Valdez v. Muniz

Filing 9

FINDINGS and RECOMMENDATION to Deny, Without Prejudice, Motion to Stay Petition; FINDINGS and RECOMMENDATION to Deny, Without Prejudice, Motion to Appoint Counsel; ORDER DIRECTING Clerk of Court to Assign District Court Judge to Matter; CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Michael J. Seng. New Case No. 1:17-cv-00304 AWI MJS (HC), 1 , 2 , 3 , signed by Magistrate Judge Michael J. Seng on 4/14/17: 14-Day Deadline. (Hellings, J)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-00304 MJS (HC)
JOE DOMINGUEZ VALDEZ,

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v.

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W.L. MUNIZ,

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FINDINGS AND RECOMMENDATION TO
Petitioner, DENY, WITHOUT PREJUDICE, MOTION
TO STAY PETITION
FINDINGS AND RECOMMENDATION TO
DENY, WITHOUT PREJUDICE, MOTION
TO APPOINT COUNSEL

ORDER DIRECTING CLERK OF COURT
Respondent. TO ASSIGN DISTRICT COURT JUDGE TO
MATTER
(Docs. 2-3)

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I.

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

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a September 16, 2013
conviction from the Tulare County Superior Court for 26 counts including two counts of
attempted murder, discharge of a firearm at an inhabited dwelling, conspiracy,
participation in a criminal street gang, receipt of stolen property, and narcotics offenses.
(Pet., ECF No. 1.) In the petition, it appears that Petitioner is presenting four claims for
relief based on claims previously presented to the California Supreme Court in his direct

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appeals and collateral appeals in the form of petitions for writs of habeas corpus. (See

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Pet.)

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In the petition, Petitioner asserted that all of the claims were previously exhausted

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in state court. (See Pet. at 12 (Answering “Yes” to question 13 of the form petition that

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asks if all grounds for relief have been presented to the highest state court.).) Petitioner

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now moves the Court to stay the petition while he pursues additional claims that he is

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filing in the state courts. (Mot. to Stay, ECF No. 3.) However, Petitioner does not

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describe the additional claims he is attempting to bring in state court or the status of any

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petitions presently filed before the state courts.

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II.

Legal Standards

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A.

Exhaustion of State Remedies

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

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

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

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

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

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

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

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

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

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

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

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

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(9th Cir. 2000). In Duncan, the United States Supreme Court reiterated the rule as

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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
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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.

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Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule further, 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. Hiivala v. Wood, 195 F3d 1098,
1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir.
1996); . . . .

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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).

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B.

Stay and Abeyance

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A court may stay a petition and hold it in abeyance pursuant to either Kelly v.
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Small, 315 F.3d 1063 (9th Cir. 2002), or Rhines v. Weber, 544 U.S. 269, 125 S. Ct.
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1528, 161 L. Ed. 2d 440 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009).
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Kelly and Rhines set out different procedures and requirements for imposing a stay.
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Under Kelly, the petitioner amends his petition to delete any unexhausted claims. The
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court then stays and holds in abeyance the amended, fully exhausted petition, allowing
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the petitioner the opportunity to proceed to state court to exhaust the deleted claims. Id.
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(citing Kelly, 315 F.3d at 1070-71.) Later, the petitioner amends his petition to add the
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newly-exhausted claims to the original petition. Id. Under Rhines, a petitioner must meet
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three pre-conditions for a stay of a mixed petition: (1) a finding of good cause for
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petitioner's failure to exhaust all his claims before filing his habeas action; (2) a finding
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that the unexhausted claims are potentially meritorious; and (3) no indication that the
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petitioner engaged in intentionally dilatory tactics. Rhines, 544 U.S. at 278. If all three

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

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

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unexhausted claims.

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

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

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

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

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

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1173-74 (9th Cir. 2015).

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III.

Analysis

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

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attempt to exhaust new claims. These claims have not been described, have yet to be

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presented to the state court for review, and are not yet included in his federal habeas

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petition.

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

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

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

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

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

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The instant petition does not appear to be a mixed petition.1 It appears to contain

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only exhausted claims. If Petitioner wishes to present new and unexhausted claims,

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Petitioner must first move to amend the petition and file with this Court a petition which

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includes the claims originally presented and the new, unexhausted claims. Upon

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presenting the Court with a mixed petition and a motion to stay the mixed petition, the

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Petitioner has provided copies of the state court decisions, but not his petitions for writ of habeas
corpus which would provide the claims contained in the petitions. Accordingly, the Court is not in a position
to definitively tell if Petitioner’s claims have been properly exhausted.

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Court will consider the motion to stay and if it finds that the conditions for granting a stay

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are met, may grant the motion to stay.

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Petitioner is not now entitled to a stay. The Court denies the motion to stay

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without prejudice.

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IV.

Motion to Appoint Counsel

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Petitioner has requested the appointment of counsel.

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There currently exists no absolute right to appointment of counsel in habeas

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proceedings. See, e.g., Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Mitchell

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v. Wyrick, 727 F.2d 773, 774 (8th Cir. 1984). However, Title 18 U.S.C. ' 3006A(a)(2)(B)

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authorizes the appointment of counsel at any stage of the case if "the interests of justice

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so require." See Rule 8(c), Rules Governing Section 2254 Cases.

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In the present case, the Court does not find that the interests of justice require the

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appointment of counsel at the present time. Accordingly, the Court recommends that

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Petitioner’s motion to reconsider the denial of the motion to appoint counsel be denied

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without prejudice.

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V.

Recommendation

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Based on the foregoing, it is HEREBY RECOMMENDED that the motion to stay

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the petition for writ of habeas corpus and the motion to appoint counsel be DENIED

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without prejudice. Further, the Court ORDERS the Clerk of Court to assign a District

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Court Judge to the present matter.

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These Findings and Recommendations are submitted to the assigned United

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

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

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

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

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

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

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advised that failure to file objections within the specified time may waive the right to
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appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.

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2014).

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IT IS SO ORDERED.
Dated:

April 14, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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