Williams v. Paramo

Filing 20

ORDER signed by Magistrate Judge Kendall J. Newman on 02/05/14 denying 19 Motion for stay and abeyance. Petitioner's amended motion for stay under Rhines, if any, shall be filed within 30 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK J. WILLIAMS,

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Petitioner,

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No. 2:13-cv-0417 TLN KJN P

v.

ORDER

D. PARAMO,

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Respondent.

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On January 9, 2014, petitioner filed a document styled, “Motion to Hold Proceedings in

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Abeyance,” under Rhines v. Weber, 544 U.S. 269, 277 (2005). (ECF No. 19.) Petitioner

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contends that all of the claims1 contained in his federal petition are exhausted, but seeks to stay

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consideration of such claims so that he may exhaust twelve unidentified claims in state court.

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Petitioner states that “the claims he seeks to exhaust in state court are not dilatory litigation

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tactics, but stem from due process violations, and hold merit for examination by the courts.

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Petitioner was represented by counsel who failed to perform adequate representation as

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established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).” (ECF No.

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19 at 1.)

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Petitioner challenges his May 27, 2010 conviction, and raises two claims in his federal petition:
the trial court failed to sua sponte instruct on the lesser-included offense of simple assault, and
there was insufficient evidence to support the conviction of assault with a deadly weapon. (ECF
No. 5.)
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However, by order filed October 4, 2013, petitioner was informed of the requirements for

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filing a motion for a stay under Rhines, and advised that if he sought a stay under Rhines, he must

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address each condition set forth in Rhines. (ECF No. 17 at 2-3.)

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Under Rhines, a district court may stay a mixed petition if the following conditions are

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met: (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims

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are potentially meritorious,” and (3) “there is no indication that the petitioner engaged in

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intentionally dilatory litigation tactics.” Id., 544 U.S. at 278. The Supreme Court has made clear

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that this option “should be available only in limited circumstances.” Id. at 277. Moreover, a stay

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that is granted pursuant to Rhines may not be indefinite; reasonable time limits must be imposed

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on a petitioner‟s return to state court. Id. at 277-78.

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“Good cause” under Rhines is not clearly defined. The Supreme Court has explained that

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in order to promote the Anti-Terrorism and Effective Death Penalty Act‟s (“AEDPA”) twin goals

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of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay

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and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The

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

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

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Several district courts have concluded that the standard is more generous than the showing

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needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F. Supp. 2d

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844, 849 (D. S.D. 2005) (applying the Supreme Court's mandate on remand). This view finds

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support in Pace, where the Supreme Court acknowledged that a petitioner‟s “reasonable

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confusion” about the timeliness of his federal petition would generally constitute good cause for

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his failure to exhaust state remedies before filing his federal petition. Pace v. DiGuglielmo, 544

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U.S. 408, 416-17 (2005). However, in Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the

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Ninth Circuit ruled that petitioner did not show good cause by arguing that he was “under the

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impression” that his counsel had raised all claims before the state court of appeal. Id., at 1024.

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The Ninth Circuit explained that finding good cause in that argument “would render stay-and-

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abey orders routine” and “would run afoul of Rhines and its instruction that district courts should

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only stay mixed petitions in „limited circumstances.‟” Wooten, 540 F.3d at 1024.
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More recently, in Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012), the Supreme Court

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held that ineffective assistance of post-conviction counsel may constitute cause for overcoming

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procedural default. Id. Numerous courts have drawn an analogy between “good cause” for

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failure to exhaust and the showing required to overcome a procedural bar. See, e.g., Hernandez v.

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Sullivan, 397 F.Supp.2d 1205,1207 (C.D. Cal. 2005); Bader v. Warden, 2005 WL 1528761 at *7

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(D.N.H.2005) (unpublished memorandum). Under the procedural default doctrine, the “cause”

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standard requires a petitioner to show that some objective factor external to the defense impeded

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counsel's efforts to raise the claim in state court. Murray v. Carrier, 477 U.S. 478, 488 (1986).

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Other district courts have found the “good cause” requirement for a stay to be less

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stringent than that required in the procedural default context. See, e.g., Corjasso v. Ayers, 2006

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WL 618380 at *1 (E.D. Cal. 2006) (comparing good cause standard to that of excusable neglect);

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Hoyos v. Cullen, 2011 WL 11425 (S.D. Cal. Jan. 4, 2011) (same).

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Here, petitioner has inadequately addressed the conditions required under Rhines.

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First, the court cannot determine whether the proposed unexhausted claims have merit

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because petitioner failed to set forth the twelve claims he proposes to now exhaust. Petitioner

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alleges that the proposed claims are not barred by state law, and that state review of such claims

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would “make moot any further action by the federal courts.” (ECF No. 19 at 4.) However,

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petitioner fails to provide facts demonstrating that the proposed claims have merit; thus, petitioner

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fails to meet the second condition of Rhines.

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Second, although petitioner alleges that these unidentified claims “are not dilatory

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litigation tactics,” petitioner does not expressly articulate why he earlier failed to raise the claims

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in state court, and alleges no facts showing his diligence in exhausting such claims. Petitioner

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fails to describe the alleged “due process violations” that he argues do not constitute dilatory

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litigation tactics. Thus, petitioner does not meet the third Rhines condition.

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Finally, petitioner fails to demonstrate good cause. Petitioner claims he was represented

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by counsel who allegedly failed to perform adequate representation, and states counsel failed to

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address the twelve issues in state court before the state court heard the issues raised in the federal

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petition. However, although petitioner was represented by counsel on appeal, petitioner claims in
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his verified petition that he was not represented by counsel in post-conviction challenges. (ECF

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No. 5 at 10.) Thus, petitioner fails to establish how counsel‟s failure to raise these claims on

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appeal prevented petitioner from raising them in collateral challenges in state court.

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Petitioner also claims he is a layman at law and had no understanding of the law until

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informed by a fellow prisoner, but states the “ongoing conflict with both trial and appellate

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counsel is apparent in the record.” (ECF No. 19 at 4.) However, lack of legal knowledge does

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not constitute “good cause” because lack of legal knowledge is a routine characteristic and

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circumstance suffered by prisoners. Such argument is insufficient to show good cause as it would

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run contrary to Rhines‟ instruction that stays should be granted only in limited circumstances.

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See Wooten, 540 F.3d at 1024; Daly v. McEwen, 2011 WL 4964449, at *4 (C.D. Cal. Oct.19,

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2011) (holding that petitioner failed to show good cause to warrant a Rhines stay in arguing that

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he was ignorant of the law and required the assistance of more knowledgeable prisoners);

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Holloway v. Curry, 2010 WL 2985078, at *3-4 (E.D. Cal. July 27, 2010) (concluding that

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petitioner's argument that he is a layman and was unaware of the exhaustion requirement is

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insufficient to show good cause to warrant a Rhines stay), report and recommendation adopted

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by, 2010 WL 3703836 (Sept. 17, 2010); Hamilton v. Clark, 2010 WL 530111, at *2 (E.D. Cal.

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Feb. 9, 2010) (holding that petitioner's lack of understanding of the exhaustion requirement and

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limited access to the prison law library were insufficient to show good cause for a failure to

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exhaust). For all of these reasons, petitioner fails to demonstrate good cause under Rhines.

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Because petitioner has not made the showing required to obtain a stay under Rhines,

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petitioner‟s motion for stay and abeyance is denied without prejudice. In an abundance of

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caution, petitioner is granted thirty days in which to file an amended motion for stay under

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Rhines. Petitioner must identify the twelve claims he seeks to exhaust. Also, petitioner is

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cautioned that he must provide factual support to address each condition required under Rhines.

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However, inasmuch as petitioner has filed his reply to the answer, petitioner is not

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required to renew his motion for stay. If petitioner does not file an amended motion for stay, the

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petition for writ of habeas corpus will stand submitted once the thirty day period has expired.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner‟s motion for stay and abeyance (ECF No. 19) is denied without prejudice;

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and
2. Petitioner‟s amended motion for stay under Rhines, if any, shall be filed within thirty

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days from the date of this order.

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Dated: February 5, 2014

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/will0417.mts

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