court observed that “it likely would be an abuse of discretion for a district court

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to deny a stay and to dismiss a mixed petition if the petitioner [1] had good cause

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for his failure to exhaust, [2] his unexhausted claims are potentially meritorious,

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and [3] there is no indication that the petitioner engaged in intentionally dilatory

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litigation tactics.” Id. at 278. Where a petitioner satisfies these criteria, “the

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district court should stay, rather than dismiss, the mixed petition.” Id.

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The Warden adds that Rhines cautions “abeyance should be available only

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in limited circumstances,” id., 544 U.S. at 277, and courts should not routinely

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excuse the failure to present claims to the state court in the first instance. The

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Warden also offers a definition of “good cause” which Rhines did not explain.

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Acknowledging that “good cause” for abeyance is less stringent than an

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“extraordinary circumstances” standard, the Warden argues that at a minimum,

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“good cause” requires a showing of diligence, citing Ninth Circuit authority in

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another context. See Johnson v. Mammoth Recreations, Inc., 974 F.2d 604, 609 (9th

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Cir., 1992).

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Order

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Avila has established good cause for his Atkins claim. Although his first

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state habeas petition was filed on June 9, 2003, about one year after the Supreme

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Court issued the opinion in Atkins,, it was filed before California established the

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criteria for stating a valid claim under Atkins. See In Re Hawthorne, 35 Cal.4th 40
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(Feb. 10, 2005) (holding Cal. Penal Code § 1376, eff. Jan. 1, 2004, applies on post-

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conviction). State habeas counsel filed a confidential request for funds with the

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state court on March 13, 2003, but the court did not rule on the request until June

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18, 2003, nine days after Avila’s first habeas petition was filed. The funding

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request and order were both confidential so it is unclear what the purpose of the

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funds were or whether it was granted or denied. It is probable that under

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California’s policies and procedures in place at the time, Avila did not have the

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ability to establish facts which would have allowed him to present an Atkins

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claim to the state court during his first round of state post-conviction review.

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Further, the grant of abeyance stays Avila’s entire federal proceeding, so

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presentation of other unexhausted claims to the state court, whether or not there

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is good cause for each claim, will not additionally delay the federal petition.

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Avila’s motion to hold the federal proceedings in abeyance is granted.

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Abeyance will commence after the Court addresses the exhaustion status of the

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remaining claims in Avila’s federal petition. Counsel for the parties shall meet

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and confer within the next 30 days to discuss the exhaustion status of the claims

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in the petition and shall file a Joint Statement on Exhaustion within 45 days of the

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date of this order. Should the parties disagree about the exhaustion status of any

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claim, Avila shall concurrently file a separate pleading addressing the issue and

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stating where he believes the claim was presented to the state court.

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IT IS SO ORDERED.

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DATED:

September 7, 2012

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/s/ Anthony W. Ishii

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Chief United States District Judge

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