Harmless v. Lizzaraga

Filing 9

ORDER signed by Magistrate Judge Dale A. Drozd on 6/12/2014 GRANTING petitioner's 7 motion to proceed IFP; GRANTING petitioner's 5 motion to "stay and abey" this action pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003); this action is STAYED pending exhaustion of state court remedies on petitioner's unexhausted claims; petitioner is DIRECTED to file in this court, every 90 days commencing with the filing date of this order, a status report that details petitioner's progress in exhausting his unexhausted claims in the state courts; petitioner shall also file in this court, within 30 days after the CA Supreme Court issuses a final order resolving petitioner's unexhausted claims, a motion r equesting that the instant stay be lifted, and that leave be granted to file a Second Amended Petition and petitioner shall include his proposed Second Amended Petition; and the Clerk shall administratively close this case until further order or this court. CASE STAYED. CASE CLOSED. (Yin, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

HOWARD MARTIN HARMLESS,

12

Petitioner,

13
14

No. 2:14-cv-0223 DAD P

v.

ORDER

J. LAZZARAGA, Warden,

15

Respondent.

16
Petitioner is a state prisoner proceeding pro se with an amended petition for writ of habeas

17
18

corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to magistrate judge jurisdiction in

19

this action all purposes, pursuant to 28 U.S.C. § 636(c), and Local Rule 305(a). (See ECF No. 4.)

20

Pending before the court are petitioner’s motions to proceed in forma pauperis and for a stay and

21

abeyance of these proceedings pending exhaustion of his unexhausted claims in state court. For

22

the reasons that follow, the court grants petitioner’s motions.

23

I. Background
On January 23, 2014, petitioner filed his original federal petition for writ of habeas

24
25

corpus, challenging his 2010 judgment of conviction, entered in the El Dorado County Superior

26

Court, for furnishing marijuana to minors and lewd acts on a child, with sentencing enhancements

27

based on prior convictions for child molestation. (ECF No. 1.)

28

/////
1

1

On January 28, 2014, this court directed petitioner to file an amended petition for writ of

2

habeas corpus that included his signature, as required by Rule 2 of the Rules Governing Section

3

2254 Cases, and accorded petitioner the opportunity to submit an application to proceed in forma

4

pauperis or the appropriate filing fee.

5

On February 10, 2014, petitioner filed a motion to proceed in forma pauperis (ECF No. 7),

6

the operative amended petition for writ of habeas corpus (ECF No. 6), and a motion to “stay and

7

abey” his amended petition (ECF No. 5).

8

II. Application to Proceed In Forma Pauperis

9

Examination of the in forma pauperis application demonstrates that petitioner is unable to

10

afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

11

granted. See 28 U.S.C. § 1915(a).

12

III. Amended Petition for Writ of Habeas Corpus1

13

The amended federal habeas petition before the court contains only one claim, described

14

by petitioner as follows: “The trial court abused its discretion and prejudiced defendant’s defense

15

by admitting evidence of prior sex offenses as evidence for propensity evidence under Evidence

16

Code § 1108.” (ECF No. 6 at 3.) Petitioner alleges that this claim was fully exhausted in state

17

court on direct review. See 28 U.S.C. § 2254(b)(1)(A) (exhaustion of state court remedies is a

18

prerequisite to seeking federal habeas relief). Petitioner also states that he did not pursue

19

collateral review on any of the claims set forth in his amended federal petition by way of state

20

habeas petitions.2

21
22
23

It would appear that petitioner timely commenced this federal habeas action within the
one-year statute of limitations established by the Antiterrorism and Effective Death Penalty Act
1

24

The amended petition for writ of habeas corpus is identical to the original petition, except that
the amended petition includes petitioner’s signature.

25

2

26
27
28

AEDPA’s limitation period is statutorily tolled during the pendency of “a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim . . . .” 28 U.S.C. § 2244(d)(2). In addition, the limitation period may be
equitably tolled if a petitioner can establish that he diligently pursued his rights but some
extraordinary circumstance stood in his way. Raspberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir.
2006).
2

1

of 1996 (AEDPA). See 28 U.S.C. § 2244(d). Specifically, this action was filed on January 23,

2

2014, within the one-year period after petitioner’s judgment of conviction and sentence became

3

final on April 23, 2013.3 See 28 U.S.C. § 2244(d)(1)(A) (one-year limitations period commences

4

with “the date on which the judgment became final by the conclusion of direct review or the

5

expiration of the time for seeking such review”).

6

IV. Motion to Stay and Abey

7

A. Petitioner’s Motion

8

As noted, petitioner has filed a motion seeking to have his fully exhausted federal

9

amended habeas petition stayed and these proceedings held in abeyance while he exhausts

10

“approximately” four additional claims in state court. Citing the decision in Kelly v. Small, 315

11

F.3d 1063 (9th Cir. 2003), petitioner states that his goal is to further amend his federal petition to

12

include these additional claims once they are exhausted in state court. However, petitioner also

13

reports that he has not yet obtained his case file from his state appellate counsel, and may need to

14

“seek judicial intervention from the lower courts to compel counsel to send me my trial record.”

15

(ECF No. 5 at 8.) In addition, petitioner states that, once he obtains his case file, there “maybe

16

(sic) more issues” for him to exhaust. (Id. at 3.)

17

Before this court petitioner identifies only two of the four putative claims, a challenge to

18

the restitution imposed as part of his sentence and a claim challenging the sufficiency of the

19

evidence introduced at his trial, which he intends to exhaust. Petitioner asserts that both of these

20

claims were addressed and rejected by the California Court of Appeal, but that neither was

21

presented in the petition for review submitted to the California Supreme Court on his behalf.

22
23
24
25
26
27
28

3

The California Court of Appeal affirmed petitioner’s judgment of conviction and sentence on
November 16, 2012. See People v. Harmless, Case No. C066882, 2012 WL 5704937 (Cal. App.
3d Dist. Nov. 16, 2012). Petitioner petitioned the California Supreme Court for review on
December 19, 2012, and that petitioner was denied on January 23, 2013. See People v. Harmless,
Case No. S207430 (California Supreme Court Docket). Because petitioner did not file a petition
for writ of certiorari in the United States Supreme Court, the judgment became final upon
expiration of the ninety-day period for seeking a writ of certiorari. See Supreme Court Rule 13;
Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999). Therefore, petitioner’s judgment of
conviction and sentence became final on April 23, 2013, ninety days after the California Supreme
Court denied review on January 23, 2013.
3

1

Review of the California Court of Appeal decision4 supports petitioner’s representation that these

2

claims were considered and rejected by that court, due in part (as petitioner asserts) to the alleged

3

failure of his appellate counsel to cite authority in support of them. See People v. Harmless, Case

4

No. C066882, 2012 WL 5704937 (Cal. App. 3d Dist. Nov. 16, 2012). Thus, for example,

5

petitioner’s restitution claim, in which he challenged the trial court’s restitution award to “Doe”

6

for noneconomic damages, was rejected by the state appellate court in part because “defendant

7

cites no authority in support of his argument.” Id. at *5. Similarly, petitioner’s sufficiency of

8

evidence claim was rejected by the state appellate court in part because “defendant . . . provides

9

no citations to authority or argument.” Id. at *4.

10

B. Stay and Abeyance Procedures

11

There are two procedures available to federal habeas petitioners who wish to proceed with

12

both exhausted and unexhausted claims. See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009).

13

Petitioner requests application of the “Kelly procedure,” Kelly v. Small, 315 F.3d 1063 (9th Cir.

14

2003).5 The Ninth Circuit Court of Appeals has described the “Kelly procedure” as a three-step

15

process:

16

(1) a petitioner amends his petition to delete any unexhausted
claims; (2) the court stays and holds in abeyance the amended, fully
exhausted petition, allowing the petitioner the opportunity to
proceed to state court to exhaust the deleted claims; and (3) the
petitioner later amends his petition and re-attaches the newlyexhausted claims to the original petition.

17
18
19
20
21
22

4

This court may take judicial notice of its own records and the records of other courts. See
United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004); United States v. Wilson, 631
F.2d 118, 119 (9th Cir. 1980); see also Fed. R. Evid. 201 (court may take judicial notice of facts
that are capable of accurate determination by sources whose accuracy cannot reasonably be
questioned).

23
5

24
25
26
27
28

The alternate procedure was set forth by the Supreme Court in Rhines v. Weber, 544 U.S. 269,
277 (2005). Under the Rhines procedure, a district court may stay a petitioner’s “mixed petition”
(containing both exhausted and unexhausted claims), while petitioner returns to state court to
exhaust his unexhausted claims. Id. at 277-78; see also King, 564 F.3d at 1140. A stay under
Rhines is appropriate only when petitioner has demonstrated good cause for failing to previously
exhaust his claims in state court, and is not available if the unexhausted claims are “plainly
meritless,” or petitioner has engaged in “abusive litigation tactics or intentional delay.” Rhines,
544 U.S. at 277-78. “[B]oth Kelly and Rhines are directed at solving the same problem -namely, the interplay between AEDPA’s one-year statute of limitations and the total exhaustion
requirement first articulated in Rose v. Lundy, 455 U.S. 509 (1982).” King, 564 F.3d at 1136.
4

1

King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). The instant petition, asserting only

2

an exhausted claim, satisfies the first step under Kelly.
Significantly, “the Kelly procedure . . . is not premised upon a showing of good cause.”

3
4

King, 564 F.3d at 1140. However, “[a] petitioner seeking to use the Kelly procedure will be able

5

to amend his unexhausted claims back into his federal petition once he has exhausted them only if

6

those claims are determined to be timely” under AEDPA’s statute of limitations.6 Id. at 1140-41.

7

Thus, the Kelly procedure, in contrast to the Rhines procedure (see n.5, above), does not protect a

8

petitioner’s unexhausted claims from expiring during a stay and becoming time-barred in federal

9

court. King, 564 F.3d at 1140-41; see also Duncan v. Walker, 533 U.S. 167, 172-75 (2001)

10

(unlike the filing of a state habeas petition, the filing of a federal habeas petition does not toll

11

AEDPA’s statute of limitations). “[T]he Kelly procedure, unlike the Rhines procedure, does

12

nothing to protect a petitioner’s unexhausted claims from untimeliness in the interim.” King, 564

13

F.3d at 1141.

14

If a newly exhausted claim is time-barred, it may be added in an amended petition only if

15

it “relates back” to petitioner’s original exhausted claims. However, a new claim does not “relate

16

back” to the original petition simply because it arises from “the same trial, conviction, or

17

sentence.” Mayle v. Felix, 545 U.S. 644, 662-64 (2005). Rather, the new claim must be of the

18

same “time and type” as the original exhausted claims, and share a “common core of operative

19

facts” with those claims. Id. at 659.

20

C. Discussion

21

The only claim alleged in the amended federal petition was exhausted in the state courts,

22

thus satisfying the first step of the Kelly procedure. As previously noted, a finding of good cause

23

is not required for the court to proceed to the second step, by granting petitioner’s motion to stay

24

/////

25

6

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 state-action 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).
5

1

this action and hold his amended petition in abeyance while petitioner exhausts his remaining

2

claims in the state courts.
However, petitioner is cautioned that “technical exhaustion” in the state courts does not

3
4

guarantee federal review at the third step of the Kelly procedure. See Mayle, 545 U.S. at 659

5

(newly exhausted claim that is untimely under AEDPA may be added only if it “relates back” to

6

the original exhausted claims); Duncan, 533 U.S. at 172-75 (AEDPA’s statute of limitations is not

7

tolled by the filing of federal habeas petition); King, 564 F.3d at 1140-41 (a newly exhausted

8

claim may be added to a stayed federal petition if timely under ADEPA); see also Murray v.

9

Schriro, 745 F.3d 984, 1015 (9th Cir. 2014) (a federal court is without jurisdiction to consider

10

federal claims found by state courts to be procedurally barred).7
Therefore, while the court will grant petitioner’s motion to “stay and abey” this action, it

11
12

does not at that time reach the question of whether any of the new claims petitioner intends to

13

exhaust may later be presented in this federal habeas action by way of amendment. The court

14

will address that question when, and if, petitioner seeks leave to present his newly exhausted

15

claims to this court in a further amended federal petition pursuant to the third step of the

16

procedure authorized by the Ninth Circuit in Kelly.
For these reasons, the court will grant petitioner’s motion to “stay and abey” this federal

17
18

habeas action pending petitioner’s exhaustion of state court remedies on his unexhausted claims.

19

/////

20
21
22
23
24
25
26
27
28

7

As a general rule, any claim found by the state courts to be procedurally defaulted will not be
considered in this court:
The doctrine of procedural default provides that “a federal court
will not review the merits of claims, including constitutional
claims, which a state court declined to hear because the prisoner
failed to abide by a state procedural rule.” Martinez v. Ryan,
__U.S.__, __, 132 S. Ct. 1309, 1316 (2012). This doctrine is
grounded in federalism, because federal courts “will not review a
question of federal law decided by a state court if the decision of
that court rests on a state law ground that is independent of the
federal question and adequate to support the judgment.” Coleman v.
Thompson, 501 U.S. 722, 726-29 (1991).
Murray, 745 F.3d at 1015.
6

1

V. Conclusion

2

For the foregoing reasons IT IS HEREBY ORDERED that:

3

1. Petitioner’s motion to proceed in forma pauperis (ECF No. 7), is granted.

4

2. Petitioner’s motion to “stay and abey” this action (ECF No. 5), pursuant to Kelly v.

5
6
7
8
9
10
11

Small, 315 F.3d 1063 (9th Cir. 2003), is granted.
3. This action is stayed pending exhaustion of state court remedies on petitioner’s
unexhausted claims.
4. Petitioner is directed to file in this court, every ninety (90) days commencing with the
filing date of this order, a status report that details petitioner’s progress in exhausting his
unexhausted claims in the state courts.
5. Petitioner is directed to file in this court, within thirty (30) days after the California

12

Supreme Court issues a final order resolving petitioner’s unexhausted claims, a motion

13

requesting that the instant stay be lifted, and that leave be granted to file a Second Amended

14

Petition for Writ Of Habeas Corpus pursuant to 28 U.S.C. § 2254; petitioner shall include his

15

proposed Second Amended Petition.

16

6. The Clerk of Court is directed to administratively close this case until further order of

17

this court.

18

Dated: June 12, 2014

19
20
21

DAD:4
harm0223.mtn.stay.hc.amd.

22
23
24
25
26
27
28
7