Jimenez v. Sutton

Filing 9

FINDINGS and RECOMMENDATIONS to deny 2 MOTION to STAY; ORDER to SHOW CAUSE why 1 Petition should not be dismissed for failure to exhaust all claims; ORDER directing Clerk's Office to assign a District Judge signed by Magistrate Judge Michael J. Seng on 11/28/2017. Case assigned to District Judge, Anthony W. Ishii. Referred to Judge Anthony W. Ishii; Objections to F&R's and Show Cause Response due within 30-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 Case No. 1:17-cv-00333 MJS (HC) OSCAR JIMENEZ, 13 v. 14 15 16 JOHN SUTTON, FINDINGS AND RECOMMENDATIONS TO Petitioner, DENY PETITIONER’S MOTION TO STAY; (ECF No. 2) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR FAILURE TO EXHAUST ALL CLAIMS Respondent. (ECF No. 1) 17 ORDER DIRECTING CLERK’S OFFICE TO ASSIGN A DISTRICT JUDGE 18 19 20 21 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 22 23 24 25 26 27 28 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges an August 6, 2013 conviction from the Kern County Superior Court on two counts of second degree murder, two counts of gross vehicular manslaughter while intoxicated, and driving with a suspended license. (ECF No. 1.) In his petition, Petitioner presents four1 claims for relief including 1 In two orders to show cause concerning the motion to stay, the Court mistakenly stated that Petitioner was pursuing five claims. (ECF Nos. 5; 7.) However, upon review it is clear there are only the four claims for relief discussed below. 1 1 claims for violation of the Fourth Amendment, ineffective assistance of counsel, violation 2 of the Eighth Amendment, and prosecutorial misconduct. (See ECF No. 1) 3 Petitioner filed the instant petition on March 8, 2017. (ECF No. 1) On the same 4 date, Petitioner filed a motion to stay the petition. (ECF No. 2.) In the motion, Petitioner 5 states that he desires to raise additional federal grounds that had not been raised or 6 exhausted in state court. (Id.) However, Petitioner did not further specify which claims 7 were unexhausted or what he had done to exhaust those claims in state court. (Id.) 8 On April 14, 2017, the Court ordered Petitioner to show cause why his motion to 9 stay should be granted and ordered him to state explicitly which of his claims were 10 unexhausted and what efforts he had made to exhaust them. (ECF No. 5.) On May 15, 11 2017, Petitioner filed a timely response outlining his efforts to exhaust and providing 12 detailed background information why the claims were not exhausted, (ECF No. 6.) The 13 Court then ordered Petitioner to provide a comprehensive list of the specific claims he 14 has exhausted and a list of those he is still attempting to exhaust in state court. (ECF No. 15 7.) Petitioner filed a timely response detailing his efforts to exhaust two unexhausted 16 claims in state court. (ECF No. 8.) 17 For the reasons outlined below, the Court recommends that Plaintiff’s motion to 18 stay be denied. 19 I. Background 20 A. 2254 Petition 21 Petitioner asserts four claims in his 2254 petition: (1) Violation of the Fourth 22 Amendment; (2) Ineffective assistance of counsel; (3) Violation of the Eighth 23 Amendment; and (4) Brady 2 violation and prosecutorial misconduct. (ECF No. 1.) 24 According to Petitioner’s own admission, none of the four claims were exhausted in state 25 court. (ECF No. 1 at 12.) Petitioner asserts that he has not yet obtained all of the records 26 necessary to raise the claims in state court. (Id.) 27 2 Brady v. Maryland, 373 U.S. 83 (1963). 28 2 1 Petitioner’s ineffective assistance of counsel claim appears to include multiple 2 sub-claims asserting prosecutorial misconduct, including that the prosecutor used 3 improper evidence against him at trial and submitted improper instructions to the jury, 4 misconduct which Petitioner claims his appellate counsel failed to raise on appeal. (Id. at 5 7.) 6 B. Pending State Petition 7 In response to the second order to show cause, Petitioner declares that his 8 current petition in state court asserts two claims for relief: (1) “Petitioner believes District 9 Attorney Robert A. Murray . . . presented to the jury information that he knew was not 10 accurate, allowing jurors to believe Petitioner had been already in prior accidents due to 11 D.U.I. creating biased -prejudgment on jurors’ behalf. District Attorney Murray continued 12 to create bad thought, it was said that it was harmless error that with all information 13 jurors would have known my past, yet jurors were misled on present information, 14 misguided by a government representative[;]”; and (2) “Petitioner claims that Robert A. 15 Murray not only violated my rights by his actions in court . . . but feels he can joke, 16 forget, or not be professional. Petitioner [believes] that [had] Murray . . . not allowed that 17 questionable exhibit 12 to be shown, read, Petitioner would have had a different 18 outcome, as [happened] with Respondent Efrain Velasco-Palcios.[ 3 ] Petitioner also 19 believes there was negligence in the introduction of the information.” (ECF No. 8 at 3.) 20 Additionally, Petitioner attached the order issued by the Kern County Superior 21 Court denying the state court petition. (Id. at 54-57.) The claims referred to in that order 22 are consistent with those stated in Petitioner’s response to the second order to show 23 cause. Specifically, Kern County Superior Court summarizes Petitioner’s claim as 24 follows: “Petitioner contends that prosecutor, Rober[t] Murray, introduced false evidence 25 and misrepresented the prior convictions. Petitioner states that the prosecutor sought to 26 3 27 28 Petitioner is referring to the case of Efrain Velasco-Palicios, a defendant in a case prosecuted by District Attorney Murray and overturned by California’s Fifth Appellate District in 2015 on the basis of prosecutorial misconduct. Petitioner attached the opinion of the Fifth Appellate District in that case to the response to the second order to show cause. (ECF No. 8 at 6-20.) 3 1 introduce a mug shot of Petitioner over defense objections. Petitioner likens this conduct 2 to People v. Velasco-Palacios, [235 Cal. App. 4th 439 (Feb. 24, 2015)].” (Id. at 54.) 3 C. 4 Petitioner seeks a stay of this petition so that the statute of limitations does not 5 run on his claims while he exhausts them in state court. (ECF No. 2 at 2.) Petitioner 6 asserts that he is diligently pursuing state remedies, but the terms of his incarceration 7 are hampering his efforts. (Id.) Specifically, he asserts that the documents he needs to 8 pursue his state claims are in the possession of several different parties and he needs 9 time to obtain them, prepare filings, and exhaust the claims in court. (Id.) 10 II. Motion to Stay Legal Standard 11 The Ninth Circuit has found that "'a motion to stay and abey section 2254 12 proceedings' to exhaust claims 'is generally (but not always) dispositive of the 13 unexhausted claims,'" and that Magistrate judge must present findings 14 recommendations to a District Court Judge, rather than rule on the motion. Bastidas v. 15 Chappell, 791 F.3d 1155, 1163 (9th Cir. 2015); Mitchell v. Valenzuela, 791 F.3d 1166, 16 1173-74 (9th Cir. 2015). Accordingly, the undersigned is issuing findings and 17 recommendations, as opposed to an Order. and 18 A district court has discretion to stay a petition which it may validly consider on the 19 merits. Rhines v. Weber, 544 U.S. 269, 276 (2005); King v. Ryan, 564 F.3d 1133, 1138– 20 39 (9th Cir. 2009). A petition may be stayed either under Rhines, or under Kelly v. Small, 21 315 F.3d 1063 (9th Cir. 2003). King v. Ryan, 564 F.3d 1133, 1138–41 (9th Cir. 2009). 22 Under Rhines, the Court has discretion to stay proceedings; however, this 23 discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 24 (“AEDPA”). Rhines, 544 U.S. at 276–77. In light of AEDPA's objectives, “stay and 25 abeyance [is] available only in limited circumstances” and “is only appropriate when the 26 district court determines there was good cause for the petitioner's failure to exhaust his 27 claims first in state court.” Id. at 277–78. A stay of a mixed petition pursuant to Rhines is 28 required only if 1) the petitioner has good cause for his failure to exhaust his claims in 4 1 state court; 2) the unexhausted claims are potentially meritorious; and 3) there is no 2 indication that the petitioner intentionally engaged in dilatory litigation tactics. Id. 3 A petition may also be stayed pursuant to the procedure set forth by the Ninth 4 Circuit in Kelly. 315 F.3d 1063. Under this three-step procedure: 1) the petitioner files an 5 amended petition deleting the unexhausted claims; 2) the district court stays and holds 6 in abeyance the fully exhausted petition; and 3) the petitioner later amends the petition 7 to include the newly exhausted claims. See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 8 2009). However, the amendment is only allowed if the additional claims are timely. Id. at 9 1140–41. 10 A stay under Rhines permits a district court to stay a mixed petition and does not 11 require that unexhausted claims be dismissed while the petitioner attempts to exhaust 12 them in state court. In contrast, a stay pursuant to the three-step Kelly procedure allows 13 a district court to stay a fully exhausted petition, and it requires that any unexhausted 14 claims be dismissed. Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). Additionally, the 15 Kelly procedure remains available after the decision in Rhines, and is available without a 16 showing of good cause. King v. Ryan, 564 F.3d at 1140. 17 III. Discussion 18 A. 19 As noted above, Petitioner asserts in the petition that none of the four claims 20 being pursued here have been exhausted in state court. (ECF No. 1 at 6-10.) The Kelly 21 procedure is premised on the assumption that a petitioner has a mixed petition. It is not 22 available where, as here, the petition is not mixed. See Brown v. Dexter, No. CV 08- 23 01119-SGL (VBK), 2008 WL 4384181, *4 (C.D. Cal. Aug. 21, 2008) (discussing how the 24 Kelly procedure only applies to mixed petitions). Accordingly, a Kelly stay cannot be 25 pursued because such a stay requires the petitioner to file an amended petition deleting 26 all unexhausted claims, and Petitioner cannot do that here. See King v. Ryan, 564 F.3d 27 at 1135. 28 Motion to Stay Furthermore, a Rhines stay is reserved for instances where the petitioner has filed 5 1 a “mixed petition” -- i.e., a petition that contains both exhausted and unexhausted claims. 2 See Rhines, 544 U.S. at 277-78. Here, Petitioner has admittedly filed a petition 3 containing only unexhausted claims; therefore, a Rhines stay is unavailable. 4 So, because Petitioner has filed a petition containing only unexhausted claims, 5 stays pursuant to both Rhines and Kelly are unavailable. See Brown, 2008 WL 4384181 6 (denying motion for stay because all claims were unexhausted and therefore recognized 7 stay procedures were unavailable); Prado v. Woodford, CVF051316AWISMSHC, 2006 8 WL 306908, at *3 (E.D. Cal. Feb. 8, 2006) (“The [c]ourt declines to extend the grant of a 9 protective stay and abeyance to a case such as this where the petition contains only 10 unexhausted claims.”). 11 Accordingly, the motion to stay should be denied. 12 B. 13 The Supreme Court “has long held that a state prisoner's federal habeas petition 14 should be dismissed if the prisoner has not exhausted available state remedies as to any 15 of his federal claims.” Coleman v. Thompson, 501 U.S. 722, 731 (1991). “Once a district 16 court determines that a habeas petition contains only unexhausted claims . . . it may 17 simply dismiss the habeas petition for failure to exhaust.” Raspberry v. Garcia, 448 F.3d 18 1150, 1154 (9th Cir. 2006). Furthermore, Rule 4 of the Rules Governing Section 2254 19 Cases allows a district court to dismiss a petition if it “plainly appears from the face of the 20 petition and any exhibits annexed to it that the petitioner is not entitled to relief in the 21 district court[.]” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory 22 Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of 23 habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's 24 motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 260 25 F.3d 1039 (9th Cir.2001). The Ninth Circuit, in Herbst v. Cook, concluded that a district 26 court may dismiss sua sponte a habeas petition on statute of limitations grounds so long 27 as the court provides the petitioner adequate notice of its intent to dismiss and an 28 opportunity to respond. 260 F.3d at 1041–42. Show Cause Why Petition Should not be Dismissed. 6 1 A petitioner who is in state custody and wishes to collaterally challenge his 2 conviction by a petition for writ of habeas corpus must exhaust state judicial remedies. 3 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based on comity to the state court 4 and gives the state court the initial opportunity to correct the state's alleged constitutional 5 deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 6 509, 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th Cir.1988). 7 A petitioner can satisfy the exhaustion requirement by providing the highest state 8 court with a full and fair opportunity to consider each claim before presenting it to the 9 federal court. Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 10 270, 276 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir.1996). A federal court will 11 find that the highest state court was given a full and fair opportunity to hear a claim if the 12 petitioner has presented the highest state court with the claim's factual and legal basis. 13 Duncan, 513 U.S. at 365 (legal basis); Kenney v. Tamayo–Reyes, 504 U.S. 1 (1992) 14 (factual basis). 15 Here, Petitioner has submitted a petition in which he admits that all claims are 16 unexhausted. (ECF No. 1 at 12 (“None of the grounds in this petition have been 17 exhausted in state court because Petitioner has not yet been able to obtain all 18 documents and records necessary to raise the issues in state court.”).) Accordingly, on 19 the face of the petition, it “plainly appears from the face of the petition . . . that the 20 petitioner is not entitled to relief in the district court” because none of the claims have 21 been exhausted in state court. 22 For this reason, the Court shall order Petitioner to show cause why the 23 undersigned should not recommend dismissal of the petition pursuant to Rule 4 of the 24 Rules Governing Section 2254 Cases and Raspberry, 448 F.3d at 1154, because none 25 of Petitioner’s claims have been presented to the highest state court as required by the 26 exhaustion doctrine. 27 C. Assignment of District Judge 28 The Court shall direct the Clerk of the Court to assign a United States District 7 1 Judge to this case to address the recommendations herein. 2 IV. 3 4 Conclusion For the foregoing reasons, IT IS HEREBY RECOMMENDED that Petitioner’s motion for stay and abeyance (ECF No. 2) be DENIED. 5 Furthermore, IT IS HEREBY ORDERED that Petitioner shall, within thirty (30) 6 days of this Order, show cause why this Court should not recommend dismissal of his 7 petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases and Raspberry, 8 448 F.3d at 1154, because none of the claims have been presented to the highest state 9 court as required by the exhaustion doctrine. 10 11 The Court HEREBY DIRECTS the Clerk of Court to assign a United States District Judge to this case. 12 13 14 15 IT IS SO ORDERED. Dated: November 28, 2017 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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