Perez v. Bitter

Filing 14

ORDER DENYING 2 Petitioner's Motion to Stay the Petition Pursuant to Rhines v. Weber; ORDER GRANTING Petitioner Thirty (30) Days From the Date of Service of This Order to Withdraw Petitioner's Unexhausted Claims and Seek a Kelly Stay; INFORMATIONAL ORDER to Petitioner Concerning Dismissal if Unexhausted Claims Are Not Withdrawn, signed by Magistrate Judge Sheila K. Oberto on 1/3/2012. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 CESAR MELGOZA PEREZ, 13 Petitioner, 14 15 16 17 v. M. D. BITTER, Warden, Respondent. 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—01766-LJO-SKO-HC ORDER DENYING PETITIONER’S MOTION TO STAY THE PETITION PURSUANT TO RHINES v. WEBER (DOC. 2) ORDER GRANTING PETITIONER THIRTY (30) DAYS FROM THE DATE OF SERVICE OF THIS ORDER TO WITHDRAW PETITIONER’S UNEXHAUSTED CLAIMS AND SEEK A KELLY STAY INFORMATIONAL ORDER TO PETITIONER CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT WITHDRAWN 19 20 21 22 Petitioner is a state prisoner proceeding pro se and in 23 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. 24 matter has been referred to the Magistrate Judge pursuant to 28 25 U.S.C. § 636(b)(1) and Local Rules 302 through 304. 26 before the Court is the petition and Petitioner’s ex parte motion 27 for a stay and abeyance of the petition, which were filed on 28 October 24, 2011. 1 The Pending 1 I. 2 Rule 4 of the Rules Governing § 2254 Cases in the United Screening the Petition 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 1990). 11 grounds of relief available to the Petitioner; 2) state the facts 12 supporting each ground; and 3) state the relief requested. 13 Notice pleading is not sufficient; rather, the petition must 14 state facts that point to a real possibility of constitutional 15 error. 16 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 17 Allison, 431 U.S. 63, 75 n.7 (1977)). 18 that are vague, conclusory, or palpably incredible are subject to 19 summary dismissal. 20 Cir. 1990). 21 Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 22 corpus either on its own motion under Habeas Rule 4, pursuant to 23 the respondent's motion to dismiss, or after an answer to the 24 petition has been filed. 25 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 26 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 27 A petition for habeas corpus should not be dismissed without 28 leave to amend unless it appears that no tenable claim for relief 2 1 can be pleaded were such leave granted. 2 F.2d 13, 14 (9th Cir. 1971). 3 Jarvis v. Nelson, 440 Petitioner alleges he is an inmate of the Kern Valley State 4 Prison (KVSP) located in Delano, California, serving a sentence 5 imposed in the Superior Court of the State of California for the 6 County of Stanislaus pursuant to Petitioner’s convictions on 7 March 11, 2009, of murder and assault by means of force likely to 8 produce great bodily injury with gang enhancements. 9 challenges his convictions. 10 Petitioner (Pet. 1-4.) The Court has previously dismissed without leave to amend 11 some claims to the extent that they rested on state law, 12 including the state law components of the following claims: his 13 fifth claim concerning cruel and unusual punishment; his sixth, 14 seventh, and eighth claims concerning the allegedly ineffective 15 assistance of counsel; and his ninth claim concerning the alleged 16 insufficiency of the evidence to support two enhancements. 17 (Docs. 10, 13.) 18 Petitioner raises the following claims as to which he 19 alleges that state court remedies have been exhausted: 1) denial 20 of Petitioner’s right to a fair trial in violation of the due 21 process protections of the Fifth and Fourteenth Amendments by 22 admission of the testimony of four witnesses who testified 23 pursuant to a plea agreement that coerced them to testify for the 24 prosecution; 2) denial of Petitioner’s Sixth and Fourteenth 25 Amendment right to a fair trial resulting from prejudicial error 26 in providing an incorrect instruction concerning corroboration of 27 accomplice testimony, and denial of Petitioner’s Sixth and 28 Fourteenth Amendment right to the effective assistance of counsel 3 1 if counsel failed to preserve the issue for appeal; 3) violation 2 of Petitioner’s Sixth and Fourteenth Amendment right to 3 confrontation by admission of an autopsy report; 4) denial of 4 Petitioner’s Fourteenth Amendment right to due process of law 5 resulting from the trial court’s compound errors of giving an 6 incomplete instruction concerning flight after being accused of a 7 crime in the absence of evidence to support the giving of the 8 instruction in the first instance; and 5) violation of 9 Petitioner’s Eighth Amendment protection against cruel and 10 unusual punishment under the Constitution by the trial court’s 11 sentencing Petitioner to fifty years to life. 12 24, 53-55, 63.) 13 (Pet. 4-6, 21-22, Petitioner raises the following additional claims which he 14 describes as newly discovered, unexhausted grounds: 6) denial of 15 Petitioner’s right to the effective assistance of counsel 16 guaranteed by the Sixth Amendment resulting from trial counsel’s 17 failure to request that a detective and a prosecutorial 18 investigator who were also principal witnesses against Petitioner 19 be excluded from sitting at the counsel table throughout the 20 trial; 7) denial of Petitioner’s right to the effective 21 assistance of counsel guaranteed by the Sixth Amendment by trial 22 counsel’s failure to object to and exclude photographs of the 23 deceased; 8) denial of Petitioner’s right under the Sixth 24 Amendment to the effective assistance of counsel by trial 25 counsel’s failure to object to the prosecutor’s a) vouching for 26 the credibility of witnesses and b) improper remarks concerning 27 Petitioner’s guilt before and during argument; and 9) denial of 28 Petitioner’s right under the Fourteenth Amendment resulting from 4 1 the insufficiency of the evidence to support convictions of the 2 enhancements of discharging, and being armed with, a firearm. 3 (Pet. 6-7.) 4 II. 5 On October 24, 2011, Petitioner filed notice of an ex parte Motion for Stay and Abeyance 6 motion to hold the petition for writ of habeas corpus in abeyance 7 along with a supporting declaration. 8 a stay of the action, including but not limited to a stay 9 pursuant to Rhines v. Weber, 544 U.S. 269, 276 (2005). (Doc. 2.) Petitioner seeks The Court 10 interprets Petitioner’s motion as including a request for not 11 only a Rhines stay, but also a so-called “Kelly” stay, which may 12 be granted without a showing of good cause. 13 A. Exhaustion of State Court Remedies 14 A petitioner who is in state custody and wishes to challenge 15 collaterally a conviction by a petition for writ of habeas corpus 16 must exhaust state judicial remedies. 17 The exhaustion doctrine is based on comity to the state court and 18 gives the state court the initial opportunity to correct the 19 state's alleged constitutional deprivations. 20 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 21 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 22 1988). 28 U.S.C. § 2254(b)(1). Coleman v. 23 A petitioner can satisfy the exhaustion requirement by 24 providing the highest state court with the necessary jurisdiction 25 a full and fair opportunity to consider each claim before 26 presenting it to the federal court, and demonstrating that no 27 state remedy remains available. 28 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. Picard v. Connor, 404 U.S. 270, 5 1 1996). 2 was given a full and fair opportunity to hear a claim if the 3 petitioner has presented the highest state court with the claim's 4 factual and legal basis. 5 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 6 (1992), superceded by statute as stated in Williams v. Taylor, 7 529 U.S. 362 (2000) (factual basis). 8 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 9 state court that he was raising a federal constitutional claim. 10 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 11 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 12 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 13 F.3d 1240, 1241 (9th Cir. 1998). 14 Supreme Court reiterated the rule as follows: 15 16 17 18 19 20 21 22 In Duncan, the United States 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. 23 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 24 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 25 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 26 Cir. 2001), stating: 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims 6 1 2 3 4 5 6 7 8 9 10 11 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. 12 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 13 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 14 2001). 15 Where none of a petitioner’s claims has been presented to 16 the highest state court as required by the exhaustion doctrine, 17 the Court must dismiss the petition. Raspberry v. Garcia, 448 18 F.3d 1150, 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 19 481 (9th Cir. 2001). The authority of a court to hold a mixed 20 petition in abeyance pending exhaustion of the unexhausted claims 21 has not been extended to petitions that contain no exhausted 22 claims. Raspberry, 448 F.3d at 1154. 23 A federal court cannot entertain a petition that is “mixed,” 24 or which contains both exhausted and unexhausted claims. Rose v. 25 Lundy, 455 U.S. 509, 510 (1982). A district court must dismiss a 26 mixed petition; however, it must give the petitioner the choice 27 of returning to state court to exhaust his claims or of amending 28 7 1 or resubmitting the habeas petition to present only exhausted 2 claims. 3 Budge, 419 F.3d 1013, 1016 (9th Cir. 2005). 4 Rose v. Lundy, 455 U.S. at 510 (1982); Jefferson v. Here, Petitioner’s sixth through ninth claims are admittedly 5 unexhausted because they were not presented to the California 6 Supreme Court. 7 a petition for review that raises the unexhausted claims. 8 115-50.) 9 petition that Petitioner proposes to file in state court. 10 The Court notes the petition filed here includes (Pet. The Court understands this petition to represent a Accordingly, the Court concludes that Petitioner has filed a 11 mixed petition. 12 be either to withdraw the unexhausted claims and proceed with 13 only the exhausted claims, or suffer dismissal, return to state 14 court to exhaust the unexhausted claims, and then file another 15 petition here. 16 17 B. Therefore, Petitioner’s options would normally Motion for a Stay Because the petition was filed after April 24, 1996, the 18 effective date of the Antiterrorism and Effective Death Penalty 19 Act of 1996 (AEDPA), the AEDPA applies to the petition. 20 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 21 1484, 1499 (9th Cir. 1997). 22 Lindh v. With respect to Petitioner’s request for a stay of the 23 petition, a district court has discretion to stay a petition 24 which it may validly consider on the merits. 25 544 U.S. 269, 276 (2005); 26 (9th Cir. 2009). 27 or under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). 28 Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009). Rhines v. Weber, King v. Ryan, 564 F.3d 1133, 1138-39 A petition may be stayed either under Rhines, 8 King v. 1 Under Rhines, the Court has discretion to stay proceedings; 2 however, this discretion is circumscribed by the Antiterrorism 3 and Effective Death Penalty Act of 1996 (AEDPA). 4 U.S. at 276-77. 5 abeyance [is] available only in limited circumstances” and “is 6 only appropriate when the district court determines there was 7 good cause for the petitioner’s failure to exhaust his claims 8 first in state court.” Rhines, 544 In light of AEDPA’s objectives, “stay and Id. at 277-78. 9 A petition may also be stayed pursuant to the procedure set 10 forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th 11 Cir. 2003). 12 files an amended petition deleting the unexhausted claims; 2) the 13 district court stays and holds in abeyance the fully exhausted 14 petition; and 3) the petitioner later amends the petition to 15 include the newly exhausted claims. 16 1133, 1135 (9th Cir. 2009). 17 allowed if the additional claims are timely. Under this three-step procedure: 1) the petitioner See, King v. Ryan, 564 F.3d However, the amendment is only Id. at 1140-41. 18 A stay pursuant to Rhines should be available only in the 19 limited circumstances where it is shown that 1) there was good 20 cause for the failure to have first exhausted the claims in state 21 court, 2) the claim or claims at issue potentially have merit, 22 and 3) there has been no indication that the petitioner has been 23 intentionally dilatory in pursuing the litigation. 24 U.S. at 277-78. 25 Rhines, 544 In view of the limited record before the Court at this stage 26 of the proceedings, the Court cannot conclude that Petitioner’s 27 unexhausted claims are without merit. 28 appear that Petitioner has been intentionally dilatory. 9 Further, it does not Although 1 his unexhausted claims have not been fully raised in the state 2 courts, Petitioner appears to have attempted to educate himself 3 concerning the law, obtain access to the law library, and obtain 4 assistance from other inmates. 5 The Supreme Court has not articulated what constitutes good 6 cause under Rhines, but it has stated that “[a] petitioner's 7 reasonable confusion about whether a state filing would be timely 8 will ordinarily constitute ‘good cause’ for him to file” a 9 “protective” petition in federal court. Pace v. DiGuglielmo, 544 10 U.S. 408, 416 (2005). 11 standard is a less stringent one than that for good cause to 12 establish equitable tolling, which requires that extraordinary 13 circumstances beyond a petitioner's control be the proximate 14 cause of any delay. 15 Cir. 2005). 16 stay-and-abeyance should be available only in limited 17 circumstances.” 18 see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), 19 cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276 20 (2009) (concluding that a petitioner’s impression that counsel 21 had exhausted a claim did not demonstrate good cause). 22 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); Petitioner asserts ignorance of the law, a failure of 23 appointed appellate counsel to raise the issues, and limited 24 prison resources as the causes of his delay in raising the 25 issues. 26 the lives of prisoners. 27 considered to qualify as good cause, then a Rhines stay would be 28 available in virtually every case in which a petitioner was However, these circumstances are everyday realities in If Petitioner’s assertions are 10 1 ignorant of the law or without counsel to represent him with 2 respect to discretionary, post-conviction proceedings. 3 would run counter to the directions in Rhines and Wooten that 4 stays be available only in limited circumstances. 5 This Accordingly, the Court concludes that because Petitioner has 6 not demonstrated good cause, Petitioner has not demonstrated his 7 entitlement to a stay under Rhines v. Weber, 544 U.S. 269, 277- 8 78. 9 The Court can stay the petition pursuant to Kelly v. Small, 10 315 F.3d 1063 (9th Cir. 2003), by using a three-step procedure: 11 1) the petitioner must file an amended petition deleting the 12 unexhausted claims; 2) the district court will stay and hold in 13 abeyance the fully exhausted petition; and 3) the petitioner will 14 later amend the petition to include the newly exhausted claims. 15 See, King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 16 the amendment is only allowed if the additional claims are 17 timely. 18 However, Id. at 1140-41.1 Petitioner will be given an opportunity to withdraw the 19 following claims in the petition: 20 right to the effective assistance of counsel guaranteed by the 21 Sixth Amendment resulting from trial counsel’s failure to request 22 that a detective and a prosecutorial investigator who were also 23 principal witnesses against Petitioner be excluded from sitting 24 at the counsel table throughout the trial; 7) denial of 6) denial of Petitioner’s 25 26 27 28 1 It is unclear whether Petitioner will have sufficient time 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, this Court is not making any determination at this time that Petitioner can timely exhaust any claims prior to the expiration of the statute of limitations. 11 1 Petitioner’s right to the effective assistance of counsel 2 guaranteed by the Sixth Amendment by trial counsel’s failure to 3 object to and to exclude photographs of the deceased; 8) denial 4 of Petitioner’s right under the Sixth Amendment to the effective 5 assistance of counsel by trial counsel’s failure to object to the 6 prosecutor’s a) vouching for the credibility of witnesses and b) 7 improper remarks concerning Petitioner’s guilt before and during 8 argument; and 9) denial of Petitioner’s right under the 9 Fourteenth Amendment resulting from the insufficiency of the 10 evidence to support convictions of the enhancements of 11 discharging a firearm and being armed with a firearm. 12 7.) 13 have the fully exhausted petition stayed pending exhaustion of 14 the other claims in state court. 15 petition without prejudice unless Petitioner withdraws the 16 unexhausted claims and proceeds with the exhausted claims in lieu 17 of suffering dismissal. (Pet. 6- Petitioner may withdraw these unexhausted claims and may The Court must dismiss the 18 III. 19 Accordingly, it is hereby ORDERED that: 20 1) Petitioner's motion for a stay of the instant petition 21 22 Disposition pursuant to Rhines v. Weber is DENIED; and 2) Petitioner is GRANTED thirty (30) days from the date of 23 service of this order to file a motion to withdraw the 24 unexhausted claims and to seek a stay of the fully exhausted 25 petition. 26 In the event Petitioner does not file such a motion, the 27 Court will assume Petitioner desires to return to state court to 28 exhaust the unexhausted claims and will therefore dismiss the 12 1 entire petition without prejudice.2 2 3 4 IT IS SO ORDERED. 5 Dated: ie14hj January 3, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 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. 13

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