Blount v. Kernan

Filing 17

ORDER DENYING 11 Respondent's Motion to Dismiss and GRANTING 12 Petitioner's Motion for Stay and Abeyance signed by Magistrate Judge Sheila K. Oberto on 3/3/2017. Petitioner's First Status Report due within thirty (30) days. CASE STAYED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TYRIN LEE BLOUNT,

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Petitioner,

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v.

No. 1:16-cv-01653-DAD-SKO HC
ORDER DENYING RESPONDENT’S
MOTION TO DISMISS AND GRANTING
PETITIONER’S MOTION FOR
STAY AND ABEYANCE

DAVID DAVEY, Warden,

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Respondent.
(Docs. 11 and 12)

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Petitioner Tyrin Lee Blount is a state prisoner proceeding with a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss for failure to exhaust,

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and Petitioner moves for an order of stay and abeyance to permit him to exhaust his unexhausted

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claims in state court. In accordance with the policy expressed in Rhines v. Weber, 544 U.S. 269,

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275 (2005), the Court denies the motion to dismiss and enters an order of stay and abeyance.

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I.

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Procedural and Factual Background
Petitioner is serving a 17-year sentence following his conviction in Kern County Superior

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Court on charges of burglary (Cal. Penal Code § 460(a) and (b)) and participating in felony street
gang activity (Cal. Penal Code § 186.22(a)). Petitioner and his co-defendants filed a direct appeal

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to the California Court of Appeal, which affirmed the judgment of conviction in a modified

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opinion dated June 18, 2015. Issues addressed by the appellate court were: (1) admission of

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impermissibly suggestive show-up identification by the burglary victims; (2) failure to exclude

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admissions of gang membership at booking by Petitioner and his co-defendants under Miranda1;

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Miranda v. Arizona, 384 U.S. 436 (1966).

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(3) failure to exclude admissions of gang membership at booking as (a) involuntary, (b) under the

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principle of use immunity, and (c) under the doctrine of estoppel; (4) improper ex parte contact

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with jurors during a readback request; (5) trial court’s error in refusing to accept or to require the

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prosecution to accept the defendants’ proposed stipulation concerning the Country Boy Crips; (6)

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insufficient evidence that the Watts/Lotus Country Boy Crips, the gang to which Petitioner

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belonged, was a criminal street gang under Cal. Penal Code § 186.22; and (7) failure to suppress

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co-defendant Randles’ admission of gang membership. See People v. Blount, 2015 WL 3814496

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at *1 (Cal. App. June 18, 2015) (Nos. F066744 and F067069).

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On July 23, 2015, Petitioner filed a petition for review by the California Supreme Court
alleging a single claim: whether the trial court erred in admitting impermissibly suggestive show-

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up identification by the burglary victims. The Supreme Court denied review on September 23,
2015.
Petitioner filed a petition for writ of habeas corpus in Kern County Superior Court on

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February 5, 2016. His only claim alleged that insufficient evidence supported the conviction of

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first degree residential burglary. The Superior Court denied the claim on June 3, 2016. Petitioner

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then repeated the claim in a petition for writ of habeas corpus filed in the California Court of
Appeal on June 21, 2016. The Court of Appeal summarily denied the petition on July 21, 2016.

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The record does not include a habeas petition filed with the California Court of Appeal.

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Petitioner filed a petition for writ of habeas corpus in this Court on November 2, 2016.

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Petitioner alleged the following grounds for relief: (1) admission of impermissibly suggestive

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show-up identification by the burglary victims; (2) failure to exclude admissions of gang

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membership at booking by petitioner and his co-defendants under Miranda; (3) Petitioner’s

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statements to police, made shortly after his booking, were involuntary as the result of a promise
of leniency; (4) improper ex parte contact with jurors during readback request; (5) trial court’s

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error in refusing to accept or to require the prosecution to accept the defendants’ proposed

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stipulation concerning the Country Boy Crips; and (6) insufficient evidence that the Watts/Lotus

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Country Boy Crips, the gang to which Petitioner belonged, was a criminal street gang under Cal.

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Penal Code § 186.22. On January 6, 2017, Respondent moved to dismiss the petition on the
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ground that it included unexhausted claims. On January 23, 2017, Petitioner moved for an order

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of stay and abeyance to permit exhaustion of those claims. Respondent filed an opposition to the

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motion for stay on February 10, 2017.

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II.

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Exhaustion of State Remedies
A petitioner who is in state custody and wishes to collaterally challenge his conviction by

a petition for writ of habeas corpus must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1).

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The exhaustion doctrine is based on comity to the state court and gives the state court the initial
opportunity to correct the state's alleged constitutional deprivations. Coleman v. Thompson, 501

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U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158,

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1163 (9th Cir. 1988).

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A petitioner can satisfy the exhaustion requirement by providing the highest state court
with a full and fair opportunity to consider each claim before presenting it to the federal court.
Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971);

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Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). A federal court will find that the highest state

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court was given a full and fair opportunity to hear a claim if the petitioner has presented the

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highest state court with the claim's factual and legal basis. Duncan, 513 U.S. at 365; Kenney v.

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Tamayo-Reyes, 504 U.S. 1, 8 (1992).

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Petitioner concedes that he has exhausted only the first claim in his federal petition:
whether the trial court erred in admitting impermissibly suggestive show-up identification by the

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burglary victims. Because the five remaining grounds for collateral relief are unexhausted, the
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Court is generally required to dismiss the petition as a mixed petition. 28 U.S.C. § 2254(b)(1);

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Rose, 455 U.S. at 521-22.

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III.

Motion for Stay and Abeyance to Permit Exhaustion

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In response to dismissal motion, Petitioner moved for an order of stay and abeyance
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pursuant to Rhines v. Weber, 544 U.S. 269, 275 (2005), so that he can present the unexhausted

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claims to the California Supreme Court. Respondent opposes the stay motion, contending that

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Petitioner has failed to demonstrate good cause for the issuance of a stay.

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Federal district courts should stay mixed petitions only in limited circumstances. Id. at
277. A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for
failing to have first exhausted all claims in state court; (2) the claims potentially have merit; and

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(3) petitioner has not been dilatory in pursuing the litigation. Id. at 277-78. Support for these
requirements in Petitioner’s case is weak.

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Petitioner contends that his lack of familiarity with applicable law and limited access to

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the prison law library constitute good cause. In that regard, Petitioner’s situation is no different

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than that of most other inmates. Rhines does not define what constitutes good cause for failure to

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exhaust, however, and the Ninth Circuit has provided no clear guidance beyond holding that the
test is less stringent than an "extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d

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654, 661-62 (9th Cir. 2005). If the claims are not "plainly meritless," and if the delays are not

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intentional or attributable to abusive tactics, the Rhines court opined that a district court would

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abuse its discretion in denying a stay. 544 U.S. at 278.

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Nothing in the record suggests that Petitioner has intentionally or maliciously failed to
pursue his potentially meritorious claims. Accordingly, the Court will grant stay and abeyance
under Rhines.

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IV.

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Conclusion and Order
The Court hereby ORDERS:

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1.

The Court GRANTS Petitioner's motion for stay and abeyance pursuant to Rhines

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v. Weber, 544 U.S. 269, 275 (1995), to permit exhaustion of the five unexhausted claims (grounds
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two through six) set forth in his petition for writ of habeas corpus.
2.

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Petitioner is DIRECTED to file a status report within thirty (30) days of the date of

this Order advising the Court of the status of the state court proceedings.

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3.

Petitioner shall file an additional status report every ninety (90) days thereafter.

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4.

Within thirty (30) days after the California Supreme Court issues a final order

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resolving the unexhausted claims, Petitioner shall file a motion to lift the stay and an amended

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habeas petition setting forth all exhausted claims. The Court shall then screen the petition
pursuant to the Rules Governing Section 2254 Cases.
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If Petitioner fails to comply with this Order, the Court will vacate the stay, nunc

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pro tunc to the date of this Order, and dismiss the petition without prejudice for failure to exhaust

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all claims but with leave to file an amended petition. See Anthony v. Cambra, 236 F.3d 568, 574

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(9th Cir. 2000). Such dismissal may render the petition untimely in light of the one-year statute of

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limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
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IT IS SO ORDERED.

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Dated:

March 3, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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