Villa v. Frauenheim

Filing 34

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 03/28/17 recommending that petitioner's motion to continue to hold this federal habeas petition in abeyance while he exhausts his newly-discovered habeas claims in state c ourt be granted. This action continues to be stayed and administratively closed by the Clerk of the Court. Direct petitioner to file and serve a status report in this case on the first court day of each month. Order petitioner to file a motion to lift the stay within 30 days after petitioner is served with the California Supreme Court's order disposing of his latest state exhaustion petition. Motion 32 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GERALDO VILLA, SR.,

12

Petitioner,

13
14

No. 2:14-cv-01849 TLN DB

v.

FINDINGS AND RECOMMENDATIONS

SCOTT FRAUENHEIM,

15

Respondent.

16
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

17
18

pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Pending before the court is petitioner’s motion to

19

hold this action in abeyance pending exhaustion of potentially dispositive issues in state court.

20

(ECF No. 32.)

21

I.

22

Background
On August 5, 2014, petitioner Geraldo Villa, Sr., through his then-counsel Cliff Gardner,

23

filed a Petition for Writ of Habeas Corpus in this Court challenging his 2010 California State

24

judgment for premeditated and deliberated first degree murder of his adult son, Alex Villa. (ECF

25

No. 1.) Petitioner also filed a request to hold the petition in abeyance while he exhausted state

26

remedies as to additional claims. (ECF No. 2.) At the time, petitioner had an already-pending

27

Petition for Writ of Habeas Corpus in the Sacramento County Superior Court for the State of

28

California.
1

1

On November 18, 2014, the district court adopted the findings and recommendations

2

(ECF No. 4) of then-Magistrate Judge Dale A. Drozd and granted petitioner’s motion for a stay

3

and abeyance. (ECF No. 5.) The court ordered petitioner to file a motion to lift the stay of this

4

action within 30 days after petitioner is served with the California Supreme Court’s order

5

disposing of his state exhaustion petition.

6

On October 9, 2015, the court granted Mr. Gardner’s motion to withdraw as petitioner’s

7

counsel of record and appointed the Federal Public Defender to represent petitioner in this case.

8

(ECF No. 20.) On June 30, 2016, the court granted petitioner’s motion to substitute his attorney

9

and appointed Joanne Kirchner. (ECF No. 24.) On February 10, 2017, petitioner filed a motion

10

to continue to hold the petition in abeyance pending exhaustion of potentially dispositive issues in

11

state court. (ECF No. 32.)

12

Specifically, after her appointment in this case, Ms. Kirchner states that she discovered

13

potential federal and state habeas claims. (Id. at 2.) The state claim was based on a change in the

14

state law’s definition of false evidence. These state and federal claims had not been investigated

15

or exhausted in state court. In August of 2016, counsel began a preliminary investigation into the

16

claims. On September 7, 2016, counsel submitted an ex parte request for Advance Authorization

17

for Investigative (expert) Services to this Court. On September 28, 2016, the request was

18

approved. The details of the investigation are included in Ms. Kirchner’s declaration, attached to

19

the motion. (See ECF No. 32-1.)

20

On January 7, 2017, Ms. Kirchner received a report from a prosecution expert witness, Dr.

21

Stephany Fiore, repudiating a key part of her trial testimony. In this report, Dr. Fiore, who was

22

the pathologist who conducted Alex’s autopsy, purportedly admitted that she made a mistake

23

when she testified at petitioner’s trial that the knife used to stab the victim created two different

24

wound tracks. After reevaluating the case, she reportedly concluded that knife only created one

25

wound track and that the second wound track was created by a surgeon who operated on the

26

victim after the stabbing. This new report provided the basis for the new state and federal habeas

27

claims based on the presentation of evidence at petitioner’s trial that is now purported to be false.

28

////
2

1

At the time Dr. Fiore issued her revised report, petitioner had a state habeas petition

2

pending in the California Supreme Court. On January 11, 2017, four days after counsel received

3

Dr. Fiore’s revised report, the California Supreme Court denied petitioner’s pending habeas

4

petition before he had an opportunity to amend the petition to present the newly discovered,

5

unexhausted habeas claims. Counsel has prepared a second habeas for petitioner to file in propria

6

persona in the Sacramento County Superior Court, which is attached to the motion. (See ECF

7

No. 32-2.) The following claims are presented in the petition: (1) False evidence was presented at

8

petitioner’s trial in violation of state law; (2) The state obtained petitioner’s conviction based on

9

evidence now known to be false in violation of the Due Process Clause of the Fourteenth

10

Amendment; and (3) Trial counsel provided ineffective assistance by failing to investigate

11

petitioner’s case and discover the false evidence.

12

If petitioner does not secure relief in the California State courts on his newly presented

13

habeas claims, he will amend his current federal habeas petition to add the federal claims.

14

Accordingly, petitioner moves the court to continue to hold this federal habeas petition in

15

abeyance while he exhausts his newly-discovered habeas claims in state court. (ECF No. 32.)

16

For the following reasons, the undersigned recommends that the district court grant this motion.

17

II.

Legal Standard and Analysis

18

District courts should stay a mixed petition when “the petitioner ha[s] good cause for his

19

failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication

20

that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S.

21

269, 277-78 (2005). The Ninth Circuit has clarified that “good cause” for failure to exhaust does

22

not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

23

Just as the court did when petitioner originally moved to stay this action (ECF Nos. 4; 5),

24

the undersigned finds that petitioner has met the criteria set forth in Rhines for the issuance of a

25

stay. Moreover, if petitioner obtains relief in state court, his federal petition may be rendered

26

moot, thereby serving the interests of judicial economy as well as the interests of justice.

27

////

28

////
3

1

III.

Conclusion

2

Accordingly, IT IS HEREBY RECOMMENDED that:

3

(1)

4

Petitioner’s motion to continue to hold this federal habeas petition in abeyance

while he exhausts his newly-discovered habeas claims in state court be granted;

5

(2)

This action continues to be stayed and administratively closed by the Clerk of the

7

(3)

Direct Petitioner to file and serve a status report in this case on the first court day

8

of each month; and

9

(4)

6

10

Court;

Order Petitioner to file a motion to lift the stay within thirty days after petitioner is

served with the California Supreme Court’s order disposing of his latest state exhaustion petition.

11

These findings and recommendations are submitted to the United States District Judge

12

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

13

after being served with these findings and recommendations, petitioner may file written

14

objections with the court. Such a document should be captioned “Objections to Magistrate

15

Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

16

within the specified time may waive the right to appeal the District Court’s order. Martinez v.

17

Ylst, 951 F.2d 1153 (9th Cir. 1991).

18

Dated: March 28, 2017

19
20
21
22
23
24

TIM-DLB:10
DB / ORDERS / ORDERS.PRISONER.HABEAS / vill.1849.rhines

25
26
27
28
4