Spivey v. McDonald

Filing 35

ORDER Vacating The Court's Dismissal Of Petitioner's Motion For A Stay (Docs. 29 , 12 ), ORDER Deeming Petitioner's Motion For Leave To File An Amended Petition To Be A Motion For A Stay Of The Proceedings (Docs. 30 , 12 ), FINDING S And RECOMMENDATIONS To Deny Petitioner's Motion For A Stay (Docs. 30 , 12 ), Objections Deadline: Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 8/23/2013. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 9/30/2013.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 W. C. SPIVEY, III,,

Case No. 1:12-cv-00206-LJO-SKO-HC

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ORDER VACATING THE COURT’S
DISMISSAL OF PETITIONER’S MOTION
FOR A STAY (DOCS. 29, 12)

Petitioner,

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ORDER DEEMING PETITIONER’S MOTION
FOR LEAVE TO FILE AN AMENDED
PETITION TO BE A MOTION FOR A STAY
OF THE PROCEEDINGS (DOCS. 30, 12)

v.

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CONNIE GIPSON, Warden,
Respondent.

FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION FOR A STAY
(DOCS. 30, 12)
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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Petitioner is a state prisoner proceeding pro se and in forma

22 pauperis with a petition for writ of habeas corpus pursuant to 28
23 U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

24 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
25 Pending before the Court is Petitioner’s motion for leave to file an
26 amended petition for writ of habeas corpus that was filed on
27 February 12, 2013, which was accompanied by a proposed first amended
28 petition (FAP).

Respondent filed opposition to the motion to amend
1

1 the petition on March 8, 2013, and Petitioner filed a reply styled
2 as a traverse on March 22, 2013.

Petitioner filed a supplemental

3 reply without leave of Court on August 19, 2013 (doc. 34).

Because

4 the information contained in the supplemental reply is not
5 determinative of any issue pertinent to the outcome of the motion,
6 the Court exercises its discretion to consider Petitioner’s
7 supplemental reply without having permitted Respondent to file a
8 sur-reply.

Respondent will have an opportunity to address any of

9 the supplemental material in objections to these findings and
10 recommendations.
11

I.

Summary of the Proceedings in the Present Case

12

In the petition filed on February 13, 2012, Petitioner alleged

13 he was an inmate of the High Desert State Prison (HDSP) serving a
14 sentence of life without parole imposed by the Merced County
15 Superior Court for Petitioner’s conviction in May 2008 of first
16 degree murder with special circumstances.

Petitioner raised three

17 claims, including a suggestive photo identification, discovery
18 withheld by the prosecution, and jury selection error.
19 1 and 10, 1-5.)

(Pet., docs.

Petitioner alleged that he exhausted all state

20 court remedies as to these claims.
21

Although the initial petition was not verified, on March 19,

22 2012, Petitioner filed a verification of his petition with a copy of
23 the initial petition.

(Doc. 10.)

On the same date, Petitioner

24 filed a motion for leave to file an amended petition to raise the
25 following claims: 1) Petitioner was deprived of his right to have
26 every element of the offense proved, 2) the charges were
27 impermissibly broadened, 3) trial counsel was ineffective at
28 unspecified critical stages of the trial, and 4) there was
2

1 insufficient evidence to support a conviction of attempted robbery
2 or a special circumstance finding.

(Doc. 12, 1-2.)

Petitioner

3 contended that as to the claims sought to be added to the petition,
4 he had not exhausted his state court remedies.
5

(Id. at 1.)

The motion to amend the petition was construed as a motion to

6 stay the proceedings.

Respondent opposed the motion and answered

7 the petition on November 1, 2012.

In the answer, Respondent

8 addressed Petitioner’s three claims of trial error on the merits.
9 (Doc. 24, 6-30.)

Petitioner filed a reply to the opposition to the

10 motion for a stay, styled as a traverse, on November 19, 2012.

The

11 motion for a stay was dismissed as moot when the Court mistakenly
12 relied on a record that did not pertain to Petitioner and
13 incorrectly concluded that Petitioner had filed a petition in the
14 California Supreme Court which had been denied.

The Court set a

15 deadline for a motion to amend the petition, and in response,
16 Petitioner filed the motion to amend the petition that is before the
17 Court.
18

In his motion to amend the petition, Petitioner seeks to raise

19 the following four grounds: 1) Petitioner was deprived of his rights
20 to a fair trial and equal protection of the law by instructions that
21 permitted the jury to find Petitioner guilty on a felony murder
22 theory and thus to convict Petitioner of an allegedly willful murder
23 without the prosecution’s having to prove beyond a reasonable doubt
24 the willfulness element of murder; 2) the charges were broadened in
25 violation of Petitioner’s Fourteenth Amendment right to due process
26 of law when the element of willfulness was removed from the jury’s
27 consideration; 3) Petitioner’s Sixth and Fourteenth Amendment right
28 to the effective assistance of counsel was violated by trial
3

1 counsel’s failure to correct the charging information to remove the
2 “willful” element from count one, and to declare a mistrial when the
3 verdict omitted a finding on willfulness; and 4) Petitioner’s right
4 to due process of law was violated by the insufficiency of the
5 evidence to support a conviction for attempted robbery and thus to
6 satisfy the finding of special circumstances relating to counts one
7 and two.

(Doc. 31, 7-15.)

Respondent argues that the motion to amend the petition should

8

9 be denied because the claims Petitioner seeks to add are untimely,
10 do not relate back to the original habeas petition, and remain
11 unexhausted.

Respondent further contends that there is no basis for

12 equitable tolling of the statute of limitations.

Respondent argues

13 the motion to amend the petition should be denied because the
14 amendment would be futile.
15

II.

Background

16

Petitioner is serving a sentence of life without possibility of

17 parole that was imposed in the Merced County Superior Court (MCSC)
18 in May 2009 for first degree murder in the attempt to commit robbery
19 and with use of a knife, and attempted robbery with prior
20 convictions.

On appeal, the judgment was affirmed (case number

21 F058019) by the Court of Appeal of the State of California, Fifth
22 Appellate District (CCA).

(LD 1, 2; LD 4.)

The California Supreme

23 Court (CSC) denied Petitioner’s petition for review on November 10,
24 2010 (case number S186005).

(LD 6.)1

On February 17, 2011, Petitioner filed a habeas petition

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26 raising the prosecution’s failure to disclose material favorable
27
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1

“LD” refers to documents lodged in connection with the answer filed on November
1, 2012.

4

1 evidence.

(LD 7.)

2 December 8, 2010.

Petitioner’s signature on the petition is dated
(Id. at 6.)

There is no proof of service or

3 other documentation that would indicate when the petition was
4 provided to prison authorities for mailing or what type of mailing
5 system was used.
6

The petition was denied on April 4, 2011, by the MCSC, which

7 reasoned that the Petitioner’s contentions did not constitute newly
8 discovered evidence, all claims were raised or could have been
9 raised on appeal, and Petitioner had failed to establish an
10 exception to the rule barring reconsideration of the claims.

The

11 MCSC cited In re Harris, 5 Cal.4th 813, 825-26 (1993) and In re
12 Waltreus, 62 Cal.2d 218, 225 (1965).
13

(LD 8.)

Petitioner filed another habeas petition in the MCSC on

14 November 1, 2011, raising the four new claims he seeks to raise in
15 the present motion.

(LD 9, 1; LD 10, 1:18-19.)

The petition was

16 signed on several pages with a date of October 20, 2011.

Petitioner

17 has not provided any declaration concerning when he delivered the
18 petition to prison authorities or mailed the petition.

(LD 10,

19 1:18-19.)
20

On December 7, 2011, the MCSC denied the petition.

The MCSC

21 reasoned that Petitioner had filed a successive petition that did
22 not raise all claims in one timely filed habeas petition, and thus
23 the petition would be denied as abusive because Petitioner had not
24 demonstrated that a fundamental miscarriage of justice would result
25 if the MCSC declined to entertain his claims.
26 Clark 5 Cal.4th 750, 797 (1993).
27

The MCSC cited In re

(LD 10.)

Petitioner’s third state habeas petition was filed in the CCA

28 on January 10, 2012 (case number F064031), and raised the four new
5

1 claims.

(LD 11.)

2 (Id. at 6.)

The petition form is dated December 12, 2011.

The attached proof of service by mail indicates that

3 Petitioner deposited an unspecified document in the mail deposit box
4 at High Desert State Prison on December 12, 2011.

Also attached to

5 the petition form is a petition and memorandum of points and
6 authorities which bears the date of October 20, 2011, next to the
7 signature.

(Id., attachment at 14.)

A motion for appointment of

8 counsel, verification, supporting declaration, and declaration of
9 service by mail of the petition and motion for counsel attached to
10 the end of the petition are dated January 5, 2012.

(LD 11.)

A

11 “CDC-119” log of “SPECIAL PURPOSE LETTERS” reflects that on January
12 6, 2012, a letter in category “193” was sent to the CCA from the
13 prison.

(Doc. 34, 9.)

The petition was summarily denied without a

14 statement of reasons or citation of authority on February 3, 2012.
15 (LD 12.)
16

The Court takes judicial notice of the docket of the CCA in the

17 Petitioner’s third habeas proceeding of In re W. C. Spivey III, case
18 number F064031.

The docket reflects that after the petition was

19 denied on February 3, 2012, the CCA received correspondence from
20 Petitioner concerning a request for a ninety-day extension of time
21 on February 6, 2012, and a letter advising the CCA of Petitioner’s
22 new cell number on February 9, 2012.

The “CDC-119” log shows that

23 Petitioner’s letters in categories “1” and “193” were sent from the
24 institution to the CCA on February 1 and 6, 2012.
25

(Doc. 34, 9.)

On February 8, 2012, Petitioner filed his petition here

26 alleging the three original claims concerning an allegedly
27 suggestive pretrial photographic line-up, denial of a motion for new
28 trial based on Brady error, and denial of Petitioner’s
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1 Batson motion to dismiss the jury panel.

(Doc. 1, 25.)2

On March

2 19, 2012, Petitioner filed his motion to amend the federal petition
3 and for a stay of the proceedings to exhaust his four new claims in
4 state court. (Docs. 12, 13.)

The CDC-119 log of special purpose

5 letter shows that Petitioner sent correspondence to this Court on
6 March 14 and 15, 2012.

(Doc. 34, 9.)

On March 28, 2012, Petitioner’s fourth state habeas petition

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8 was stamped filed in the MCSC.

(LD 13.)

The CDC-119 log of special

9 purpose letters shows that an outgoing letter in category “193” was
10 sent from the prison to the MCSC on March 26, 2012.

(Doc. 34, 9.)

11 Petitioner raised his four new claims in the petition, which was
12 denied on May 8, 2012.

The MCSC reasoned that since the petition

13 raised claims that were raised and rejected by the MCSC in a prior
14 petition, the remedy was to file a new petition in the Court of
15 Appeal.

The MCSC cited In re Clark, 5 Cal.4th 750, 767-68 (1993).

16 (LD 13, LD 14.)
The CCA docket reflects that on March 29, 2012, the CCA filed a

17

18 letter from Petitioner requesting a copy of the face sheet of the
19 habeas petition filed in the CCA; Petitioner was mailed a copy of
20 the face sheet.

On June 21, 2012, this Court directed Respondent to

21 respond to the federal petition and to address the motion for a
22 stay.

(Doc. 13.)

The CCA docket reflects that Petition filed a change of address

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24 on July 12, 2012.

A “CDCR 119 CARD” reflects that mail from

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Petitioner executed a declaration under penalty of perjury that he had mailed
the petition; the declaration was executed on February 8, 2012. (Doc. 1, 25.)
The CDC-119 log of special purpose letters reflects that outgoing mail in category
“193” was sent to this Court on February 9, 2012. (Doc. 34, 9.) The Court will
infer that Petitioner surrendered the petition to prison authorities on February
8, 2012, the date of signature.

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1 Petitioner was sent from the prison to the Supreme Court Clerk on
2 July 9, 2012.
3

(Doc. 34, 7.)

The CCA docket reveals that on August 3, 2012, a letter from

4 Petitioner was filed and that Petitioner was mailed a “2nd copy of
5 the denial order”.

A Corcoran “CDCR 119 CARD” confirms that

6 Petitioner sent correspondence to a clerk of an unspecified court on
7 August 1, 2012.

(Doc. 34, 7.)

On September 17, 2012, the CCA

8 received a letter from Petitioner requesting the status of the case;
9 the docket reflects that the CCA responded by “mailing another copy
10 of the denial order.”
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On November 1, 2012, Respondent filed an answer to the federal

12 petition and an opposition to the motion for stay and abeyance.
13 Petitioner filed a traverse on November 19, 2012.

The motion for

14 stay was dismissed as moot on January 17, 2013, and Petitioner was
15 directed to file a motion for leave to amend the petition.

The

16 instant motion was filed with a proposed first amended petition on
17 February 12, 2013.
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III.

Exhaustion of State Court Remedies, Deeming Petitioner’s
Motion for Leave to Amend to be a Motion for a Stay,
and Reconsideration of Petitioner’s Motion for a Stay
and Abeyance

A petitioner who is in state custody and wishes to challenge

22 collaterally a conviction by a petition for writ of habeas corpus
23 must exhaust state judicial remedies.

28 U.S.C. ' 2254(b)(1).

The

24 exhaustion doctrine is based on comity to the state court and gives
25 the state court the initial opportunity to correct the state's
26 alleged constitutional deprivations.

Coleman v. Thompson, 501 U.S.

27 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v.
28 Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 1988).
8

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A petitioner can satisfy the exhaustion requirement by

2 providing the highest state court with the necessary jurisdiction a
3 full and fair opportunity to consider each claim before presenting
4 it to the federal court, and demonstrating that no state remedy
5 remains available.

Picard v. Connor, 404 U.S. 270, 275-76 (1971);

6 Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996).

A federal court

7 will find that the highest state court was given a full and fair
8 opportunity to hear a claim if the petitioner has presented the
9 highest state court with the claim's factual and legal basis.
10 Duncan v. Henry, 513 U.S. 364, 365 (1995) (legal basis); Kenney v.
11 Tamayo-Reyes, 504 U.S. 1, 9-10 (1992), superceded by statute as
12 stated in Williams v. Taylor, 529 U.S. 362 (2000) (factual basis).
13

Additionally, the petitioner must have specifically told the

14 state court that he was raising a federal constitutional claim.
15 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669
16 (9th Cir. 2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v.
17 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 F.3d
18 1240, 1241 (9th Cir. 1998).

In Duncan, the United States Supreme

19 Court reiterated the rule as follows:
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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
9

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court.

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

The Ninth Circuit examined the rule

3 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000),
4 as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir.
5 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.

21 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as amended
22 by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 2001).
23

Where none of a petitioner=s claims has been presented to the

24 highest state court as required by the exhaustion doctrine, the
25 Court must dismiss the petition.

Rasberry v. Garcia, 448 F.3d 1150,

26 1154 (9th Cir. 2006); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.
27 2001).

The authority of a court to hold a mixed petition in

28 abeyance pending exhaustion of the unexhausted claims has not been
10

1 extended to petitions that contain no exhausted claims.

Rasberry,

2 448 F.3d at 1154.
3

It is undisputed that Petitioner has failed to exhaust his

4 state court remedies as to the claims which he seeks to add to the
5 petition (“new claims”).

Petitioner initially attempted to obtain a

6 stay of this proceeding to exhaust state court remedies as to the
7 new claims.

A review of his motion to add unexhausted claims to the

8 petition (doc. 12), filed on March 19, 2012, shows that although
9 Petitioner denominated the motion as an attempt to add unexhausted
10 claims, the substance of the motion was an application to stay the
11 fully exhausted claims pending exhaustion of the unexhausted claims,
12 followed by amendment of the original petition to add the newly
13 exhausted claims.
14

(Doc. 12, 1.)

Petitioner cited Pliler v. Ford, 542 U.S. 225, 230-31 (2004),

15 in which the Court discussed a stay-and-abeyance procedure employed
16 in the Ninth Circuit for habeas petitions that contained both
17 exhausted and unexhausted claims (“mixed petitions”).

The procedure

18 involves dismissing any unexhausted claims from the petition,
19 staying the remaining claims pending exhaustion of the unexhausted
20 claims in state court, and amendment to add the newly exhausted
21 claims that relate back to the original petition.
22

Id.

Because Petitioner sought a stay to permit exhaustion, the

23 Court construed his initial motion to amend as a motion for a stay
24 and permitted the parties to brief the motion.

However, due to this

25 Court’s later error, Petitioner’s motion for a stay was dismissed
26 because the Court mistakenly concluded that Petitioner had exhausted
27 his new claims.

The Court never considered Petitioner’s motion for

28 a stay on the merits.

Petitioner sought to amend his petition only
11

1 when the Court mistakenly dismissed the motion for a stay and
2 directed Petitioner instead to file a motion to amend the petition.
3

A court has the inherent power to control its docket and the

4 disposition of its cases with economy of time and effort for both
5 the Court and the parties.

Landis v. North American Co., 299 U.S.

6 248, 254-55 (1936); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th
7 Cir. 1992).

Here, the motion to amend the pleadings was premature.

8 The Court concludes that the appropriate and most economical course
9 of action is to vacate the Court’s erroneous order of dismissal of
10 the stay motion and to consider that motion on the merits in the
11 first instance, in light of all the papers filed in connection with
12 that motion and the submissions relating to the motion to amend.
13 Accordingly, the Court’s earlier order dismissing Petitioner’s
14 motion for a stay (doc. 29) is VACATED.
15

Petitioner’s motion for leave to file a first amended petition

16 is DEEMED to be a motion for a stay, which the Court will now
17 consider by reviewing the merits of the motion in the first
18 instance.

The Court has considered all the papers submitted by both

19 parties in connection with Petitioner’s motions for a stay and for
20 leave to file a first amended petition.
21

IV.

Jurisdiction of the Magistrate Judge

22

A magistrate judge has jurisdiction to determine matters that

23 are non-dispositive of a claim or defense of a party.

28 U.S.C. §

24 636(b)(1); Fed. R. Civ. P. 72; Maisonville v. F2 America, Inc., 902
25 F.2d 746, 747 (9th Cir. 1990).

Section 636(b)(1)(A) lists those

26 motions which may not be determined by a magistrate judge, but a
27 magistrate judge may determine any motion that is neither listed nor
28 analogous to a motion listed in that category.
12

United States v.

1 Rivera-Guerrero, 377 F.3d 1064, 1067-68 (9th Cir. 2004).

A

2 dispositive order is one which conclusively determines a disputed
3 question affecting the pendency of a claim or defense of a party.
4 Id. at 1068-69.

In determining a magistrate judge’s authority, a

5 court considers the effect of the motion being brought in order to
6 determine whether it is properly characterized as dispositive or
7 non-dispositive of a claim or defense of a party.
8 Rivera-Guerrero, 377 F.3d at 1068.

United States v.

Where the effect of a denial of

9 a motion to amend to assert a compulsory counterclaim was to bar
10 defendants’ recovery from plaintiff on the claim, the decision was
11 dispositive.

See, Hunt Energy Corp. v. Crosby-Mississippi Res.,

12 Ltd., 732 F.Supp. 1378, 1389 n.18 (S.D.Miss. 1989).
13

Here, although the Court considers the Petitioner’s motion for

14 a stay to permit exhaustion of unexhausted claims, the effect of a
15 denial of that motion is essentially to foreclose Petitioner’s new
16 claims.

A denial based on futility of amendment would forever bar

17 the Petitioner’s new claims.

Thus, with respect to the merits of

18 the motion, the Magistrate Judge proceeds by way of findings and
19 recommendations.
20

V.

Petitioner’s Motion for Stay and Abeyance

21

Petitioner’s moving papers identify the new claims and seek a

22 stay to permit exhaustion of the new claims.

(Doc. 12.)

Respondent

23 opposes the motion alleging Petitioner has failed to establish good
24 cause for his failure to exhaust the claims first in state court.
25 (Doc. 26.)

Petitioner’s reply details Petitioner’s efforts to

26 ascertain the status of his state habeas corpus and to pursue his
27 state court remedies.

(Docs. 28, 33, 34.)

28 ///
13

A.

1
2

Stay pursuant to Rhines v. Weber

Because the petition was filed after April 24, 1996, the

3 effective date of the Antiterrorism and Effective Death Penalty Act
4 of 1996 (AEDPA), the AEDPA applies to the petition.

Lindh v.

5 Murphy, 521 U.S. 320, 327 (1997); Jeffries v. Wood, 114 F.3d 1484,
6 1499 (9th Cir. 1997).
7

A district court has discretion to stay a petition which it may

8 validly consider on the merits.

Rhines v. Weber, 544 U.S. 269, 276

9 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009).

A

10 petition may be stayed either under Rhines, or under Kelly v. Small,
11 315 F.3d 1063 (9th Cir. 2003).
12

King v. Ryan, 564 F.3d at 1138-41.

Under Rhines, the Court’s discretion to stay proceedings is

13 circumscribed by the AEDPA.

Rhines, 544 U.S. at 276-77.

In light

14 of the AEDPA=s objectives, Astay and abeyance [is] available only in
15 limited circumstances@ and Ais only appropriate when the district
16 court determines there was good cause for the petitioner=s failure to
17 exhaust his claims first in state court.@

Id. at 277-78.

A stay of

18 a mixed petition pursuant to Rhines is required only if 1) the
19 petitioner has good cause for his failure to exhaust his claims in
20 state court; 2) the unexhausted claims are potentially meritorious;
21 and 3) there is no indication that the petitioner intentionally
22 engaged in dilatory litigation tactics.
23

Id.

The Supreme Court has not articulated what constitutes good

24 cause under Rhines, but it has stated that A[a] petitioner's
25 reasonable confusion about whether a state filing would be timely
26 will ordinarily constitute >good cause= for him to file@ a Aprotective@
27 petition in federal court.
28 (2005).

Pace v. DiGuglielmo, 544 U.S. 408, 416

The standard is a less stringent one than that for good
14

1 cause to establish equitable tolling, which requires that
2 extraordinary circumstances beyond a petitioner's control be the
3 proximate cause of any delay.
4 (9th Cir. 2005).

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

The Ninth Circuit has recognized, however, that Aa

5 stay-and-abeyance should be available only in limited circumstances.@
6 Id. at 661 (internal quotation marks omitted); see, Wooten v.
7 Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert.
8 denied, -- U.S. --, 129 S.Ct. 2771 (2009) (a petitioner=s impression
9 that counsel had exhausted a claim did not demonstrate good cause).
10 The principles of Rhines must be applied with an eye toward the
11 AEDPA=s dual purposes of reducing delays in executing state and
12 federal criminal sentences and streamlining federal habeas
13 proceedings by increasing a petitioner=s incentive to exhaust all
14 claims in state court.
15

Wooten v. Kirkland, 540 F.3d at 1024.

In his first motion seeking to add unexhausted claims to the

16 petition, Petitioner did not set forth any factual basis for a stay.
17 (Doc. 12.)

In response to the opposition to the motion, Petitioner

18 stated that he was never notified of “the ruling on 2/3/2012.”
19 (Doc. 28, 1.)

Petitioner submitted documentation to illustrate his

20 efforts to exhaust state court remedies, including what appears to
21 be his undated letter to the CCA clerk asking for a copy of the
22 petition’s face sheet reflecting the date the petition for writ was
23 received and filed (doc. 28, 3); a copy of the face sheet of
24 Petitioner’s habeas petition filed in the CCA (case number F064031)
25 on January 10, 2012 (doc. 28, 5); a copy of a letter to the clerk of
26 the CCA dated July 31, 2012, in which Petitioner referred to case
27 number F064031, stated he had not heard anything regarding the
28 status of the ruling, set forth a declaration stating he had not
15

1 received a ruling on the petition, and asked for a notice of ruling
2 or permission to withdraw his petition without prejudice to refiling
3 (doc. 28, 6-7); and a copy of Petitioner’s petition for review (doc.
4 28, 8-37).

There are no further arguments or submissions in the

5 motion to amend and reply to the opposition to the motion to amend.
6

Petitioner’s showing of good cause is, therefore, the delay he

7 experienced in receiving the CCA’s denial of Petitioner’s habeas,
8 which Petitioner alleges lasted from February 3, 2012, when the
9 petition was summarily denied, until an uncertain date after August
10 3, 2012 or September 17, 2012, when the CCA mailed to Petitioner
11 copies of the denial order.

However, it does not appear that any

12 delay in 2012 obstructed or prevented exhaustion of state court
13 remedies because Petitioner did not seek to exhaust his claims in
14 the California Supreme Court after he received notice of the CCA’s
15 denial of his habeas petition.

Instead, Petitioner returned to the

16 MCSC, where he had already raised the new claims and had received a
17 denial based on the successive nature of the petition.
18

It is undisputed that Petitioner has not attempted to present

19 his new claims to the California Supreme Court.

Thus, although

20 Petitioner suffered some delay in receiving the ruling from the
21 Court of Appeal, Petitioner continued his exhaustion of state court
22 remedies, filed an additional petition in the trial court before he
23 received notice of the CCA’s ruling, and never sought to present his
24 new claims to the state’s highest court.

Under these circumstances,

25 Petitioner has not shown good cause for failing to exhaust his state
26 court remedies earlier.

Accordingly, Petitioner’s request for a

27 Rhines stay should be denied.
28 ///
16

B.

1
2

Kelly Stay

A petition may also be stayed pursuant to the procedure set

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

Under

4 this three-step procedure: 1) the petitioner files an amended
5 petition deleting the unexhausted claims; 2) the district court
6 stays and holds in abeyance the fully exhausted petition; and 3) the
7 petitioner later amends the petition to include the newly exhausted
8 claims.

See, King v. Ryan, 564 F.3d at 1135.

However, the

9 amendment is only allowed if the additional claims are timely.

Id.

10 at 1140-41.
11

A stay under Rhines permits a district court to stay a mixed

12 petition and does not require that unexhausted claims be dismissed
13 while the petitioner attempts to exhaust them in state court.

In

14 contrast, a stay pursuant to the three-step Kelly procedure allows a
15 district court to stay a fully exhausted petition, and it requires
16 that any unexhausted claims be dismissed.
17 654, 661 (9th Cir. 2005).

Jackson v. Roe, 425 F.3d

In this circuit it is recognized that the

18 Kelly procedure remains available after the decision in Rhines and
19 is available without a showing of good cause.

King v. Ryan, 564

20 F.3d at 1140.
21

However, a petitioner’s use of Kelly’s three-step procedure is

22 subject to the requirement of Mayle v. Felix, 545 U.S. 644 (2005),
23 that any newly exhausted claims that a petitioner seeks to add to a
24 pending federal habeas petition must be timely or relate back to
25 claims contained in the original petition that were exhausted at the
26 time of filing.

King v. Ryan, 564 F.3d at 1143.

Respondent argues

27 that Petitioner’s new claims are unexhausted and untimely, and do
28 not relate back to exhausted claims that were alleged in the
17

1 original federal habeas corpus petition.

Thus, to stay the petition

2 for exhaustion of claims that are untimely and would not relate back
3 would be pointless, and any attempt to amend the petition to state
4 the new claims would be futile.
1.

5
6

Timeliness of the New Claims

A Kelly stay may be denied where the petitioner’s new claims

7 are deemed to be untimely and do not relate back to exhausted
8 claims.
9

King v. Ryan, 564 F.3d at 1141-42.

The AEDPA provides a one-year period of limitation in which a

10 petitioner must file a petition for writ of habeas corpus.
11 U.S.C. § 2244(d)(1).
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

28

As amended, subdivision (d) reads:

(1) A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.
The limitation period shall run from the latest of –
(A) the date on which the judgment became final
by the conclusion of direct review or the expiration of
the time for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if
the applicant was prevented from filing by such State
action;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme Court,
if the right has been newly recognized by the Supreme Court
and made retroactively appicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim
or claims presented could have been discovered through the
exercise of due diligence.
(2) The time during which a properly filed application for
State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation
18

1

under this subsection.

2 28 U.S.C. § 2244(d).
3
4

a.

Commencement of the Limitations Period

Under § 2244(d)(1)(A), the “judgment” refers to the sentence

5 imposed on the petitioner.
6 (2007).

The last sentence was imposed on Petitioner on May 21,

7 2009.
8

Burton v. Stewart, 549 U.S. 147, 156-57

(LD 16, 489.)

Under § 2244(d)(1)(A), a judgment becomes final either upon the

9 conclusion of direct review or the expiration of the time for
10 seeking such review in the highest court from which review could be
11 sought.

Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

12 The statute commences to run pursuant to § 2244(d)(1)(A) upon either
13 1) the conclusion of all direct criminal appeals in the state court
14 system, followed by either the completion of denial of certiorari
15 proceedings before the United States Supreme Court; or 2) if
16 certiorari was not sought, then by the conclusion of all direct
17 criminal appeals in the state court system followed by the
18 expiration of the time permitted for filing a petition for writ of
19 certiorari.

Wixom, 264 F.3d at 897 (quoting Smith v. Bowersox, 159

20 F.3d 345, 348 (8th Cir. 1998), cert. denied, 525 U.S. 1187 (1999)).
21 Neither party has indicated that Petitioner sought certiorari from
22 the United States Supreme Court.
23

Here, Petitioner’s direct criminal appeals in the state court

24 system concluded when his petition for review was denied by the
25 California Supreme Court on November 10, 2010.
26 for seeking certiorari was ninety days.

The time permitted

Supreme Court Rule 13;

27 Porter v. Ollison, 620 F.3d 952, 958-59 (9th Cir. 2010); Bowen v.
28 Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
19

1

The Court will apply Fed. R. Civ. P. 6(a) in calculating the

2 pertinent time periods.

See, Waldrip v. Hall, 548 F.3d 729, 735 n.2

3 (9th Cir. 2008), cert. denied, 130 S.Ct. 2415 (2010).

Applying Fed.

4 R. Civ. P. 6(a)(1)(A), the day of the triggering event is excluded
5 from the calculation.

Thus, the ninety-day period commenced on

6 November 11, 2010, the day following the California Supreme Court’s
7 denial of review.

Further applying Rule 6(a)(1)(A), which requires

8 counting every day, the ninetieth day was February 8, 2011.

Thus,

9 the judgment became final within the meaning of § 2244(d)(1)(A) on
10 February 8, 2011.

Therefore, the limitation period began to run on

11 February 9, 2011, and, absent any tolling, concluded one year later
12 on February 8, 2012.
b)

13
14

Statutory Tolling

Title 28 U.S.C. § 2244(d)(2) states that the “time during which

15 a properly filed application for State post-conviction or other
16 collateral review with respect to the pertinent judgment or claim is
17 pending shall not be counted toward” the one-year limitation period.
18 28 U.S.C. § 2244(d)(2).
19

An application for collateral review is “pending” in state

20 court “as long as the ordinary state collateral review process is
21 ‘in continuance’- i.e., ‘until the completion of’ that process.”
22 Carey v. Saffold, 536 U.S. 214, 219-20 (2002).

In California, this

23 generally means that the statute of limitations is tolled from the
24 time the first state habeas petition is filed until the California
25 Supreme Court rejects the petitioner’s final collateral challenge,
26 as long as the petitioner did not “unreasonably delay” in seeking
27 review.

Id. at 221-23; accord, Nino v. Galaza, 183 F.3d 1003, 1006

28 (9th Cir. 1999).
20

1

The statute of limitations is not tolled from the time a final

2 decision is issued on direct state appeal and the time the first
3 state collateral challenge is filed because there is no case
4 “pending” during that interval.

Nino v. Galaza, 183 F.3d at 1006;

5 see, Lawrence v. Florida, 549 U.S. 327, 330-33 (2007) (holding that
6 the time period after a state court’s denial of state post7 conviction relief and while a petition for certiorari is pending in
8 the United States Supreme Court is not tolled because no application
9 for state post-conviction or other state collateral review is
10 pending).
11 2011.

Here, the limitation period commenced on February 9,

Petitioner’s first state habeas petition, which alleged Brady

12 error, was stamped as filed in the MCSC on February 17, 2011.
13

Habeas Rule 3(d) provides that a filing by a prisoner is timely

14 if deposited in the institution’s internal mailing system on or
15 before the last day for filing.

The rule requires the inmate to use

16 the custodial institution’s system designed for legal mail; timely
17 filing may be shown by a declaration in compliance with 28 U.S.C.
18 § 1746 or by a notarized statement setting forth the date of deposit
19 and verifying prepayment of first-class postage.
20

Id.

Habeas Rule 3(d) reflects the “mailbox rule,” initially

21 developed in case law, pursuant to which a prisoner's pro se habeas
22 petition is "deemed filed when he hands it over to prison
23 authorities for mailing to the relevant court.”

Houston v. Lack,

24 487 U.S. 266, 276 (1988); Huizar v. Carey, 273 F.3d 1220, 1222 (9th
25 Cir. 2001).
26 alike.

The mailbox rule applies to federal and state petitions

Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010)

27 (citing Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th. Cir. 2003),
28 and Smith v. Ratelle, 323 F.3d 813, 816 n.2 (9th Cir. 2003)).
21

The

1 mailbox rule, liberally applied, in effect assumes that absent
2 evidence to the contrary, a legal document is filed on the date it
3 was delivered to prison authorities and that a petition was
4 delivered on the day it was signed.

Houston v. Lack, 487 U.S. at

5 275-76; Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010);
6 Campbell v. Henry, 614 F.3d 1056, 1058-59 (9th Cir. 2010); Lewis v.
7 Mitchell, 173 F.Supp.2d 1057, 1058 n.1 (C.D.Cal. 2001).

The date a

8 petition is signed may be inferred to be the earliest possible date
9 an inmate could submit his petition to prison authorities for filing
10 under the mailbox rule.

Jenkins v. Johnson, 330 F.3d 1146, 1149 n.2

11 (9th Cir. 2003), overruled on other grounds, Pace v. DiGuglielmo,
12 544 U.S. 408 (2005).

However, if there is a long delay between the

13 alleged mailing and receipt by a court, a district court may
14 attribute the discrepancy to various causes, including the court,
15 the postal service, the prison authorities, or the prisoner himself.
16 See, Koch v. Ricketts, 68 F.3d 1191, 1193 n.3 (9th Cir. 1995)
17 (concerning analogous Fed. R. App. P. 4(c)).
18

Here, although the petition’s date of signature -- December 8,

19 2010 -- is over two months before the date of filing stamped by the
20 MCSC, Respondent has not introduced any evidence to rebut the
21 presumption of the mailbox rule that the date of signature is the
22 date of delivery to prison authorities.

The Court will liberally

23 apply the mailbox rule and concludes that pursuant to this rule,
24 Petitioner constructively filed the petition in the MCSC on December
25 8, 2010.
26

Respondent concedes that the first state habeas petition was

27 properly filed.

However, a collateral action filed before the

28 commencement of the running of the statutory limitation period has
22

1 no tolling consequence.

Waldrip v. Hall, 548 F.3d at 735.

Here,

2 the filing of the first state habeas petition before the finality of
3 the judgment served only to toll the running of the statutory period
4 from February 9, 2011, the first day of the statutory period,
5 through April 4, 2011, the date on which the first state habeas
6 petition was denied, for a total of fifty-five (55) days of tolling.
7

Petitioner’s second state habeas petition was marked filed in

8 the MCSC on November 1, 2011.

However, the date of signature on

9 several pages in the petition is October 20, 2011.

Respondent has

10 not provided any evidence to rebut the presumption that the date of
11 signature was the date the petition was delivered to prison
12 authorities.

Accordingly, the Court concludes that Petitioner

13 constructively filed the petition on October 20, 2011.
14

This petition raised Petitioner’s new claims (1) denial of the

15 right to have every element of the crime proven, 2) the charges were
16 impermissibly broadened, 3) trial counsel provided ineffective
17 assistance at critical stages of the trial [regarding the first two
18 claims concerning proof of all elements of the crime and
19 impermissible broadening of the charges], and 4) the convictions of
20 attempted robbery and the findings on the special circumstance
21 allegation were not supported by sufficient evidence).

Respondent

22 contends that Petitioner’s second state petition did not toll the
23 running of the statute because Petitioner was not pursuing his
24 application up the ladder of the state court system.
25

Review is “pending” within the meaning of § 2244(d)(2) only

26 where a prisoner is pursuing a single, full round of habeas relief
27 in state court; no review is “pending” where a prisoner files a
28 second petition which raises new claims and merely elaborates the
23

1 facts relating to the claims in a prior petition or an attempt to
2 correct the prior petition’s deficiencies.

Stancle v. Clay, 692

3 F.3d 948, 951, 954-56 (9th Cir. 2012), cert. den., - U.S. -, 133
4 S.Ct. 1465 (2013); Banjo v. Ayers, 614 F.3d 964, 968-69 (9th Cir.
5 2010), cert. den., Banjo v. Cullen, - U.S. -, 131 S.Ct. 3023 (2011).
6

Here, Petitioner’s second state petition was filed in the same

7 court as the first, raised new claims, and was not limited to an
8 elaboration of the facts relating to the first petition’s claims
9 concerning the suggestive identification and errors relating to the
10 prosecution’s duty of disclosure and jury selection.

Thus,

11 Petitioner was not pursuing a single, full round of habeas relief in
12 state court.

Therefore, Petitioner is not entitled to statutory

13 “gap tolling” between the denial of the first petition and the
14 filing of the second.

Accordingly, 198 days of the limitation

15 period ran after the denial of the first state petition on April 4,
16 2011, until the filing of the second on October 20, 2011.

Assuming

17 that the second state habeas petition filed on October 20, 2011, was
18 not an improperly filed successive petition (see Respondent’s
19 Opposition, doc. 32, 11), Petitioner is entitled to statutory
20 tolling for forty-nine (49) days while the second petition was
21 pending from October 20, 2011, through December 7, 2011, the date
22 the second petition was denied.
23

Respondent concedes that Petitioner properly filed his third

24 state habeas petition which raised the same new claims that had been
25 raised in the second MCSC petition.

Although stamped filed as of

26 January 10, 2012, the third state habeas petition contained a proof
27 of service of the petition and attached motion for counsel that was
28 dated January 5, 2012.

It will be inferred that the petition was
24

1 constructively filed on January 5, 2012.

Thus, Petitioner’s third

2 state habeas petition tolled the running of the statute from January
3 5, 2012, the date on which the petition was constructively filed,
4 until February 3, 2012, the date the petition was denied, for a
5 period of thirty (30) days.

Further, because Petitioner was

6 proceeding with his claims to a higher court, Petitioner is entitled
7 to twenty-eight (28) days of “gap” tolling from December 8, 2011,
8 through January 4, 2012, the time period between the denial of the
9 second petition filed in the MCSC and the filing of the petition in
10 the CCA.

Thus, Petitioner is entitled to statutory tolling for an

11 additional fifty-eight (58) days from December 7, 2011, through
12 February 3, 2012.
13

The filing of the federal petition here on February 13, 2012,

14 did not toll the statute because it was not an application for
15 review by a state court within the meaning of 28 U.S.C.
16 § 2244(d)(2).
17

Duncan v. Walker, 533 U.S. 167, 172 (2001).

Petitioner’s fourth state habeas petition was marked filed in

18 the MCSC on March 28, 2012.
19 2011.

The petition was dated October 20,

Review of this petition (LD 13) and the previous MCSC

20 petition (LD 9) shows that the two petitions are identical.

It is

21 not logically possible that Petitioner delivered the two petitions
22 to the prison authorities for mailing on the same date.

Under these

23 circumstances, the date of October 20, 2011, that appears next to
24 the signature, will not be inferred to be the date of signature of
25 the later MCSC petition.

The mail log shows that the petition was

26 sent from the institution on March 26, 2012.

(Doc. 34, 9.)

It is

27 reasonably inferred that as of this date, Petitioner had delivered
28 the petition to the prison authorities for mailing.
25

Liberally

1 applying the mailbox rule, Petitioner constructively filed his
2 fourth state habeas petition on March 26, 2012.
3

This petition not only raised the same new claims that had been

4 raised in the second state habeas petition previously filed in the
5 MCSC, but it was also actually identical with the earlier petition
6 except for a verification that was included in the earlier petition
7 but not in the later one.

(LD 9, 13.)

The fourth state habeas

8 petition thus could not be considered an elaboration of, or an
9 attempt to correct deficiencies in, the second state petition
10 because there was no additional matter in the fourth state petition
11 that was not in the second one.

Therefore, at the time the fourth

12 petition was filed, there was no petition “pending” within the
13 meaning of § 2244(d)(2).
14

The fourth petition was denied by the MCSC with a citation to

15 In re Clark, 5 Cal.4th 750, 767-68 (1993) and an express statement
16 that the petition was denied because it was a repeated presentation
17 of claims that the court had rejected in a prior petition.
18 14.)

(Doc.

Because the petition was denied as a successive petition that

19 improperly raised contentions in a piecemeal fashion, it cannot be
20 the basis of gap tolling.

For gap tolling to be based on a second

21 round, the petition cannot be untimely or an improper successive
22 petition.

Porter v. Ollison, 620 F.3d 952, 958 (9th

Cir. 2010);

23 Lewis v. Mitchell, 173 F.Supp.2d 1057, 1061 (C.D.Cal. 2001).
24

Accordingly, the statute of limitations ran from the day

25 following the denial of the CCA petition on February 3, 2012, until
26 the filing of the fourth state habeas petition in the MCSC on March
27 26, 2012, for a total of fifty-one (51) days.

The pendency of the

28 fourth petition tolled the running of the statute of limitations
26

1 from March 26, 2012, through May 8, 2012, the date on which the MCSC
2 denied the fourth petition, for a total of forty-four (44) days.
3

In sum, Petitioner’s state petitions tolled the statute for two

4 hundred six (206) days.

At the time that Petitioner’s fourth and

5 last state petition was denied on May 8, 2012, 249 days of the
6 statutory limitation period had run, leaving 116 days before the
7 expiration of the limitation period.

One hundred and sixteen days

8 after May 8, 2012, was September 1, 2012.

Thus, the statutory

9 period expired on September 1, 2012.
10

Petitioner first moved to amend his petition on March 19, 2012.

11 However, the fact that this date was within the limitations period
12 is not determinative.

Although Petitioner sought a Rhines stay of

13 the petition, the Court’s analysis has led to a conclusion that
14 Petitioner has not shown good cause for such a stay.
15 Petitioner qualifies only for a Kelly stay.

Thus,

As previously noted, a

16 petitioner who has sought and received a stay pursuant to
17 Kelly v. Small is permitted to amend his petition to add newly
18 exhausted claims only if those claims, once exhausted, are either
19 timely or relate back to exhausted claims set forth in a timely
20 petition.

King v. Ryan, 564 F.3d at 1135, 1140-43.

The Kelly

21 procedure does nothing to protect a petitioner’s unexhausted claims
22 from untimeliness during the time that the petitioner is exhausting
23 state court remedies as to the unexhausted claims.
24

Id. at 1141.

It is undisputed that Petitioner has not exhausted his new

25 claims.

Thus, any attempt to amend the petition to add the new

26 claims will be foreclosed by the untimeliness of the claims unless
27 the running of the statute is equitably tolled or the new claims
28 relate back to exhausted claims in the original petition.
27

As

1 Respondent notes, it would be futile to stay the petition if any
2 newly exhausted claims would be untimely.
c) Equitable Tolling

3
4

Petitioner argues that he is entitled to equitable tolling for

5 the time during which he failed to receive notice of the CCA’s
6 denial of his habeas petition from February 3, 2012, the date of
7 denial, until an uncertain date after August 3, 2012, or September
8 17, 2012, when the CCA mailed to Petitioner additional copies of the
9 denial order.
10

The one-year limitation period of § 2244 is subject to

11 equitable tolling where the petitioner shows that he or she has been
12 diligent, and extraordinary circumstances have prevented the
13 petitioner from filing a timely petition.

Holland v. Florida, –

14 U.S. –, 130 S.Ct. 2549, 2560, 2562 (2010).

Petitioner bears the

15 burden of showing the requisite extraordinary circumstances and
16 diligence.

Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010).

17 A petitioner must provide specific facts regarding what was done to
18 pursue the petitioner’s claims to demonstrate that equitable tolling
19 is warranted.

Roy v. Lampert, 465 F.3d 964, 973 (9th Cir. 2006).

20 Conclusional allegations are generally inadequate.
21 Dexter, 649 F.Supp.2d 1055, 1061-62 (C.D.Cal. 2009).

Williams v.
The petitioner

22 must show that the extraordinary circumstances were the cause of his
23 untimeliness and that the extraordinary circumstances made it
24 impossible to file a petition on time.

Ramirez v. Yates, 571 F.3d

25 993, 997 (9th Cir. 2009).
26

Where a prisoner fails to show any causal connection between

27 the grounds upon which he asserts a right to equitable tolling and
28 his inability to timely file a federal habeas application, the
28

1 equitable tolling claim will be denied.
2 1030, 1034-35 (9th Cir. 2005).

Gaston v. Palmer, 417 F.3d

A prisoner’s or counsel’s failure to

3 recognize that a state filing was unreasonably delayed under
4 California law is not the result of an “external force” that
5 rendered timeliness impossible, but rather is attributable to the
6 petitioner as the result of his own actions.

Velasquez v. Kirkland,

7 639 F.3d 964, 969 (9th Cir. 2011).
8

The diligence required for equitable tolling is reasonable

9 diligence, not “maximum feasible diligence.”
10 130 S.Ct. at 2565.

Holland v. Florida,

However, “the threshold necessary to trigger

11 equitable tolling [under AEDPA] is very high, lest the exceptions
12 swallow the rule.”

Spitsyn v. Moore, 345 F.3d 796, 799 (quoting

13 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).

A

14 petitioner seeking equitable tolling must demonstrate reasonable
15 diligence while exhausting state court remedies and while attempting
16 to file a federal petition during the period after the extraordinary
17 circumstances began.
18 2006).

Roy v. Lampert, 465 F.3d 964, 971 (9th Cir.

The effort required is what a reasonable person might be

19 expected to deliver under his or her particular circumstances.
20 v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).

Doe

Because a pro se

21 petitioner’s habeas filings must be construed with deference, a
22 court will construe liberally such a petitioner’s allegations
23 regarding diligence.

Roy v. Lampert, 465 F.3d 964, 970 (9th Cir.

24 2006).
25

A prisoner’s lack of knowledge that the state courts have

26 reached a final resolution of his case can provide grounds for
27 equitable tolling if the prisoner has acted diligently in the
28 matter.

Ramirez v. Yates, 571 F.3d at 997; White v. Ollison, 530
29

1 F.Supp.2d 1077, 1083-84 (C.D.Cal. 2007) (statute equitably tolled
2 for approximately two and one-half months between the superior
3 court’s denial of the petitioner’s habeas petition and the date on
4 which the petitioner received notice of the court’s denial, and
5 collecting authorities); Lewis v. Mitchell, 173 F.Supp.2d 1057,
6 1061-62 (C.D.Cal. 2001) (statute equitably tolled for the period
7 following a court’s ruling and the petitioner’s receipt of notice of
8 it, where the petitioner had not been notified of the state supreme
9 court’s denial of her habeas petition for more than five months
10 after the denial because the prison returned the mailed notification
11 of the denial to the state supreme court because the prisoner’s
12 prison number did not appear on the envelope, despite petitioner’s
13 having provided her prisoner number to the court); Lopez v.
14 Scribner, 2008 WL 2441362, *7-*9 (No. CV 07-6954-ODW (JTL), C.D.Cal.
15 Apr. 11, 2008) (assuming that the statute was equitably tolled
16 during the time between a court’s denial of a first state habeas
17 petition and the date the petitioner learned of the denial, where
18 the petitioner did not receive notice of the court’s September 2006
19 denial of a petition filed in August 2006 until the petitioner
20 sought a ruling in February 2007, and the delay made it impossible
21 for the petitioner to file a timely federal habeas petition).

To

22 determine whether a petitioner is entitled to such tolling, it must
23 be determined on what date the petitioner received notice, whether
24 the petitioner acted diligently to receive notice, and whether the
25 alleged delay of notice caused the untimeliness of the filing and
26 made a timely filing impossible.
27

Ramirez v. Yates, 571 F.3d at 998.

Here, Petitioner alleges that for an uncertain period of time

28 of approximately six or seven months, he did not know that the CCA
30

1 had denied his petition.

There is no declaration concerning the

2 precise date on which Petitioner received notice of the ruling, but
3 even assuming Petitioner was diligent in his efforts to ascertain
4 the status of his habeas petition in the CCA, the delay in
5 notification did not cause the untimeliness of Petitioner’s new,
6 unexhausted claims.

As Respondent notes, in November 2010,

7 Petitioner’s counsel had instructed him with respect to federal
8 habeas corpus and the need to exhaust state court remedies by
9 petitioning the California Supreme Court for review of any issues
10 not included in the direct appeal.

(Doc. 26, 7-9, 8.)

Thus,

11 Petitioner knew he had to proceed to the California Supreme Court
12 for review of any claims he sought to include in a federal petition.
13

However, once he received notice of the CCA’s ruling,

14 Petitioner did not proceed with his claims to the California Supreme
15 Court; instead, he filed another petition in the MCSC raising the
16 same new claims.

It is undisputed that Petitioner did not

17 ultimately seek to exhaust his new claims by presenting them in the
18 California Supreme Court.

Thus, Petitioner has not shown that any

19 delay in the CCA rendered him unable to exhaust his state court
20 remedies or otherwise affected the timeliness of the new claims.
21

In sum, although Petitioner may have suffered a delay in

22 notification of the CCA’s ruling, Petitioner has not shown that the
23 delay caused the untimeliness of his claims.

Petitioner has not

24 shown that he is entitled to equitable tolling.
25
26

d)

Relation Back of Claims

Respondent argues that granting Petitioner leave to amend his

27 petition would be futile because the new claims would not relate
28 back to the exhausted claims in the originally filed petition.
31

If

1 Petitioner’s new claims are otherwise untimely and would not relate
2 back to exhausted claims in the originally filed petition, granting
3 a stay would be futile because no matter how long the present action
4 were held in abeyance, Petitioner could not present new claims that
5 would be timely or would relate back to timely claims.
6

A habeas petition “may be amended... as provided in the rules

7 of procedure applicable to civil actions.”

28 U.S.C. § 2242.

8 R. Civ. P. 15 is applicable to habeas corpus proceedings.

Fed.

28 U.S.C.

9 § 2242; Fed. R. Civ. P. 81(a)(2); Habeas Corpus Rule 11; Mayle v.
10 Felix, 545 U.S. at 655.
11

An amendment to a pleading relates back to the date of the

12 original pleading when 1) the law that provides the applicable
13 statute of limitations allows relation back, 2) the amendment
14 asserts a claim or defense that arose out of the conduct,
15 transaction, or occurrence set out, or attempted to be set out, in
16 the original pleading, or 3) the amendment changes the party or
17 naming of a party under specified circumstances.
18 15(c)(1).

Fed. R. Civ. P.

In a habeas corpus case, the “original pleading” referred

19 to in Rule 15 is the petition.

Mayle v. Felix, 545 U.S. at 655.

A

20 habeas petition differs from a complaint in an ordinary civil case,
21 however.

In ordinary civil cases, notice pleading is sufficient;

22 however, Habeas Rule 2(c) requires that a habeas petition not simply
23 meet the general standard of notice pleading, but rather specify all
24 the grounds for relief available to the petitioner and state the
25 facts supporting each ground.
26

Mayle v. Felix, 545 U.S. at 655.

Relation back is appropriate in habeas cases where the original

27 and amended petitions state claims that are tied to a common core of
28 operative facts.

Mayle, 545 U.S. at 664.
32

The claims added by

1 amendment must arise from the same core facts as the timely filed
2 claims and must depend upon events not separate in “both time and
3 type” from the originally raised episodes.

Mayle, 545 U.S. at 657.

4 Thus, the terms “conduct, transaction, or occurrence” in Fed. R.
5 Civ. P. 15(c)(1)(B) are not interpreted so broadly that it is
6 sufficient that a claim first asserted in an amended petition simply
7 stems from the same trial, conviction, or sentence that was the
8 subject of a claim in an original petition.
9 U.S. at 656-57.

Mayle v. Felix, 545

In Mayle, the Court concluded that the petitioner’s

10 pretrial statements, which were the subject of an amended petition,
11 were separated in time and type from a witness’s videotaped
12 statements, which occurred at a different time and place and were
13 the basis of a claim in the original petition.
14 was not appropriate.
15

Thus, relation back

Mayle, 545 U.S. at 657, 659-60.

Here, the exhausted claims in the initially filed petition

16 concerned a suggestive, pretrial photographic identification; the
17 prosecution’s withholding of allegedly material evidence; and error
18 in jury selection.

In his first new claim, Petitioner alleges that

19 although he was charged with a willful and malicious murder in
20 violation of Cal. Pen. Code § 187, the jury was allowed to find him
21 guilty of murder on a felony murder theory, which supported guilt
22 even if the jury believed that the killing was accidental or
23 unintentional.

Petitioner thus complains that he was deprived of

24 his right to have the jury find him guilty of every element of the
25 crime as charged.

The facts of the new claim relate to the homicide

26 charge against Petitioner and the legal issues presented to the jury
27 that related to that charge.

These facts are not the same core

28 facts as those involved in the timely claims; they do not relate to
33

1 the pretrial identification, the prosecution’s failure to disclose
2 material evidence, or jury selection.

The new claim is based on

3 events that are different in both time and type from the originally
4 raised claims.

Although both the new claim and the original jury

5 selection claims relate to proceedings before the jury, this is not
6 a sufficient relationship to permit relation back.

Cf., Hebner v.

7 McGrath, 543 F.3d 1133, 1138-39 (9th Cir. 2008) (holding that a
8 claim concerning jury instructions that allegedly lowered the burden
9 of proof did not relate back to a claim concerning the admissibility
10 of evidence).
11

Petitioner’s second new claim alleges he suffered a violation

12 of due process based on the broadening of the charges.

Although

13 this claim is related to the first new claim, like the first new
14 claim, it relies on separate and different facts from those in the
15 original claims regarding the pretrial photo identification, a
16 violation of the prosecution’s duty to disclose material favorable
17 evidence, and jury selection error.

The second claim concerns the

18 scope of the accusation and the extent of the evidence considered by
19 the jury with respect to the accusation, different factual matters
20 from those forming the basis of the initially alleged claims.
21 Further, the fact that two otherwise factually separate claims both
22 relate to a denial of due process does not constitute an operative
23 fact sufficient to tie claims together.
24 F.3d
25

See, Hebner v. McGrath, 543

at 1138.
Petitioner’s third new claim concerns the ineffective

26 assistance of counsel.

Petitioner does not state the factual basis

27 of the claim in his motions.

(Doc. 12, 2; doc. 30, 3.)

However,

28 the petition filed in the CCA reveals that Petitioner’s ineffective
34

1 assistance claim related to trial counsel’s failure to correct the
2 charging information to remove the “willful” element from the
3 homicide count, to object on that ground with respect to jury
4 instructions, and to declare a mistrial once the verdict was read
5 without a finding of willfulness.

(LD 11, typed pages 10-11.)

6 Again, counsel’s allegedly substandard practice related to the scope
7 of the homicide charge and the legal issues presented to the jury
8 regarding that charge.

It was not based on same core facts as the

9 timely filed claims, which concerned a pretrial identification, the
10 prosecutor’s withholding of evidence, and jury selection error.

The

11 Court concludes that Petitioner’s new claims concerning the
12 ineffective assistance of counsel are based on events that are
13 separate in both time and type from the originally raised episodes.
14

Petitioner’s fourth claim alleges that because there was

15 evidence of a motive unrelated to acquiring money, the evidence was
16 insufficient to support a conviction of attempted robbery and to
17 satisfy special circumstances based on murder in the course of a
18 robbery.

(Doc. 30, 3.)

This claim relates specifically to the

19 evidence of attempted robbery and the sufficiency of that evidence
20 to support the conviction of attempted robbery.

The facts pertinent

21 to this issue are separate in both time and type from the pretrial
22 identification, the Brady error, or jury selection error.

The

23 initial claims concerned specific action on the part of law
24 enforcement personnel before trial, the prosecutor outside of the
25 presence of the jury, or the parties and the court during jury
26 selection, while the new claim concerns the body of evidence
27 relating to robbery that was presented to the jury.
28

In sum, the Court concludes that the claims Petitioner seeks to
35

1 add to the petition in this proceeding are unexhausted, untimely,
2 and would not relate back to the originally filed claims.
3 Accordingly, it would be futile to stay the proceedings for
4 Petitioner to exhaust his state court remedies as to these claims
5 and for Petitioner ultimately to seek to amend the petition to add
6 these claims.

Therefore, Petitioner’s request for a Kelly stay

7 should be denied because granting such a stay to permit exhaustion
8 of Petitioner’s four new claims would be futile.

See, King v. Ryan,

9 564 F.3d at 1141-43.
10

Although these issues arise in the context of a motion for a

11 stay and a motion for leave to file an amended petition, ruling on
12 Petitioner’s motion removes the availability of a federal forum with
13 respect to Petitioner’s four new claims.

Accordingly, the

14 undersigned proceeds by way of findings and recommendations.
15

VI.

Recommendations

16

In accordance with the foregoing, it is RECOMMENDED that:

17

1) Petitioner’s motion for a stay of the proceedings be DENIED.

18

These findings and recommendations are submitted to the United

19 States District Court Judge assigned to the case, pursuant to the
20 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
21 Rules of Practice for the United States District Court, Eastern
22 District of California.

Within thirty (30) days after being served

23 with a copy, any party may file written objections with the Court
24 and serve a copy on all parties.

Such a document should be

25 captioned AObjections to Magistrate Judge=s Findings and
26 Recommendations.@

Replies to the objections shall be served and

27 filed within fourteen (14) days (plus three (3) days if served by
28 mail) after service of the objections.
36

The Court will then review

1 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
2 The parties are advised that failure to file objections within the
3 specified time limit may waive the right to appeal the District
4 Court’s order.

Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

5
6
7 IT IS SO ORDERED.
8
9

Dated:

August 23, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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