Franco v. Espinoza

Filing 6

ORDER GRANTING Petitioner's 2 Motion to Stay and Abeyance;Petitioner is DIRECTED to file a status report within thirty (30) days of the date of this Order advising the Court of the status of the state court proceedings, signed by Magistrate Judge Sheila K. Oberto on 1/24/18.Case Management Deadline: 30-Day Deadline (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

MARIA ANTONIA FRANCO,

12
13
14
15

No. 1:18-cv-00057-SKO HC

Petitioner,
ORDER GRANTING PETITIONER’S
MOTION FOR STAY AND ABEYANCE

v.
JANEL ESPINOZA, Warden,

(Doc. 2)
Respondent.

16
17
18
19

Petitioner, Maria Antonia Franco, is a state prisoner seeking to proceed with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. On November 3, 2017, Petitioner filed her
petition with the Sacramento Division of the United States District Court for the Eastern District

20
21
22
23

of California. (Doc. 1.) On January 12, 2018, United States Magistrate Judge Craig M. Kellison
transferred the case to this Court, because Petitioner is challenging her conviction issued by the
Fresno County Superior Court. (Doc. 4.)

24

In her habeas petition, Petitioner sets forth two fully exhausted claims, and moves for an

25

order of stay and abeyance pending resolution of the unexhausted claim for ineffective assistance

26

of counsel in the California state courts.

27
28
1

1

I.

2
3

Procedural Background
On May 23, 2013, following a jury trial in Fresno County Superior Court, Petitioner was

convicted of (1) attempted murder (Cal. Penal Code §§ 187(a), 664), (2) second degree robbery

4
(Cal. Penal Code § 211), and (3) possession of a firearm by a felon (Cal. Penal Code §
5
6

29800(a)(1)). In connection with the first two counts, Petitioner was alleged to have personally

7

and intentionally discharged a firearm and proximately caused great bodily injury (Cal. Penal

8

Code § 12022.53(d)).

9

Petitioner was sentenced to nine years plus 25 years to life for proximately causing great

10

bodily injury with a firearm in connection with the second degree robbery charge, plus a

11

concurrent three year term for being a felon in possession of a firearm. The trial court also

12
13
14

imposed a sentence of five years plus 25 years to life for proximately causing great bodily injury
with a firearm for attempted murder, but stayed execution of this sentence.1

15

Petitioner filed a direct appeal. On June 2, 2016, the California Court of Appeal for the

16

Fifth Appellate District affirmed the conviction. The California Supreme Court denied the

17

petition for review on August 10, 2016. Petitioner filed a federal petition for writ of habeas

18
19

corpus on November 3, 2017, and requested an order of stay and abeyance to permit him to
pursue his sole unexhausted claim through the California state courts.

20
II.

21

Standards for Granting Order of Stay and Abeyance

22

A federal district court may not address a petition for writ of habeas corpus unless the

23

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

24

U.S. 509, 515 (1982). A petition is fully exhausted when the highest state court has had a full and

25

fair opportunity to consider all claims before the petitioner presents them to the federal court.

26

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

27
28

1

The record does not indicate why the sentence for the attempted murder charge was stayed.

2

1

'mixed' petitions run the risk of forever losing their opportunity for federal review of the

2

unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275 (2005).

3

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

4
277. A district court may stay a mixed petition if (1) the petitioner demonstrates good cause for
5
6
7

failing to have first exhausted all claims in state court; (2) the claims potentially have merit; and
(3) petitioner has not been dilatory in pursuing the litigation. Id. at 277-78.

8

In the alternative, a court may stay a mixed petition if (1) the petitioner amends his

9

petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended,

10

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

11

court; and (3) petitioner later amends her petition and reattaches the newly exhausted claims to

12
13
14

the original petition.

Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003). The Kelly

procedure is riskier than the Rhines procedure since it does not protect the petitioner's

15

unexhausted claims from expiring during the stay. King v. Ryan, 564 F.3d 1133, 1135 (9th Cir.

16

2009).

17
18
19

Despite the risk of the unexhausted claims becoming time-barred in the course of the
Kelly procedure, a petitioner may elect to use that alternative since it does not require her to
demonstrate good cause as does the Rhines procedure. King, 564 F.3d at 1140. Since Petitioner

20
21
22

specifically asks the Court to analyze the stay pursuant to Rhines, the Court will analyze
Petitioner's motion using the Rhines alternative.

23

Rhines does not define what constitutes good cause for failure to exhaust, and the Ninth

24

Circuit has provided no clear guidance beyond holding that the test is less stringent than an

25

"extraordinary circumstances" standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). If

26

the claims are not "plainly meritless," and if the delays are not intentional or attributable to

27
abusive tactics, however, the Rhines court opined that a district court would abuse its discretion in
28
3

1
2

denying a stay. 544 U.S. at 278.
III.

3

Petitioner Has Properly Articulated a Claim for a Stay and Abeyance
Petitioner sets forth one unexhausted ground for relief: ineffective assistance of counsel

4
for failure to investigate and produce into evidence a medical report.
5
From the limited record, the Court cannot say that the ineffective assistance of counsel

6
7

claim is “plainly meritless.” See Id. Further, nothing in the record suggests that Petitioner has

8

intentionally or maliciously failed to pursue her potentially meritorious claim.

9

Accordingly, the Court finds good cause for the unexhausted claim and will grant a stay and

10
11

See Id.

abeyance under Rhines.
IV.

Conclusion and Order

12
13
14

The Court hereby ORDERS as follows:
1.

The Court GRANTS Petitioner's motion for stay and abeyance to permit

15

exhaustion of the twelve stated unexhausted claims pursuant to Rhines v. Weber, 544 U.S. 269,

16

275 (1995).

17
18
19

2.

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

this Order advising the Court of the status of the state court proceedings.
3.

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

4.

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

20
21
22

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

23

habeas petition setting forth all exhausted claims. The Court shall then screen the petition

24

pursuant to the Rules Governing Section 2254 Cases.

25
26

5.

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

pro tunc to the date of this Order, and dismiss the petition without prejudice for failure to exhaust

27
all claims but with leave to file an amended petition. See Anthony v. Cambra, 236 F.3d 568, 574
28
4

1

(9th Cir. 2000). Such dismissal may render the petition untimely in light of the one-year statute

2

of limitations under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

3
4
IT IS SO ORDERED.
5
6

Dated:

January 24, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5

.