Mosqueda v. Martel
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 06/14/11 recommending that petitioner's motion for a stay under Rhines, supra, filed on 03/18/11 3 be granted pending exhaustion of the ineffective assistance claim. Petitioner be directed to inform this court and file a request to lift the stay within 28 days of a decision by the California Supreme Court concluding state court habeas review. The clerk will administratively close this case for purposes of case status pending exhaustion. MOTION to STAY 3 referred to Judge Kimberly J. Mueller. Objections due within 20 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CARLOS MOSQUEDA,
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Petitioner,
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No. CIV S-11-0745 KJM GGH P
vs.
MICHAEL MARTEL,
Respondent.
FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma
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pauperis. Plaintiff seeks habeas relief on the grounds that the admission of hearsay evidence at
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his trial and the use of a juvenile adjudication to enhance his sentence, respectively, violate his
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due process rights. As a third ground, plaintiff asserts that he was denied his Sixth Amendment
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right to effective assistance of counsel.
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Petitioner has also filed a motion requesting a stay and abeyance pursuant to
Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528 (2005), so that he may exhaust his ineffective
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assistance claim in state court.1 (Doc. #3.) In Rhines, the United States Supreme Court found
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that a stay and abeyance of a mixed federal petition should be available only in the limited
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circumstance that good cause is shown for a failure to have first exhausted the claims in state
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court, that the claim or claims at issue potentially have merit and that there has been no
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indication that petitioner has been intentionally dilatory in pursuing the litigation. Rhines, supra,
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at 277-78, 125 S.Ct at 1535. A Rhines motion must clearly identify both the exhausted and
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unexhausted claims; and must show good cause for petitioner’s failure to have first exhausted the
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claims in state court, that the claims at issue potentially have merit and that there is no evidence
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he has been intentionally dilatory in pursuing the litigation.
Here, petitioner asserts that his “mixed” petition contains two exhausted due
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process claims and a third, ineffective assistance claim, that has not been exhausted in state court.
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(Doc. #3 at 4; see also Petition (“Ptn.”) at 3.) As to good cause for failure to exhaust this claim,
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petitioner avers that he is an “indigent Mexican National who has limited English linguistic
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skills” and attaches an Education Progress Report indicating that petitioner is academically
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functioning at a second- or third-grade level. (Doc. #3, Ex. A.) He “has minimal formal
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education and has absolutely no ability to comprehend matters of law.” (Id. at 4.) He cannot
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afford to hire an attorney; nor has he been able to secure free legal assistance from fellow
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inmates. (Id. at 4-5.) In November 2010, he was introduced to an inmate legal assistant who
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agreed to help him with his federal habeas petition. (Id. at 5.) For the next two months, she
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reviewed the record of petitioner’s case and determined that petitioner had an ineffective
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assistance claim which “bear[s] directly upon the weight of the merits presented in claims I and II
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of the writ petition [and] therefore must be allowed to be reviewed contemporaneously.” (Id. at
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The exhaustion of state court remedies is a prerequisite to the granting of a
petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion
requirement by providing the highest state court with a full and fair opportunity to consider all claims
before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 512
(1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
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5.) Petitioner filed both the instant federal petition and a Rhines motion on March 18, 2011.
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On May 20, 2011, pursuant to court order dated May 9, 2011, respondent filed a
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response to petitioner’s motion to stay, in which he stated that he did not oppose the motion.
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Rhines does not go into detail as to what constitutes good cause for failure to
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exhaust, and the Ninth Circuit has provided no clear guidance beyond holding that the test is less
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stringent than an “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62
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(9th Cir. 2005). Several district courts have concluded that the standard is more generous than
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the showing needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408
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F.Supp.2d 844, 849 (D.S.D. 2005) (applying the Supreme Court's mandate on remand). This
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view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807 (2005), where the
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Supreme Court acknowledged that a petitioner's “reasonable confusion” about the timeliness of
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his federal petition would generally constitute good cause for his failure to exhaust state remedies
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before filing his federal petition. 544 U.S. at 416-17, 125 S.Ct. 1807.
This court finds, in this instance and based on the circumstances described, that
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petitioner has shown sufficient cause to meet the “good cause” standard under Rhines. The court
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also finds that the claim at issue potentially has merit and there is no evidence petitioner has been
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intentionally dilatory in pursuing the litigation.
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Accordingly, IT IS RECOMMENDED that:
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1. Petitioner’s motion for a stay under Rhines, supra, filed on March 18, 2011
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(Doc. #3) be granted, pending exhaustion of the ineffective assistance claim;
2. Petitioner be directed to inform this court and file a request to lift the stay
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within twenty-eight days of a decision by the California Supreme Court concluding state court
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habeas review. Failure to timely inform the court will result in dismissal of the federal claim;
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and
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////
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3. The Clerk shall administratively close this case for purposes of case status
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pending exhaustion.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty
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days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections
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shall be served and filed within ten days after service of the objections. The parties are advised
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that failure to file objections within the specified time may waive the right to appeal the District
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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: June 14, 2011
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/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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