Bonilla v. Brazelton

Filing 21

FINDINGS and RECOMMENDATIONS recommending that Petitioner's Motion for a Rhines Stay be DENIED; Previously suspended deadline for the filing of Petitioner's Traverse be set for no later than thirty (30) Days after service of the Court's order denying Petitioner's Motion for a Stay re 14 MOTION filed by Julio Cesar Bonilla ; referred to Judge O'Neill,signed by Magistrate Judge Barbara A. McAuliffe on 9/15/2014. Objections to F&R due by 10/20/2014 (Martin-Gill, S)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 JULIO CESAR BONILLA,

Case No. 1:13-cv-01710-LJO-BAM-HC

12

FINDINGS AND RECOMMENDATIONS TO
DENY PETITIONER’S MOTION FOR A STAY
(DOC. 14)

13

Petitioner,
v.

14
15 PAUL D. BRAZELTON,
16

Respondent.

FINDINGS AND RECOMMENDATIONS TO
RESCHEDULE THE DEADLINE FOR THE
FILING OF PETITIONER’S TRAVERSE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS

17
18

Petitioner is a prisoner proceeding pro se and in forma

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

The matter has been referred to the Magistrate Judge

21 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
22 Pending before the Court is the Petitioner’s motion to hold the
23 petition in abeyance, which was filed on January 6, 2014.
24 Respondent filed opposition on March 4, 2014, and Petitioner filed a
25 reply on March 13, 2014.
26

I.

Background

27

In the petition filed on October 24, 2013, Petitioner alleges

28 that he is serving a sentence of forty-four years to life imposed on
1

1 March 28, 2011, by the Superior Court of the State of California,
2 County of Merced (MCSC) for convictions of first and second degree
3 murder with enhancements for use of a knife with respect to both
4 victims.

(Pet., doc. 1, 1-2.)

Petitioner raises the following

5 claims in the petition: 1) a pretrial statement made by Petitioner
6 during questioning by law enforcement officers was admitted into
7 evidence in violation of his Miranda rights; and 2) the failure to
8 instruct the jury on the lesser included offenses of voluntary and
9 involuntary manslaughter violated his rights to a fair trial
10 guaranteed by the Fifth, Sixth, and Fourteenth Amendments.
11 6-10.)

Respondent answered the petition on March 23, 2014.

(Id. at
The

12 deadline for filing a traverse will be scheduled after the
13 conclusion of the instant motion proceedings.
14

II.

Motion for a Rhines Stay

15

Petitioner moves for a stay to permit him to exhaust claims

16 that there was insufficient evidence of first degree murder and of
17 second degree murder, and that Petitioner suffered the ineffective
18 assistance of counsel when appellate counsel failed to raise these
19 issues on direct appeal.

(Doc. 14, 1-2.)

Petitioner argues that

20 the evidence shows that one murder victim, William Cisneros, killed
21 the other murder victim, Maria Clara Cisneros (Clara), who was
22 William’s wife.

William then came after Petitioner and tripped and

23 fell; Petitioner grabbed the knife and stabbed William to death,
24 fearing that if William regained his stance he would kill Petitioner
25 because William had discovered Petitioner and Clara engaging in
26 sexual relations.

(Id. at 1-2.)

Petitioner argues that because in

27 relation to William he acted in self-defense and/or the sudden heat
28 of passion, Petitioner did not form malice, which is a necessary
2

1 element of murder under California law, let alone premeditation and
2 deliberation, which are elements of first degree murder under
3 California law.

Petitioner contends that under the evidence, he is

4 guilty at most of the voluntary or involuntary manslaughter of
5 William, and he is completely innocent of the murder of Clara.
6

Respondent argues that Petitioner’s claims of insufficiency of

7 the evidence are without merit, there was no ineffective assistance
8 of counsel, and a stay under Rhines is inappropriate.
A.

9
10

Rhines Stay

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

11 validly consider on the merits.

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

12 (2005); King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009), cert.
13 den., 558 U.S. 887.

A petition may be stayed either under Rhines,

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

King v.

15 Ryan, 564 F.3d at 1138-41.
16

Under Rhines, the Court has discretion to stay proceedings;

17 however, this discretion is circumscribed by the Antiterrorism and
18 Effective Death Penalty Act of 1996 (AEDPA).
19 276-77.

Rhines, 544 U.S. at

In light of AEDPA=s objectives, Astay and abeyance [is]

20 available only in limited circumstances@ and Ais only appropriate
21 when the district court determines there was good cause for the
22 petitioner=s failure to exhaust his claims first in state court.@
23 Id. at 277-78.

A stay of a mixed petition pursuant to Rhines is

24 required only if 1) the petitioner has good cause for his failure to
25 exhaust his claims in state court; 2) the unexhausted claims are
26 potentially meritorious; and 3) there is no indication that the
27 petitioner intentionally engaged in dilatory litigation tactics.
28 Id.
3

1

A petition may also be stayed pursuant to the procedure set

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

Under

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

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

However, the

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

Id.

9 at 1140-41.
10

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

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

In

13 contrast, a stay pursuant to the three-step Kelly procedure allows a
14 district court to stay a fully exhausted petition, and it requires
15 that any unexhausted claims be dismissed.

Jackson v. Roe, 425 F.3d

16 654, 661 (9th Cir. 2005).
17

The Supreme Court has not articulated what constitutes good

18 cause under Rhines, but it has stated that “[a] petitioner's
19 reasonable confusion about whether a state filing would be timely
20 will ordinarily constitute ‘good cause’ for him to file” a
21 “protective” petition in federal court.
22 U.S. 408, 416 (2005).

Pace v. DiGuglielmo, 544

The Ninth Circuit has held that the standard

23 is a less stringent one than that for good cause to establish
24 equitable tolling, which requires that extraordinary circumstances
25 beyond a petitioner's control be the proximate cause of any delay.
26 Jackson v. Roe, 425 F.3d 654, 661 62 (9th Cir. 2005).

The Ninth

27 Circuit has recognized, however, that “a stay and abeyance should be
28 available only in limited circumstances.”
4

Id. at 661 (internal

1 quotation marks omitted); see, Wooten v. Kirkland, 540 F.3d 1019,
2 1024 (9th Cir. 2008), cert. denied, - U.S.- , 129 S.Ct. 2771 (2009)
3 (concluding that a petitioner’s impression that counsel had
4 exhausted a claim did not demonstrate good cause).
5

Recently, the Ninth Circuit Court of Appeals found that a

6 district court had abused its discretion in deciding that the Rhines
7 good cause standard was not satisfied where a § 2254 petitioner
8 provided argument and supporting evidence that his appellate counsel
9 was ineffective in failing to investigate and raise the ineffective
10 assistance of counsel (IAC) at trial for trial counsel’s failure to
11 present significant mitigating evidence at the penalty phase of the
12 petitioner’s capital murder trial.

Blake v. Baker, 745 F.3d 977

13 (9th Cir. 2014), pet. cert. filed June 14, 2014, no. 13-1488.
14 court in Blake stated the following regarding the good cause
15 standard:
16
17
18
19
20
21
22
23
24
25
26
27
28

The good cause element is the equitable component of the
Rhines test. It ensures that a stay and abeyance is
available only to those petitioners who have a legitimate
reason for failing to exhaust a claim in state court. As
such, good cause turns on whether the petitioner can set
forth a reasonable excuse, supported by sufficient
evidence, to justify that failure. See Pace, 544 U.S. at
416, 125 S.Ct. 1807 (“A petitioner's reasonable
confusion... will ordinarily constitute ‘good cause’
[under Rhines ]....” (emphasis added)). (Footnote
omitted.) An assertion of good cause without evidentiary
support will not typically amount to a reasonable excuse
justifying a petitioner's failure to exhaust. In Wooten,
for example, the petitioner's excuse that he was “under
the impression” that his claim was exhausted was not a
reasonable excuse because no evidence indicated that the
petitioner's ignorance was justified. To the contrary, the
petitioner's attorney sent him a copy of his state
petition, which did not mention the unexhausted claim, and
the petitioner did not argue that his attorney provided
ineffective assistance for failing to include the claim.
540 F.3d at 1024 n. 2; see also King v. Ryan, 564 F.3d
5

The

1
2
3
4
5
6

1133, 1138 (9th Cir.2009) (holding that the district court
did not abuse its discretion in finding that the
petitioner did not establish good cause when his factual
allegations were “insufficiently detailed”).
....
While a bald assertion cannot amount to a showing of good
cause, a reasonable excuse, supported by evidence to
justify a petitioner's failure to exhaust, will.

7 Id. at 982.

The court noted that the sufficiency of IAC by post-

8 conviction as good cause is both consistent with and supported by
9 the Supreme Court's recent opinion in Martinez v. Ryan, – U.S. –,
10
11
12
13

132 S.Ct. 1309 (2012).

In that case, the Court established a

limited exception to the rule of Coleman v. Thompson, 501 U.S. 722,
753 (1991), to the effect that IAC by state post-conviction counsel

14 at initial-review collateral proceedings may establish cause for a
15 prisoner's procedural default of a claim of ineffective assistance
16 at trial. Id., 132 S.Ct. at 1315. The standard stated in Martinez
17
was a showing of ineffective assistance under the standard of
18
Strickland v. Washington, 466 U.S. 668 (1984). Martinez, 132 S.Ct.
19
20 1318. The court in Blake stated, “[W]e hold that the Rhines
21 standard for IAC-based cause is not any more demanding than the
22 cause standard articulated in Martinez.”
23
24
25
26

Blake v. Baker, 745 F.3d

at 984.
B.

Facts

Petitioner lived with the murder victims, whose bodies were

27 found decomposing in the house weeks after they were last known to
28 have been alive.

Petitioner suddenly and without notice departed
6

1 from the house around the time of the homicides and contacted family
2 members whom he had not seen for years who gave him refuge in
3
4
5
6

locations out of town and then out of state.

Articles that had been

removed from the victims’ residence were found with the people who
took Petitioner in or helped him out after the homicide.

(Doc. 1,

7 16-20.)
8

The central facts of record were set forth in the opinion of

9 the Court of Appeal of the State of California, Fifth Appellate
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

District (CCA) in People v. Bonilla, case number F062175, filed
September 25, 2012.

(Doc. 1, 16-29.)

The prosecution’s evidence

included the following:
Defendant related that, on the Saturday in question,
William arrived about 8:00 a.m. with food that he always
brought on Saturdays. William and Clara started arguing.
William had a knife. William and Clara came towards him.
Defendant tried to stop their fighting so he could leave.
They told defendant to go back into the bedroom. William
stabbed Clara. William went toward defendant with the
knife saying he was going to kill him. When William tried
to strike at him, defendant took the knife from William
and stabbed William with it. William took the knife back
from defendant and defendant went outside.
When informed that William had more than one stab wound
and asked how he thought that happened, defendant said he
was “already crazy and maybe out of desperation, and since
[defendant] was all drowsy and everything.”
Defendant returned to the house 20 to 30 minutes later.
William was still alive, kneeling on the kitchen floor.
William had the knife in his hand, was saying “[d]ogs[,
d]ogs” and that he was going to kill defendant. Clara was
dead, on the floor by the washing machine, with a cloth
covering her face. Defendant got nervous and said, “‘Well,
he's going to kill me.’” That was when defendant said he
“made the mistake.” Defendant used William's knife to stab
7

1
2
3
4
5
6
7

William again. He did not know how many times he stabbed
William. William tripped over Clara's feet and fell on top
of her. Defendant cleaned up William's blood.
Defendant left, taking some clothes with him, as well as
two televisions that he thought he could sell when he
needed gas. He also took a rifle and jewelry, but only his
jewelry that he had brought from Mexico. He grabbed the
paperwork with William's birth certificate and the other
things because he thought his papers were in there. He did
not even look at what all he was taking.

8 (Doc. 1, 22-23.)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Further, Petitioner gave the following testimony:
Defendant usually arose around 7:00 a.m. on Saturdays, but
this day, Clara woke him around 9:00 a.m. William had
already left to buy food, something he did every Saturday.
Clara lay down in bed with defendant. The two were always
careful; the dogs would be turned loose so they would bark
when William got home. Defendant and Clara would use this
as an alarm, and would separate if the dogs barked. On
this day, however, Clara had already put the dogs up in
their pen. William yelled at Clara from the living room,
where he was pricking his finger to check his blood-sugar
level. Clara went running out of defendant's bedroom
toward the bathroom, holding her panties. She had her
clothes with her so she could dress in the bathroom. She
left her bra in defendant's room, however, and defendant
believed William saw her naked.
Defendant heard Clara and William yelling profanity at
each other. He left his room and saw them arguing. Clara
was in the kitchen, while William was in the other little
room where the broiler was. Defendant took Clara's hands
and said to stop fighting. She pushed him and he pushed
her back with his hands. He did so because she and William
were having a very heated argument. When defendant pushed
her, Clara scolded him and told him to go to sleep. She
told defendant she would take care of this herself.
Defendant went to his room and turned on the radio so he
would not hear them fight. When he turned off the radio,
he did not hear anything, so he went toward the kitchen to
see if everything was calm. He saw Clara lying on the
8

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

floor toward the broiler, with her feet facing the
entrance of the kitchen. She was face up, and he thought
she was already dead, because she was no longer moving and
there was blood.
Defendant saw William with a long, thin knife that he
habitually used to filet fish. William was standing almost
over Clara. He said, “It's just you now, dog, that's
left,” and he came after defendant. Defendant pushed him
and they briefly struggled in the kitchen. William tried
to stab defendant with the knife. Defendant threw up an
arm, then turned and went running out through the living
room. As he did so, he pushed over the chair. He did not
know if William was injured during this initial struggle.
Defendant saw blood on the knife, but did not know if it
belonged to Clara.
Defendant made it outside, but, because he was only
wearing the shorts in which he slept and no shoes, he did
not leave. He was crying and unable to think. Finally, he
went back inside to see what had happened and at least put
on some shoes. He went in through the front door, then
looked in the kitchen. Clara's body was in the same place,
but William had moved her feet away from the doorway and
had covered her. William was with the body. He was crying,
then he went after defendant again. Defendant ran, but
could not get out because of Clara's body. Defendant ended
up back in the broiler room, where William attacked him.
Defendant had never seen William like that. William was
almost like he had been possessed by the devil. He was an
old man, but strong.
William tripped over Clara's feet, and defendant took the
knife away from him and stabbed him, injuring him badly
and killing him. It was defendant's life or William's.
(Footnote omitted.) The two bodies stayed in the broiler
room; defendant did not touch or position them. Seeing the
two bodies, emotions overtook defendant; he cried and did
not know what to do. Then he started to take things. He
was looking for his documents, which Clara had in her
dresser drawer. From his room, he took the things that
were his. (Footnote omitted.) He did not know where to go.
He telephoned Victorville, because he had a guitar with
his niece's phone number on it. He did not call the
police; although he wanted to turn himself in, he was
scared.

28
9

1 (Id. at 25-27.)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C.

Analysis

The Court acknowledges that the ineffective assistance of
appellate counsel may constitute good cause for the failure to
exhaust claims of insufficiency of the evidence to support the
convictions.

In the instant case, to establish good cause,

Petitioner would have to provide evidence supporting a conclusion
that 1) counsel=s representation fell below an objective standard of
reasonableness under prevailing professional norms in light of all
the circumstances of the particular case; and 2) unless prejudice is
presumed, it is reasonably probable that, but for counsel=s errors,
the result of the proceeding would have been different.

Strickland

v. Washington, 466 U.S. 668, 687-94 (1984); Lowry v. Lewis, 21 F.3d
344, 346 (9th Cir. 1994).
However, if there is no merit to Petitioner’s claims of
insufficient evidence, then Petitioner could not show that counsel
was ineffective in failing to raise those claims on direct appeal.
Cf. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (failure to raise
the issue of sufficiency of the evidence is not prejudicial where
there was overwhelming evidence of guilt; failure to make a motion
which would not have been successful is not ineffective assistance
of counsel).

Likewise, if the sufficiency of the evidence claims

that are the basis of the motion for a stay are without merit, a
Rhines stay is unwarranted regardless of good cause.

Thus, the

Court will address Petitioner’s claims of sufficiency of the
evidence.
To determine whether a conviction violates the constitutional
guarantee of due process of law because of insufficient evidence, a
10

1 federal court ruling on a petition for writ of habeas corpus must
2 determine whether any rational trier of fact could have found the
3 essential elements of the crime beyond a reasonable doubt.

Jackson

4 v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163
5 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008
6 (9th Cir. 1997).
All evidence must be considered in the light that is the most

7

8 favorable to the prosecution.
9
10
11
12

F.3d at 1008.

Jackson, 443 U.S. at 319; Jones, 114

It must be recognized that it is the trier of fact’s

responsibility to resolve conflicting testimony, weigh evidence, and
draw reasonable inferences from the facts; thus, it must be assumed

13 that the trier resolved all conflicts in a manner that supports the
14 verdict.
15 1008.
16

Jackson v. Virginia, 443 U.S. at 319; Jones, 114 F.3d at

The relevant inquiry is not whether the evidence excludes

every hypothesis except guilt, but rather whether the jury could

17
18
19

reasonably arrive at its verdict.
455, 458 (9th Cir. 1991).

United States v. Mares, 940 F.2d

Circumstantial evidence and the

20 inferences reasonably drawn therefrom can be sufficient to prove any
21 fact and to sustain a conviction, although mere suspicion or
22 speculation does not rise to the level of sufficient evidence.
23
United States v. Lennick, 18 F.3d 814, 820 (9th Cir. 1994); United
24
States v. Stauffer, 922 F.2d 508, 514 (9th Cir. 1990); see Jones v.
25
26 Wood, 207 F.3d at 563. The court must base its determination of the
27 sufficiency of the evidence from a review of the record.
28 324.
11

Jackson at

1

The Jackson standard must be applied with reference to the

2 substantive elements of the criminal offense as defined by state
3 law.

Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.

4 However, the minimum amount of evidence that the Due Process Clause
5 requires to prove an offense is purely a matter of federal law.
6 Coleman v. Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per
7 curiam).

For example, under Jackson, juries have broad discretion

8 to decide what inferences to draw and are required only to draw
9 reasonable inferences from basic facts to ultimate facts.
10

Id.

Here, under California law, first degree murder includes a

11 “willful, deliberate, and premeditated” killing.
12 § 189.

Cal. Pen. Code

“Premeditated” means “thought over in advance” rather than

13 “spontaneous.”

People v. Koontz, 27 Cal.4th 1041, 1080 (2002);

14 People v. Perez, 2 Cal.4th 1117, 1123-24 (1992).

“Deliberate” means

15 “resulting from careful thought and weighing of considerations”
16 rather than “hasty,” “impetuous,” “rash,” or “impulsive.”
17 Cal.4th at 1123-24.
18 brief period of time.
19 (2010).

Perez, 2

Premeditation and deliberation can occur in a
People v. Thompson, 49 Cal.4th 79, 114-15

“The test is not time, but reflection. Thoughts may follow

20 each other with great rapidity and cold, calculated judgment may be
21 arrived at quickly.”

Thompson, 49 Cal.4th at 114 (quoting People v.

22 Osband, 13 Cal.4th 622, 697 (1996)).
23

The evidence admitted in Petitioner’s defense tended to show

24 that Petitioner was dominated by Clara, whom he had met and married
25 at a distant time and place before he learned that she was already
26 married to William.

Petitioner and Clara hid the true nature of

27 their relationship from William.

Petitioner complained of having to

28 serve Clara sexually and provide physical care for William, whose
12

1 health was deteriorating.

Petitioner respected William.

However,

2 the discovery of Clara and Petitioner in the act of sex had enraged
3 William, who repeatedly stated that he would kill Petitioner;
4 Petitioner was so fearful of William while William was in that state
5 of rage that Petitioner did not think or remember clearly.

(Pet.,

6 doc. 1, 23-29.)
7

Although the evidence might have warranted an inference that

8 Petitioner reasonably or unreasonably acted to defend himself from
9 the aggression of William, this Court must view the evidence through
10 the lens of the Jackson standard, which requires assuming that the
11 trier of fact resolved all conflicts in the evidence in favor of the
12 verdict.

Evidence that Petitioner stabbed William once, waited for

13 an appreciable period, and then returned to kill William with
14 multiple blows from the same weapon was sufficient to warrant a
15 reasonable trier of fact in inferring that Petitioner thought about
16 killing William in advance and acted after having reflected on the
17 consequences.

Further, the jury may have concluded that

18 Petitioner’s ultimate use of deadly force was independent of any
19 threat presented by William, disproportionate to any threat
20 presented by William, or otherwise unnecessary.

In Petitioner’s

21 most favorable version of the evidence, Petitioner acted
22 defensively; however, in light of the totality of the circumstances,
23 the evidence that Petitioner desisted, re-approached William, and
24 repeatedly inflicted mortal stab wounds supported an inference that
25 Petitioner committed a deliberate and premeditated killing.
26

In California, second degree murder is the unlawful killing of

27 a human being with malice aforethought but without the additional
28 elements, such as use of specified means or proof of additional
13

1 mental states such as willfulness, premeditation, and deliberation,
2 that would support a conviction for first degree murder.

Cal. Pen.

3 Code §§ 187(a), 189; People v. Knoller, 41 Cal.4th 139, 151 (2007).
4 Malice may be either express, where there is manifested a deliberate
5 intention to take away the life of a fellow creature, or implied,
6 where there is an absence of considerable provocation, or when the
7 circumstances attending the killing show an abandoned and malignant
8 heart.

Cal. Pen. Code § 188.

The test for implied malice was

9 recently reaffirmed and restated as follows:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Malice is implied when the killing is proximately
caused by “an act, the natural consequences of which
are dangerous to life, which act was deliberately
performed by a person who knows that his conduct
endangers the life of another and who acts with
conscious disregard for life.” (People v. Phillips,
supra, at p. 587, 51 Cal.Rptr. 225, 414 P.2d 353.)
In short, implied malice requires a defendant’s
awareness of engaging in conduct that endangers
the life of another--no more, and no less.
People v. Knoller, 41 Cal.4th at 143.
Here, the Petitioner’s admission that he repeatedly approached
the victim and the evidence of multiple stab wounds to the chest and
back (doc. 1, 17) warrant a reasonable finder of fact in concluding
that Petitioner was conscious of the danger to life created by his
conduct and acted in conscious disregard of human life.
Further, although Petitioner denied having killed Clara, the
similarity of wounds inflicted on the two victims and the position
of the bodies supported an inference that Petitioner had killed both
victims.

(Id.)

The Court concludes that applying Jackson standards,
Petitioner’s claim or claims of the insufficiency of the evidence
are without merit.

Thus, Petitioner’s claims that counsel was
14

1 ineffective for failing to raise the insufficiency of the evidence
2 are likewise without merit.
3

Petitioner argues that his counsel was ineffective because in

4 the petition for review filed in state court, counsel stated that
5 Petitioner’s extrajudicial statement that he had stabbed the victim,
6 departed, and then returned twenty minutes later and stabbed him
7 again, was the basis for the jury’s finding of premeditation and
8 deliberation.

However, such a statement merely describes one

9 possible set of inferences already drawn by the trier of fact; it
10 did not undermine any defense and did not amount to a concession in
11 argument that there is no reasonable doubt of guilt.
12

In the reply to the opposition to Petitioner’s motion for a

13 stay, Petitioner alleges that he suffered a violation of due process
14 of law when jewelry that he took from the house was shown to the
15 jury because the jewelry was his and bore his initials.
16 seeks the return of his jewelry.

Petitioner

However, this claim does not

17 relate to the legality or duration of Petitioner’s confinement or
18 otherwise affect the foregoing analysis of the sufficiency of the
19 evidence.
20

Accordingly, Petitioner’s motion for a Rhines stay should be

21 denied because the claims which Petitioner seeks to raise are
22 plainly without merit.

The Court should proceed to schedule a

23 deadline for the filing of Petitioner’s traverse.
24

In an abundance of caution, because ruling on Petitioner’s

25 motion for a stay could be viewed as effectively foreclosing a
26 federal forum for Petitioner’s claims of IAC and insufficiency of
27 the evidence, the undersigned will proceed by findings and
28 recommendations.
15

1 ///
2

III.

Recommendations

3

In accordance with the foregoing, it is RECOMMENDED that:

4

1) Petitioner’s motion for a Rhines stay be DENIED; and

5

2) The previously suspended deadline for the filing of

6 Petitioner’s traverse be set for no later than thirty (30) days
7 after service of the Court’s order denying Petitioner’s motion for a
8 stay.
9

These findings and recommendations are submitted to the United

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

Within thirty (30) days after being served

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

Such a document should be

16 captioned AObjections to Magistrate Judge=s Findings and
17 Recommendations.@

Replies to the objections shall be served and

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

The Court will then review

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

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

24
25 IT IS SO ORDERED.
26
27

Dated:

/s/ Barbara

September 15, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

28
16