Lisea v. Sherman

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/8/14 DENYING 6 Motion to Stay. Not more than 30 days from the date of this order, petitioner may file an amended petition in this action containing only exhausted claims. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDUARDO LISEA,

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No. 2:14-cv-1766 CKD P

Petitioner,

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v.

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STU SHERMAN,

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ORDER

Respondent.

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I. Introduction
Petitioner is a state prisoner proceeding with counsel with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2011 conviction for attempted

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murder and related charges. (ECF No. 1 (“Ptn.”).) Petitioner was the driver of a car from which

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a shooter shot a victim in a gang-related incident. (ECF No. 6-2.) He “was convicted as an aider-

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and-abettor under California’s natural-and-probable consequences doctrine.” (Ptn. at 1.)

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By order issued July 30, 2014, the undersigned determined that the petition was “mixed,”

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containing both exhausted and unexhausted claims. (ECF No. 5.) Before the court is petitioner’s

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motion to stay this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 6.)

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II. Claims

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Petitioner’s unexhausted claims are all pending in state habeas proceedings in the San
Joaquin County Superior Court. (ECF Nos. 6-1, 6-2.) They are as follows:
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Claim 8: Petitioner was denied due process of law under the Fifth
and Fourteenth Amendment to the Constitution by the unexpected
construction and retroactive application of a California Penal statute
that increased the punishment for his alleged acts, criminal liability
for which was vicarious. (Ptn. at 14.)

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Petitioner asserts that, in affirming his criminal conviction, the state court of appeal

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applied a “new rule . . . retroactively” to petitioner, violating his due process rights under the

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Constitution’s ex post facto clause.1 Petitioner asserts that this claim “was not presented to the

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California Supreme Court on direct review of Petitioner’s conviction because it did not accrue

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until the decision affirming the judgment of conviction.” (Id. at 14-15.)

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Claim 9: Petitioner was denied due process of law under [the]
Fourteenth Amendment to the Constitution by his attempted murder
conviction absent proof beyond a reasonable doubt of the specific
intent to kill Christopher Smith. (Ptn. at 15.)

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Petitioner asserts that “[a] sufficiency of the evidence claim was presented to the

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California Supreme Court on direct review (Ground/Claim THREE), but not on the basis of

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failure of proof as to the specific intent to kill. This fact-specific Ground/Claim is raised in state

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collateral proceedings now pending in San Joaquin County Superior Court.” (Id. at 15-16.)

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Petitioner asserts that his appellate counsel was ineffective in failing to raise this claim on appeal.

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(Id. at 16-17 (Claim 11).)

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Claim 10: Petitioner was denied his Fifth, Sixth, and Fourteenth
Amendment rights to due process and a jury trial by the failure of
the trial court to give sua sponte CALCRIM 603. (Ptn. at 16.)

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Petitioner asserts that “this Ground/Claim was presented to the California Supreme Court

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on direct review (Ground/Claim FIVE), but not on the basis of failure of the prosecutor’s

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evidentiary concessions combined with the proof that [a rival gang member involved in the

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shooting] was armed. This fact-specific Ground/Claim is raised in state collateral proceedings

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now pending in San Joaquin County Superior Court.” (Id.) Petitioner asserts that his appellate

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counsel was ineffective in failing to raise this claim on appeal. (Id. at 16-17 (Claim 11).)

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Under some circumstances, a judicial decision that has an ex post facto effect can give rise to a
“valid due process claim.” U.S. v. Marcus, 560 U.S. 258, 264 (2010).

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Claim 11: Any alleged procedural default of petitioner’s claims is
the result of ineffective assistance of appellate counsel.

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Petitioner argues that his appellate counsel made several errors on appeal, including

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failing to raise the issues presented in Claims 9 and 10. (Id. at 16-17.) He asserts that Claim 11

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did not accrue until after his appeal was complete. (Id. at 17)

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Claim 12: The cumulative effect of the multiple constitutional
errors asserted here deprived petitioner of a fair trial, due process of
law, under the Fifth, Sixth, and Fourteenth Amendments. (Ptn. at
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Petitioner asserts that, to the extent this claim was not presented to the California Supreme

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Court on direct review, “the failings of appellate counsel are to blame.” (Id. at 18.)

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III. Discussion
To obtain a Rhines stay of a mixed petition pending exhaustion of the unexhausted claims,

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the petitioner must show that (1) the unexhausted claims are potentially meritorious; and (2)

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petitioner had good cause for his earlier failure to exhaust state remedies. 2 544 U.S. at 278.
The undersigned has reviewed petitioner’s state petition for habeas relief, which addresses

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the merits of his unexhausted Claims 8-12. (ECF Nos. 6-1, 6-2.) Under Rhines, a district court

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abuses its discretion in granting a stay when petitioner’s unexhausted claims are “plainly

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meritless.” 544 U.S. at 277; see also Cassett v. Stewart, 406 F.3d 614, 623-624 (9th Cir. 2005)

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(“We now join our sister circuits in adopting the Granberry3 standard and hold that a federal court

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may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant

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does not raise even a colorable federal claim.”). Here the court finds that petitioner’s

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unexhausted claims have sufficient potential merit to go forward.

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As to good cause, petitioner states that “the unexhausted claims in the mixed petition filed

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in this case were presented for the first round of state postconviction (collateral) review on July 7,

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2014[.]” (ECF No. 6 at 5.) While arguing that the claims are timely under AEDPA (a point not

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There is no indication that petitioner engaged in “intentionally dilatory litigation tactics,” the
third Rhines factor. 544 U.S. at 278.
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Granberry v. Greer, 481 U.S. 129, 135 (1987).
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at issue here), petitioner’s motion does not squarely address the “good cause” prong of the Rhines

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standard. However, in presenting his claims in the petition, he has offered reasons why each one

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was not previously presented on direct review, as set forth above.

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Rhines does not go into detail as to what constitutes good cause for failure to exhaust.

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The Supreme Court has noted in dicta that “[a] petitioner’s reasonable confusion about whether a

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state filing would be timely will ordinarily constitute ‘good cause’” to excuse his failure to

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exhaust, Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), and the Ninth Circuit has held that a

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showing of good cause does not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d

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654, 661-62 (9th Cir. 2005). Recently, the Ninth Circuit noted that “[a]n assertion of good cause

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without evidentiary support will not typically amount to a reasonable excuse justifying a

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petitioner’s failure to exhaust.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014), pet. for cert.

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filed (June 10, 2014) (No. 13-1488). However, “a reasonable excuse, supported by evidence to

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justify a petitioner’s failure to exhaust, will.” Id.

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In Blake, the Ninth Circuit held that ineffective assistance of counsel by post-conviction

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counsel can be good cause for a Rhines stay. Id. at 983. Moreover, “good cause under Rhines,

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when based on IAC, cannot be any more demanding than a showing of cause under Martinez [v.

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Ryan, --- U.S. ----, 132 S. Ct. 1309 (2012)] to excuse state procedural default.” Id. at 983-84. In

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Martinez, the Supreme Court held that “a prisoner may establish cause for a default of an

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ineffective assistance claim” where his post-conviction counsel “was ineffective under the

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standards of Strickland v. Washington, 466 U.S. 668 (1984)[.]” See also Coleman v. Thompson,

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501 U.S. 722, 755 (1991) (“We reiterate that counsel’s ineffectiveness will constitute cause only

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if it is an independent constitutional violation.”).

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The Blake court concluded that petitioner satisfied the good cause standard where he

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argued that his post-conviction counsel “failed to conduct any independent investigation or retain

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experts in order to discover the facts underlying his trial-counsel IAC claim; namely, evidence

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that Blake was” subjected to severe abuse as a child and suffered from brain damage and

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psychological disorders. 745 F.3d at 982 (internal quotation marks omitted). The petitioner

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supported this argument with extensive evidence, including psychological evaluation reports, a
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declaration by the private investigator who worked briefly for his post-conviction attorney, and

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thirteen declarations from petitioner’s family and friends describing his “abhorrent” childhood

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conditions. Id. at 982-83. The Blake court concluded that petitioner had met the

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Coleman/Martinez standard for good cause, “leav[ing] for another day whether some lesser

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showing will suffice to show good cause under Rhines.” Id. at 983-84 & n.7.

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Here, petitioner supplies no evidence in support of his contention that his appellate

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counsel was ineffective for failing to raise unexhausted Claims 9, 10, and (to some extent) 12.

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From the petition alone, it is impossible to determine whether his attorney was ineffective under

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the Strickland standard, as he contends in Claim 11.

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More fundamentally, petitioner is currently in the process of exhausting his unexhausted

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claims in state post-conviction proceedings. As he acknowledges in his motion, the AEDPA

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statute of limitations is tolled during the time a properly filed application for post-conviction

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relief is pending in state court. 28 U.S.C. § 2244(d)(2). Once state collateral proceedings are

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commenced, a state habeas petition is “pending” during a full round of review in the state courts,

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including the time between a lower court decision and the filing of a new petition in a higher

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court, as long as the intervals between petitions are “reasonable.” See Evans v. Chavis, 546 U.S.

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189, 192 (2006); Carey v. Saffold, 536 U.S. 214, 222-24 (2002).

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Petitioner asserts that he filed the instant petition while state habeas proceedings are

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pending “in an abundance of caution” to ensure that his federal claims are timely. (ECF No. 6 at

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5.) However, petitioner is represented by counsel and need only diligently pursue state habeas

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review of his unexhausted claims in order to be subject to the tolling provisions set forth above.

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On the record before the court, petitioner has not shown “good cause” under Rhines and

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thus will be directed to file an amended petition containing only exhausted claims. Failing that,

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the petition will be dismissed as “mixed” without prejudice to refiling once all of petitioner’s

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claims are exhausted. See 745 F.3d at 980 (mixed petition must be dismissed, “leaving the

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prisoner with the choice of returning to state court to exhaust his claims or of amending or

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resubmitting the habeas petition to present only exhausted claims to the district court.”), citing

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Rose v. Lundy, 455 U.S. 509 (1982).
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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to stay (ECF No. 6) is denied;

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2. Not more than thirty days from the date of this order, petitioner may file an amended

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petition in this action containing only exhausted claims; and
3. Petitioner’s failure to timely file an amended petition will result in a recommendation

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that the petition be dismissed without prejudice to re-filing if and when state remedies are

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exhausted as to all claims therein.

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Dated: September 8, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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