Anthony Silva v. Soto

Filing 28

FINDINGS and RECOMMENDATIONS to Deny Motions to Stay 8 , 22 , 27 , signed by Magistrate Judge Michael J. Seng on 3/6/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10
11

Case No. 1:16-cv-00209 LJO MJS (HC)
ANTHONY SILVA,

12

FINDINGS AND RECOMMENDATION TO
Petitioner, DENY MOTIONS TO STAY
(Docs. 8, 22, 27)

v.

13
14
15

A. SOTO, Warden,
Respondent.

16
17
18

I.

Introduction

19

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

20

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a November 8, 2012

21

conviction from the Fresno County Superior Court for two counts of second degree

22

attempted murder, discharging a firearm at an occupied vehicle, second degree robbery,

23

and various enhancements. (Pet., ECF No. 1.) Petitioner filed his federal petition for writ

24

of habeas corpus on February 16, 2016 presenting the following six claims for relief: (1)

25

that the prosecution committed misconduct in presenting false testimony and allowing

26

false testimony to go uncorrected, (2) that appellate counsel was ineffective for failing to

27

present the prosecutorial misconduct claim on appeal, (3) that trial counsel was

28

ineffective based on his examination of Petitioner during trial, (4) that the prosecution
1

1

committed misconduct by presenting improper argument during closing, (5) that the

2

prosecution committed misconduct by misstating and shifting the burden of proof to

3

Petitioner, and (6) insufficient evidence. (See Pet., ECF No. 1.)

4

On February 19, 2016, the Court screened the petition, and ordered Respondent

5

to file a response. (ECF No. 5.)

Respondent filed an answer to the petition on June 20,

6

2016. (ECF No. 20.) However, Petitioner moved the Court to stay the petition in light of

7

the fact that he has a pending appeal of the denial of his post-conviction request for DNA

8

testing under Cal. Penal Code § 1405. (ECF Nos. 8, 22, 27.)

9

Petitioner requests that the instant matter be stayed pending the outcome of his

10

state appeal. On September 2, 2016, Respondent filed an opposition to the motions to

11

stay. (ECF No. 25.) Respondent notes that Petitioner has not asked to add additional

12

claims to his federal petition, and that all of the claims presented in the petition have

13

previously been exhausted. (Id.) Respondent further notes that the request for DNA

14

testing is a matter of state law. Further, should the appeal result in new evidence

15

beneficial to Petitioner, he may present a new or additional claim with this Court after

16

exhaustion of the claim in state court. (Id.)

17

II.

Legal Standards

18

A.

Exhaustion of State Remedies

19

The exhaustion of available state remedies is a prerequisite to a federal court's

20

consideration of claims presented in habeas corpus proceedings. See Rose v. Lundy,

21

455 U.S. 509, 102 S.Ct. 1198, 71 L. Ed. 2d 379 (1982); 28 U.S.C. § 2254(b). The

22

exhaustion doctrine is based on comity to the state court and gives the state court the

23

initial opportunity to correct the state's alleged constitutional deprivations. Coleman v.

24

Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982).

25

A petitioner can satisfy the exhaustion requirement by providing the highest state

26

court with a full and fair opportunity to consider each claim before presenting it to the

27

federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S.

28

270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Additionally, the
2

1

petitioner must have specifically told the state court that he was raising a federal

2

constitutional claim. Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669

3

(9th Cir.2000), amended, 247 F.3d 904 (2001). In Duncan, the United States Supreme

4

Court reiterated the rule as follows:

5
6
7
8
9
10

In Picard v. Connor, 404 U.S. 270, 275 . . . (1971), we said that
exhaustion of state remedies requires that petitioners "fairly presen[t]"
federal claims to the state courts in order to give the State the
"'opportunity to pass upon and correct alleged violations of the prisoners'
federal rights" (some internal quotation marks omitted). If state courts are
to be given the opportunity to correct alleged violations of prisoners'
federal rights, they must surely be alerted to the fact that the prisoners are
asserting claims under the United States Constitution. If a habeas
petitioner wishes to claim that an evidentiary ruling at a state court trial
denied him the due process of law guaranteed by the Fourteenth
Amendment, he must say so, not only in federal court, but in state court.

11
Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, stating:
12
13
14
15
16
17
18
19
20
21
22

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. Hiivala v. Wood, 195 F3d 1098,
1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir.
1996); . . . .
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.
Lyons, 232 F.3d at 668-669 (italics added).

23

B.

Stay and Abeyance

24

A court may stay a petition and hold it in abeyance pursuant to either Kelly v.

25

Small, 315 F.3d 1063 (9th Cir. 2002), or Rhines v. Weber, 544 U.S. 269, 125 S. Ct.

26

1528, 161 L. Ed. 2d 440 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009).

27

Kelly and Rhines set out different procedures and requirements for imposing a stay.

28

Under Kelly, the petitioner amends his petition to delete any unexhausted claims. The
3

1

court then stays and holds in abeyance the amended, fully exhausted petition, allowing

2

the petitioner the opportunity to proceed to state court to exhaust the deleted claims. Id.

3

(citing Kelly, 315 F.3d at 1070-71.) Later, the petitioner amends his petition to add the

4

newly-exhausted claims to the original petition. Id. Under Rhines, a petitioner must meet

5

three pre-conditions for a stay of a mixed petition: (1) a finding of good cause for

6

petitioner's failure to exhaust all his claims before filing his habeas action; (2) a finding

7

that the unexhausted claims are potentially meritorious; and (3) no indication that the

8

petitioner engaged in intentionally dilatory tactics. Rhines, 544 U.S. at 278. If all three

9

preconditions exist, the court should stay the habeas case and hold it in abeyance,

10

leaving the mixed petition intact while the petitioner returns to state court to present his

11

unexhausted claims.

12

The Ninth Circuit has found that "'a motion to stay and abey section 2254

13

proceedings' to exhaust claims 'is generally (but not always) dispositive of the

14

unexhausted claims,'" and that Magistrate judge must present findings and

15

recommendations to a District Court Judge, rather than rule on the motion. Bastidas v.

16

Chappell, 791 F.3d 1155, 1163 (9th Cir. 2015); Mitchell v. Valenzuela, 791 F.3d 1166,

17

1173-74 (9th Cir. 2015).

18

III.

Analysis

19

Petitioner has asked to stay this case and hold it in abeyance to allow him to

20

complete his appeal in state court to seek post-conviction DNA testing. Petitioner has not

21

alleged that a new federal claim exists in light of the appeal, and has not moved to

22

amend the present petition to add such a claim.

23

The Court is not capable of granting a stay at this time. The stay procedures only

24

apply to mixed petitions containing both exhausted and unexhausted claims. See

25

Rhines, 544 U.S. at 278. Further, "district courts must provide habeas litigants with the

26

opportunity to amend their mixed petitions by striking their unexhausted claims."

27

Jefferson v. Budge, 419 F.3d 1013, 1016 (9th Cir. 2005).

28

The instant petition is not a mixed petition. It appears to contain only exhausted
4

1

claims. Should Petitioner’s request for DNA testing succeed, he may have a claim that

2

could be presented in this court, assuming all procedural requirements are met. If so,

3

Petitioner could move to amend the present petition to add the claim (assuming it is still

4

pending), or seek relief from the Ninth Circuit to file a second or successive petition

5

based on a newly discovered factual predicate under 28 U.S.C. § 2244(a)(2).

6

IV.

Recommendation

7
8

It is HEREBY RECOMMENDED that the motions to stay the petition for writ of
habeas corpus be DENIED.

9

These Findings and Recommendations are submitted to the assigned United

10

States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B)

11

and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern

12

District of California. Within fourteen (14) days after being served with a copy, Petitioner

13

may file written objections with the Court. Such a document should be captioned

14

"Objections to Magistrate Judge's Findings and Recommendations. The Court will then

15

review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is

16

advised that failure to file objections within the specified time may waive the right to

17

appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

18

2014).

19
20
21
22

IT IS SO ORDERED.
Dated:

March 6, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
5