Casillas v. Secretary of Corrections

Filing 21

ORDER GRANTING 19 Third Motion for Stay and Abeyance signed by Magistrate Judge Sheila K. Oberto on 8/22/2017. First Status Report due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OMAR CASILLAS,

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Case No. 1:17-cv-00511-LJO-SKO HC

Petitioner,

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ORDER GRANTING THIRD MOTION
FOR STAY AND ABEYANCE

v.

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SECRETARY OF CORRECTIONS,

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Respondent.

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(Doc. 19)

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Petitioner Omar Casillas, a state prisoner proceeding with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, has filed a third motion for stay and abeyance.1 Petitioner

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contends that the Court erred in concluding that the three unexhausted grounds added to the first

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amended petition were barred by the statute of limitations. Petitioner is correct. In reviewing the

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motion, the Court recognizes, for the first time, that Petitioner had filed a state petition in sufficient

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time to toll the statute of limitations.

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I.

Procedural and Factual Background 2

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On August 27, 2013, a Kern County jury convicted Petitioner of crimes including attempted

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murder (Cal. Penal Code §§ 664 and 187), false imprisonment (Cal. Penal Code § 236), assault with
a semi-automatic firearm (Cal. Penal Code § 245(a)), and unlawful possession of a firearm and

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The second motion for stay and abeyance in included within the first amended petition for writ of habeas corpus filed
July 24, 2017.
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The procedural and factual background are derived from the record.

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ammunition (Cal. Penal Code §§ 29800(a)(1) and 30305(a)(1)), as well as at least one weapons

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enhancement (Cal. Penal Code § 12022.53(c)). On October 25, 2013, the Kern County Superior

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Court sentenced Petitioner to 29 years in prison.

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Represented by appointed counsel, Petitioner filed a direct appeal to the California Court of
Appeal. On October 14, 2014, Petitioner personally attempted to file a document entitled
“Appellant’s Supplemental Opening Brief” in the then-pending appeal. The appellate court clerk

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declined filing since Petitioner was then represented by counsel. As discussed in detail in the
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findings and recommendation that the District Court deny the first motion for stay and abeyance

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(Doc. 11), Petitioner’s appellate counsel declined to include in the direct appeal nine claims that

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Petitioner sought to include. Counsel explained in detail her reasons for omitting the requested

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claims (claims were frivolous or lacking in a legal or factual basis) and advised Petitioner that he

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could include those claims in a habeas petition. Counsel suggested that Petitioner file the petition
only after he had reviewed the opening brief in his direct appeal. Petitioner did not file a state

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habeas petition at that time.
The California Court of Appeal affirmed the conviction on December 10, 2015. On
February 17, 2016, the California Supreme Court denied review.

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On April 5, 2017, Petitioner filed a federal petition for writ of habeas corpus pursuant to 28

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U.S.C. § 2254. The petition alleged two claims of ineffective assistance of trial counsel, one claim

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of trial court error in failing to appoint counsel to represent Petitioner in his new trial motion, and

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one claim of ineffective assistance of appellate counsel. None of these claims were alleged in
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specific terms. Claims one, two, and four stated only: “Ineffective assistance of [trial or appellate]

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counsel, within the meaning of the 5th, 6th, and 14th Amendment[s] to the U.S. Constitution.”

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On the same date, Petitioner filed his first motion for stay and abeyance, specifically

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requesting that the Court grant a stay pursuant to Rhines v. Weber, 544 U.S. 269, 275 (2005). In

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findings and recommendations dated May 11, 2017, the Magistrate Judge recommended that the

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District Court decline stay and abeyance. The Magistrate Judge found that the first three grounds

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for relief had been exhausted in Petitioner’s direct appeal. Her analysis of applicable law

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concluded that ground four, which was the sole unexhausted ground for relief, lacked merit because

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(1) Petitioner had no federal constitutional right to counsel for preparation of a habeas petition;

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(2) the Sixth Amendment to the United States Constitution did not require appellate counsel to

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incorporate the nine claims suggested by Petitioner; and (3) Petitioner has not established good
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cause for his delay in pursuing habeas relief. On June 12, 2017, as permitted by the findings and

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recommendations, Petitioner filed objections to the findings and recommendations in which he

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sough to establish the timeliness of his motion for stay and abeyance. On June 22, 2017, the

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District Court adopted the Findings and Recommendations in full, denying the motion for stay and

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abeyance and granting Petitioner thirty days in which to submit an amended petition including only
the first three grounds for relief.

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On July 24, 2017, Petitioner filed a first amended petition in which he combined the first

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three (exhausted) grounds of the original petition into a single ground and added three additional

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grounds: (1) prosecutorial misconduct; (2) a Confrontation Clause violation (Crawford v.

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Washington, 541 U.S. 36, 59 (2004)); and (3) cumulative error. The amended petition included a

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second motion for stay and abeyance. The amended petition did not comply with the terms of the

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Court’s leave to amend the petition in its June 22, 2017, order, and added three new unexhausted

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grounds. As a result, the amended petition was also a mixed petition. The Magistrate Judge denied
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the motion for stay and abeyance, and dismissed the amended petition for failure to comply with

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the June 22, 2017 order, but provided that Petitioner could file a second amended petition

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complying with the June 22, 2017 order within 21 days.

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On August 7, 2017, Petitioner filed a third motion for stay and abeyance, contending that

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the additional unexhausted grounds were timely in that they were filed and pending in the

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California state courts before the expiration of the statute of limitations. Petitioner explained that

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on March 1, 2017, he filed a petition for writ of habeas corpus, including the three unexhausted

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claims alleged in the first amended federal petition, in Kern County Superior Court, which denied

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the petition on April 24, 2017. On June 5, 2017, Petitioner filed a petition in the California Court

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of Appeal, which summarily denied the petition on June 29, 2017. On July 10, 2017, Petitioner
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filed a habeas petition which remains pending in the California Supreme Court.
II.

On February 17, 2016, the California Supreme Court denied review in the direct appeal.

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Statute of Limitations Tolled During State Postconviction Proceedings

Judgment in the case became final on May 18, 2016. Thus, the one-year statute of limitations
would have ended on May 18, 2017. 28 U.S.C. § 2244(d). Because Petitioner filed the petition
seeking state habeas relief before the federal statute of limitations had run, however, running of the

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federal limitations period is tolled during the pendency of state habeas proceedings. See 28 U.S.C.
§ 2244(d)(2). As a result, the three claims added in the first amended petition are not barred by the

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statute of limitations.

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III.

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Standards for Granting an Order of Stay and Abeyance
A federal district court may not address a petition for writ of habeas corpus unless the

petitioner has exhausted state remedies with respect to each claim raised. Rose v. Lundy, 455 U.S.

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509, 515 (1982). A petition is fully exhausted when the highest state court has had a full and fair
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opportunity to consider all claims before the petitioner presents them to the federal court. Picard v.

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Connor, 404 U.S. 270, 276 (1971). "[P]etitioners who come to federal courts with 'mixed' petitions

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run the risk of forever losing their opportunity for federal review of the unexhausted claims.

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Rhines, 544 U.S. at 275. Because all claims alleged in the first amended petition are not exhausted,
it is a mixed petition.

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Federal district courts should stay mixed petitions only in limited circumstances. Id. at 277.

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A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for failing to

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have first exhausted all claims in state court; (2) the claims potentially have merit; and (3) petitioner

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has not been dilatory in pursuing the litigation. Id. at 277-78.

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In the alternative, a court may stay a mixed petition if (1) the petitioner amends his petition
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to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully

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exhausted petition, allowing the petitioner to proceed to exhaust the deleted claims in state court;

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and (3) petitioner later amends his petition and reattaches the newly exhausted claims to the

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original petition. Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on other

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grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The Kelly procedure is riskier than the

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Rhines procedure since it does not protect the petitioner's unexhausted claims from expiring during

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the stay. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). Despite the risk of the unexhausted
claims becoming time-barred in the course of the Kelly procedure, a petitioner may elect to use that

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alternative since it does not require him to demonstrate good cause as Rhines does. King, 564 F.3d

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at 1140.

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Petitioner’s first motion for stay and abeyance specifically requested a stay pursuant to
Rhines. In rejecting the first motion, the Court found that Petitioner had not demonstrated good

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cause for his undue delay in pursuing that claim through a state habeas petition. Petitioner has
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presented no evidence to persuade the Court to change its finding. Accordingly, the Court will
grant Petitioner an order of stay and abeyance pursuant to Kelly.
Petitioner has already filed a second amended petition omitting the unexhausted claims.
Doc. 20. Accordingly, as prescribed by the Kelly procedure, the Court will stay proceedings and

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hold the petition in abeyance until the California Supreme Court has issued its determination in the

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state petition now pending before it. At that time, Petitioner may again amend the petition to

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reinstate the unexhausted claims.

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IV.

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Conclusion and Order
Based on the foregoing, the Court hereby ORDERS as follows:

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Petitioner's motion for stay and abeyance pursuant to Kelly v. Small, 315 F.3d 1063, 1070-

71 (9th Cir. 2003), to permit exhaustion of the three unexhausted claims included alleged in the first

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amended petition, is GRANTED.

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2.

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

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

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

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

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

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including all exhausted claims. The Court shall then screen the petition pursuant to the Rules
Governing Section 2254 Cases.

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the date of this Order, and dismiss the petition without prejudice for failure to exhaust all claims but

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with leave to file an amended petition. See Anthony v. Cambra, 236 F.3d 568, 574 (9th Cir. 2000).

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If Petitioner fails to comply with this Order, the Court will vacate the stay, nunc pro tunc to

Such dismissal may render the petition untimely in light of the one-year statute of limitations under

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

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Dated:

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August 22, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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