Cole v. Lizarraga

Filing 20

ORDER Granting In Part Petitioner's Motion For A Stay Of The Proceedings (Doc. 14 ), ORDER Staying The Action Pursuant To Kelly v. Small Pending Further Order Of The Court, ORDER Directing Petitioner To File Periodic Status Reports, signed by Magistrate Judge Barbara A. McAuliffe on 2/12/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 STEIN HEATH COLE,

Case No. 1:14-cv-01205-LJO-BAM-HC

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ORDER GRANTING IN PART PETITIONER’S
MOTION FOR A STAY OF THE
PROCEEDINGS (DOC. 14)

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Petitioner,
v.

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J. LIZARRAGA, Warden,
Respondent.

ORDER STAYING THE ACTION PURSUANT
TO KELLY V. SMALL PENDING FURTHER
ORDER OF THE COURT
ORDER DIRECTING PETITIONER TO FILE
PERIODIC STATUS REPORTS

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 303.
Pending before the Court is Petitioner’s motion for a stay of
the proceedings to permit exhaustion of state court remedies as to
additional claims, which was filed on October 1, 2014.
filed opposition on October 29, 2014.

Respondent

Petitioner filed a reply on

December 1, 2014.
In the initial petition filed on July 21, 2014, Petitioner
challenges criminal convictions, alleging claims of due process
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1 violations based on admission of evidence of prior bad acts,
2 insufficient evidence of great bodily injury and of attempt to
3 dissuade a witness, and multiple punishment.

He also contends that

4 his rights under the Fourteenth Amendment and the Apprendi case were
5 violated by punishment on multiple counts based on a single course
6 of conduct.

In the motion for a stay, Petitioner states that he

7 intends to exhaust state court remedies as to claims generally
8 described as double jeopardy, ineffective assistance of appellate
9 counsel related to a lost transcript, and due process violations
10 based on prosecutorial misconduct, failure to disclose material
11 exculpatory evidence, and a biased tribunal.

(Doc. 14 at 2-3.)

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I.

Motion for a Stay

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Petitioner seeks a stay pursuant to both Rhines v. Weber, 544

14 U.S. 269, 276 (2005) and Kelly v. Small, 315 F.3d 1063 (9th Cir.
15 2003).
A.

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Legal Standards

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

18 validly consider on the merits.

Rhines v. Weber, 544 U.S. at 276;

19 King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. 2009), cert. den.,
20 558 U.S. 887.

A petition may be stayed either under Rhines, or

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

King v. Ryan,

22 564 F.3d at 1138-41.
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Under Rhines, the Court has discretion to stay proceedings;

24 however, this discretion is circumscribed by the Antiterrorism and
25 Effective Death Penalty Act of 1996 (AEDPA).
26 276-77.

Rhines, 544 U.S. at

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

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

A stay of a mixed petition pursuant to Rhines is

3 required only if 1) the petitioner has good cause for his failure to
4 exhaust his claims in state court; 2) the unexhausted claims are
5 potentially meritorious; and 3) there is no indication that the
6 petitioner intentionally engaged in dilatory litigation tactics.
7 Id.
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A petition may also be stayed pursuant to the procedure set

9 forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th
10 Cir. 2003).

Under this three-step procedure: 1) the petitioner

11 files an amended petition deleting the unexhausted claims; 2) the
12 district court stays and holds in abeyance the fully exhausted
13 petition; and 3) the petitioner later amends the petition to include
14 the newly exhausted claims.
15 (9th Cir. 2009).

See, King v. Ryan, 564 F.3d 1133, 1135

However, the amendment is only allowed if the

16 additional claims are timely.
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Id. at 1140-41.

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

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

In

20 contrast, a stay pursuant to the three-step Kelly procedure allows a
21 district court to stay a fully exhausted petition, and it requires
22 that any unexhausted claims be dismissed.
23 654, 661 (9th Cir. 2005).

Jackson v. Roe, 425 F.3d

In this circuit it is recognized that the

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

King v. Ryan, 564

26 F.3d at 1140.
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B.

Analysis

The Supreme Court has not articulated what constitutes good
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1 cause under Rhines, but it has stated that a petitioner's reasonable
2 confusion about whether a state filing would be timely will
3 ordinarily constitute good cause for him to file a protective
4 petition in federal court.
5 (2005).

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

The Ninth Circuit has held that the standard is a less

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

Jackson

The Ninth Circuit has

10 recognized, however, that “a stay and abeyance should be available
11 only in limited circumstances.”

Id. at 661 (internal quotation

12 marks omitted); see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th
13 Cir. 2008), cert. denied, - U.S.- , 129 S.Ct. 2771 (2009)
14 (concluding that a petitioner’s impression that counsel had
15 exhausted a claim did not demonstrate good cause).
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Recently the Ninth Circuit Court of Appeals found that the

17 district court had abused its discretion in deciding that the Rhines
18 good cause standard was not satisfied where a § 2254 petitioner
19 provided argument and supporting evidence that his appellate counsel
20 was ineffective in failing to investigate and raise the ineffective
21 assistance of counsel (IAC) at trial for trial counsel’s failure to
22 present significant mitigating evidence at the penalty phase of a
23 capital case.

Blake v. Baker, 745 F.3d 977 (9th Cir. 2014), cert.

24 den. Baker v. Blake, 135 S.Ct. 128 (Oct 06, 2014).

The Court in

25 Blake stated the following regarding the good cause standard:
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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
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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
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.

17 Id. at 982.
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Here, Petitioner has not shown good cause for a stay.

19 Petitioner makes general allegations that he discovered new evidence
20 or that transcripts were lost, but Petitioner does not provide
21 specific details regarding the substance, timing, or significance of
22 his belated discoveries.

Petitioner has not provided sufficiently

23 detailed evidence of a reasonable excuse.
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Although Respondent argues that some of Petitioner’s

25 contentions in the initial petition were unexhausted in some
26 respects, Respondent answers Petitioner’s initial contentions on the
27 merits in the answer (doc. 13), and no motion to dismiss is pending
28 before the Court.

At this point, the Court will consider the
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1 petition to be substantially exhausted and will grant a stay
2 pursuant to Kelly v. Small.
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Petitioner will be instructed to file status reports of his

4 progress through the state courts.

Once the California Supreme

5 Court renders its opinion, provided the opinion is a denial of
6 relief, Petitioner must file an amended petition including all of
7 his exhausted claims.

He is forewarned that claims may be precluded

8 as untimely if they do not comport with the statute of limitations
9 set forth in 28 U.S.C. § 2244(d).
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II.

Disposition

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In accordance with the foregoing, it is ORDERED that:

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1) Petitioner’s motion for a stay of the proceedings IS GRANTED

13 IN PART, and Petitioner is GRANTED a stay pursuant to Kelly v.
14 Small, 315 F.3d 1063 (9th Cir. 2003); and
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2) The proceedings are STAYED pending exhaustion of state

16 remedies or further order of the Court; and
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3) Petitioner is DIRECTED to file an initial status report of

18 his progress in the state courts no later than sixty (60) days after
19 the date of service of this order, and then to file periodic status
20 reports every ninety (90) days thereafter until exhaustion is
21 complete; and
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4) No later than thirty (30) days after service of the final

2 order of the California Supreme Court, Petitioner MUST FILE an
3 amended petition in this Court including all exhausted claims.
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Petitioner is forewarned that failure to comply with this order

5 will result in the Court’s vacating the stay.
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7 IT IS SO ORDERED.
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Dated:

/s/ Barbara

February 12, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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