Griffin v. Martinez

Filing 15

ORDER to SHOW CAUSE Concerning Petitioner's Motion to Stay signed by Magistrate Judge Michael J. Seng on 01/09/2017. Thirty-Day Deadline. (Flores, E)

Download PDF
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-01137-DAD-MJS (HC) ROBERT LEE GRIFFIN, 13 v. 14 (ECF No. 9) 15 16 ORDER TO SHOW CAUSE CONCERNING Petitioner, PETITIONER’S MOTION TO STAY JOEL D. MARTINEZ, Respondent. THIRTY-DAY RESPONSE DEADLINE 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 20 corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a January 15, 2014 21 conviction from the Fresno County Superior Court on two counts of lewd and lascivious 22 acts on a child and one count of sexual penetration of a child 10 years old or younger. 23 (ECF No. 1.) 24 The petition presents the following three 1 claims for relief: (1) Petitioner’s due 25 process rights were violated when the state court admitted data and images seized from 26 27 28 1 The form attached to the petition lists four claims for relief (ECF No. 1 at 8-22). However, the actual petition, including memorandum and points of law, identifies only three claims for relief (id. at 38-52). The third claim has two parts and perhaps explains Petitioner’s reference to four claims. 1 1 Petitioner’s computer and evidence of his prior misdemeanor conviction; (2) Petitioner’s 2 due process rights were violated when the state court allowed the jury to be instructed 3 with CALCRIM No. 1193 (child sexual abuse accommodation syndrome (“CSAAS”) 4 expert testimony may be considered in evaluating credibility of alleged victims); and (3) 5 Petitioner’s right to present a complete defense and his due process rights were violated 6 when the state court excluded evidence of victim’s prior molestation. 7 Petitioner filed the instant habeas petition on August 23, 2017. (ECF No. 1.) On 8 August 25, 2017, the Court ordered Respondent to file a response. (ECF No. 3.) On 9 October 12, 2017, Petitioner filed a motion to stay the petition. (ECF No. 9.) In the 10 motion, Petitioner argues that his case should be stayed pursuant to Rhines v. Weber, 11 544 U.S. 276 (2005) and 28 U.S.C. § 2254(e)(2)(A)(ii) because impeachment material 12 he requested from his trial prosecutor three and a half years ago was only recently 13 received. (ECF No. 9.) Neither the motion or reply briefs describe the content of the 14 material or Petitioner’s efforts to exhaust the state petition. (ECF Nos. 9; 14.) 15 Respondent opposes the motion, arguing Petitioner has not demonstrated good 16 cause for a stay. He filed his habeas petition more than thirteen months before the 17 statute of limitations would have required him to do so. Unable to explain why he 18 “rushed” to file, he also is unable to show good cause for a stay now. 19 20 Concurrent with the opposition to the motion to stay, Respondent filed an answer to the petition. (ECF No. 10.) Petitioner did not file a traverse. 21 For the reasons outlined below, the Court orders Petitioner to show cause why 22 the motion to stay should not be denied for failure to identify the unexhausted claims 23 Petitioner wishes to pursue in state court. Petitioner shall respond to this Order within 24 thirty days and describe the claims that he seeks to exhaust during the stay if it is 25 granted. 26 I. Legal Standard 27 There are two procedures available to federal habeas petitioners who wish to 28 proceed with exhausted and unexhausted claims for relief. Under the Rhines procedure, 2 1 a district court may stay a petitioner's “mixed petition” (containing both exhausted and 2 unexhausted claims), while petitioner returns to state court to exhaust his unexhausted 3 claims. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also King v. Ryan, 564 F.3d 4 1133, 1140 (9th Cir. 2009). A stay under Rhines is appropriate only when petitioner has 5 demonstrated good cause for failing to previously exhaust his claims in state court, and 6 is not available if the unexhausted claims are “plainly meritless,” or petitioner has 7 engaged in “abusive litigation tactics or intentional delay.” Rhines, 544 U.S. at 277–78. 8 The Kelly procedure has been described by the Ninth Circuit Court of Appeals to 9 involve the following three-step process: 10 12 (1) petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition. 13 King v. Ryan, 564 F.3d at 1135 (citing Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 14 2003)). 11 15 Importantly, “the Kelly procedure . . . is not premised upon a showing of good 16 cause.” King, 564 F.3d at 1140. However, “[a] petitioner seeking to use the Kelly 17 procedure will be able to amend his unexhausted claims back into his federal petition 18 once he has exhausted them only if those claims are determined to be timely” under the 19 Antiterrorism and Effective Death Penalty Act of 1996’s (AEDPA) statute of limitations.2 20 King, 564 at 1140–41. Thus, the Kelly procedure, in contrast to the Rhines procedure, 21 does not protect a petitioner's unexhausted claims from expiring during a stay and 22 becoming time-barred in federal court. King, 564 F.3d at 1140–41; see also Duncan v. 23 Walker, 533 U.S. 167, 172-75 (2001) (unlike the filing of a state habeas petition, the 24 filing of a federal habeas petition does not toll AEDPA's statute of limitations). “[T]he 25 2 26 27 28 AEDPA’s limitation period is calculated from the “latest” of four commencement dates. See 28 U.S.C. § 2244(d)(1)(A) (date on which the judgment became final); § 2244(d)(1)(B) (date on which the illegal stateaction impediment to filing was removed); § 2244(d)(1)(C) (date on which the asserted constitutional right was initially recognized by the U.S. Supreme Court and made retroactive to cases on collateral review); and § 2244(d)(1)(D) (date on which the factual predicate of the claim could have been discovered through due diligence). 3 1 Kelly procedure, unlike the Rhines procedure, does nothing to protect a petitioner's 2 unexhausted claims from untimeliness in the interim.” King, 564 F.3d at 1141. 3 If a newly exhausted claim is time-barred, it may be added in an amended petition 4 only if it “relates back” to petitioner's original exhausted claims. However, a new claim 5 does not “relate back” to the original petition simply because it arises from “the same 6 trial, conviction, or sentence.” Mayle v. Felix, 545 U.S. 644, 662-64 (2005). Rather, the 7 new claim must be of the same “time and type” as the original exhausted claims, and 8 share a “common core of operative facts” with those claims. Id. at 659. 9 The decisions in both Kelly and Rhines “are directed at solving the same 10 problem—namely, the interplay between AEDPA's one-year statute of limitations and the 11 total exhaustion requirement first articulated in Rose v. Lundy, 455 U.S. 509 (1982).” 12 King, 564 F.3d at 1136. 13 II. Discussion 14 While the motion indicates that Petitioner seeks a stay pursuant to Rhines, the 15 three claims raised in the Petition are exhausted. (See ECF No. 1 at 8-10.)3 Because the 16 instant petition is not a “mixed petition,” Rhines is not applicable. King, 564 F.3d at 1140, 17 1143 (“Instead, a petitioner may invoke Kelly's three-step procedure subject only to the 18 requirement that the amendment of any newly exhausted claims back into the petition 19 must satisfy Mayle.”). Furthermore, because Petitioner has not asserted his proposed 20 new claims, the Court cannot determine if they are “plainly meritless,” or if Petitioner has 21 engaged in “abusive litigation tactics or intentional delay.” Rhines, 544 U.S. at 277–78. 22 The district court has discretion to implement stay-and-abeyance under Kelly 23 where the standard for a Rhines stay is not met. King, 564 F.3d at 1143. Under Kelly, the 24 court may stay a petition containing only exhausted claims while allowing the petitioner 25 to proceed to state court to exhaust additional claims. King, 564 F.3d at 1135 (citing 26 27 28 3 In the answer to the petition, Respondent effectively acknowledges that Petitioner exhausted his three claims in state court through the appeals process. (ECF No. 10 at 8 (“Petitioner’s claims are exhausted only to the extent that he presented the same factual and legal bases for those claims in state court.”).) 4 1 Kelly, 315 F.3d at 1070-71). The instant petition, asserting only exhausted claims, 2 satisfies the first step under Kelly. As set forth above, the Court is not required to find 3 good cause to proceed to the second step of Kelly, which would be to stay and hold this 4 petition in abeyance while Petitioner exhausts his new claims in the state courts. 5 However, as with Petitioner’s shortcomings concerning the Rhines standard, the 6 Court finds the motion incomplete under Kelly as well. While Kelly does not require the 7 Court to find “good cause,” all motions filed in federal court must be filed in good faith. 8 See Fed. R. Civ. P. 11. Petitioner not having set forth the unexhausted claims he seeks 9 to pursue in state court, the Court cannot determine if this stay is being pursued in good 10 faith. Furthermore, in establishing the Kelly stay, the Ninth Circuit emphasized “clear 11 appropriateness of a stay when valid claims would otherwise be forfeited.” Kelly, 315 12 F.3d at 1070 (emphasis supplied). Without a statement of the claims that Petitioner 13 seeks to pursue and exhaust in state court, the Court cannot determine if the claims are 14 valid, and thus, whether the stay would be appropriate. 15 III. Order to Show Cause 16 Accordingly, IT IS HEREBY ORDERED that Petitioner show cause why the 17 motion to stay should not be denied for failure to include the unexhausted claims that 18 Petitioner seeks to pursue in state court in the motion. A response to this Order shall 19 include a list of the claims Petitioner seeks to pursue -- or is already pursuing -- in state 20 court. A response to this Order, or a notice to withdraw the motion to stay is due within 21 thirty days of the issuance of this Order. Petitioner is forewarned that failure to follow this 22 Order may result in sanctions, including a recommendation that the motion to stay be 23 denied. Local Rule 110. 24 25 26 27 IT IS SO ORDERED. Dated: January 9, 2018 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 28 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?