Ornelas v. Hudnall

Filing 21

FINDINGS and RECOMMENDATIONS to Deny Motion for Stay and to Dismiss Unexhausted Claims signed by Magistrate Judge Erica P. Grosjean on 10/20/2017. Referred to Judge O'Neill; Objections to F&R due by 11/27/2017.(Flores, E)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 YVONNE ORNELAS, Petitioner, 9 10 11 12 13 Case No. 1:17-cv-01033-LJO-EPG-HC FINDINGS AND RECOMMENDATION TO DENY MOTION FOR STAY AND TO DISMISS UNEXHAUSTED CLAIMS v. HUDNALL, (ECF No. 6) Respondent. Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. The instant petition contains one exhausted and several 15 unexhausted claims, and Petitioner has moved for a stay while she returns to state court to 16 exhaust the claims that were not raised on direct appeal. As Petitioner has failed to establish 17 good cause for her failure to exhaust certain claims, the undersigned recommends denial of the 18 petition as to the unexhausted claims and also recommends that Petitioner be allowed to delete 19 the unexhausted claims in the petition and proceed with the sole exhausted claim. 20 I. 21 BACKGROUND 22 On May 23, 2017, Petitioner filed the instant federal habeas petition challenging her 2013 23 convictions in the Kern County Superior Court in the United States District Court for the 24 Northern District of California. (ECF No. 1). Subsequently, the petition was transferred to the 25 Eastern District. (ECF Nos. 8, 13). 26 On August 14, 2017, this Court ordered Petitioner to either: show cause why the mixed 27 petition should not be dismissed for failure to exhaust state court remedies; withdraw the 28 unexhausted claims and proceed with the exhausted claim; or voluntarily withdraw the entire 1 1 petition without prejudice to refiling after exhausting state court remedies. (ECF No. 16). To 2 date, Petitioner has not filed a response, and the time for doing so has passed. 3 II. 4 DISCUSSION Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 5 6 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 7 to file a response, if it “plainly appears from the petition and any attached exhibits that the 8 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 9 Cases. A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 10 11 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 12 on comity to the state court and gives the state court the initial opportunity to correct the state’s 13 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 14 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 15 providing the highest state court with a full and fair opportunity to consider each claim before 16 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 17 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). If Petitioner has not sought relief in the California Supreme Court for the claims that she 18 19 raises in the instant petition, the Court cannot proceed to the merits of those claims. 28 U.S.C. 20 § 2254(b)(1). Here, it appears that other than the sufficiency of the evidence claim regarding 21 driving under the influence, Petitioner has not presented her claims to any state court. (ECF No. 22 1 at 3, 5).1 Petitioner explains that she failed to exhaust because counsel did not raise the claims 23 that she requested. (ECF No. 1 at 5–6). Additionally, Petitioner moves for stay and abeyance 24 pursuant to Rhines v. Weber, 544 U.S. 269 (2005), based on the discovery of new evidence that 25 the arresting officer falsified a police report. (ECF No. 6). Under Rhines v. Weber, “stay and abeyance” is available only in limited circumstances, 26 27 and only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims 28 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 1 are not “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory 2 litigation tactics. 544 U.S. at 277–78. The Ninth Circuit has recognized that there is little 3 authority on what constitutes good cause to excuse a petitioner’s failure to exhaust. Blake v. 4 Baker, 745 F.3d 977, 980 (9th Cir. 2014). However, the Ninth Circuit stated that “[w]hile a bald 5 assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence 6 to justify a petitioner’s failure to exhaust, will.” Id. at 982. In Blake, the Ninth Circuit held that 7 ineffective assistance of postconviction counsel can constitute good cause for a Rhines stay. Id. 8 at 983. The petitioner satisfied this standard where he asserted ineffective assistance of counsel, 9 “supported by evidence that his state post-conviction counsel failed to discover, investigate, and 10 present to the state courts the readily available evidence of Blake’s abusive upbringing and 11 compromised mental condition.” Id. 12 In support of the motion for stay, Petitioner alleges a recent discovery of new evidence 13 that the arresting officer falsified a police report. (ECF No. 6 at 2). However, Petitioner does not 14 provide a copy of the newly discovered evidence or describe what the newly discovered evidence 15 is. Petitioner also does not provide any details as to when this discovery was made or explain the 16 significance of this new evidence with respect to her unexhausted claims. 17 Additionally, Petitioner contends that “counsel did not raise the issues I requested,” 18 noting that “appellate counsel has the duty to raise all viable issues before this court and did not.” 19 (ECF No. 1 at 5–6). To the extent Petitioner argues that ineffective assistance of appellate 20 counsel constitutes good cause for failure to exhaust, Petitioner has not developed an ineffective 21 assistance of counsel argument. See Jones v. Barnes, 463 US. 745, 754 (1983) (holding that 22 appellate counsel does not have a constitutional obligation to raise every nonfrivolous issue on 23 appeal). Petitioner also fails to support this bald assertion with “evidence to justify [her] failure 24 to exhaust.” Blake, 745 F.3d at 982. For example, Petitioner fails to provide documentation that 25 she discussed the unexhausted claims with appellate counsel and was disregarded. See Nogueda 26 v. California, No. 2:14-cv-1045-GGH, 2014 WL 5473548, at *2 (E.D. Cal. Oct. 23, 2014) 27 (“[P]etitioner has failed to support the request to stay . . . as required in Blake (i.e., there is no 28 documentation—as opposed to oral assertions—showing he discussed these claims with trial 3 1 and/or appellate counsel and was ignored).”). Accordingly, the Court finds that Petitioner has 2 failed to demonstrate good cause for her failure to exhaust under Rhines. 3 III. 4 RECOMMENDATION 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s motion for stay (ECF No. 6) be DENIED; and 7 2. Petitioner be allowed to delete the unexhausted claims in the petition and proceed with 8 the sole exhausted claim (sufficiency of the evidence claim regarding driving under the 9 influence). See Rhines, 544 U.S. at 278 (“[I]f a petitioner presents a district court with a 10 mixed petition and the court determines that stay and abeyance is inappropriate, the court 11 should allow the petitioner to delete the unexhausted claims and to proceed with the 12 exhausted claims if dismissal of the entire petition would unreasonably impair the 13 petitioner’s right to obtain federal relief.”). 14 This Findings and Recommendation is submitted to the assigned United States District 15 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 16 Rules of Practice for the United States District Court, Eastern District of California. Within 17 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 18 written objections with the court and serve a copy on all parties. Such a document should be 19 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 20 United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 21 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 22 time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 23 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 25 26 IT IS SO ORDERED. Dated: October 20, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 27 28 4

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