Garrett v. Grounds

Filing 34

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 04/21/16 ORDERING petitioner's motions for an extension of time to file a traverse 21 , 24 , 25 , 27 , 29 , 30 , and 33 are granted. Within 60 days o f the date of service of this order, petitioner shall file a traverse. Petitioner's request for a ruling on his motions for an extension of time 31 is granted. The clerk of the court is directed to randomly assign a United States District Ju dge to this action. U.S. District Judge John A. Mendez randomly assigned to this action. Also, RECOMMENDING that petitioner's motion for a stay and abeyance 17 be denied. MOTION to STAY 17 referred to Judge John A. Mendez. 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

HOLLIE GARRETT,

12
13
14

No. 2:14-cv-1973 KJN P (TEMP)

Petitioner,
v.

ORDER AND

R. GROUNDS, Warden,

15

FINDINGS AND RECOMMENDATIONS

Respondent.

16
17

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

18

corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion for a stay

19

and abeyance. Respondent filed an opposition to the motion, and petitioner filed a reply.

20
21

For the reasons stated below, the undersigned recommends denying petitioner’s motion
for a stay and abeyance.
BACKGROUND

22
23

On August 26, 2011, petitioner was convicted of forced oral copulation and forced oral

24

copulation in concert with another in the Sacramento County Superior Court. The superior court

25

sentenced petitioner to twenty years in state prison. (ECF No. 1 (Pet. at 1.))

26

On July 31, 2013, the California Court of Appeal affirmed petitioner’s judgment of

27

conviction. On November 13, 2013, the California Supreme Court denied review. (ECF No. 1

28

(Pet. at 2.))
1

1
2

On or about August 15, 2014, petitioner commenced this action by filing a federal habeas
corpus petition. In the petition, petitioner asserts four claims for relief:

3

(1) This court should decide if a conviction unsupported by substantial evidence violates

4

due process.

5

(2) This court should decide if testimony that C.G. offered to take a polygraph test

6

violated due process.

7

(3) This court should decide if erroneous aiding and abetting instructions violated due

8

process.

9

(4) This court should decide if a judgment dependent on unreliable DNA-profile evidence

10
11

violates due process.
(ECF No. 1 (Pet. Ex. A.)

12

On December 2, 2014, respondent filed an answer to the petition. (ECF No. 11.)

13

Petitioner did not file a traverse, so this matter was submitted for decision thirty days thereafter.
PETITIONER’S MOTION FOR A STAY AND ABEYANCE

14
15

Petitioner has filed a motion for a stay and abeyance and contends that he has uncovered

16

several additional claims that he did not assert on direct appeal or in his original federal habeas

17

petition. Petitioner now wishes to seek relief on the following additional unexhausted claims:

18

(1) The trial court violated his constitutional right to a fair and impartial jury.

19

(2) Petitioner was given full consecutive sentences without a special finding by a jury of

20

his peers.

21

(3) Appellate counsel provided ineffective assistance of counsel by failing to raise claims

22
23

(1) and (2).
(ECF No. 17 (Pet’r’s Mot. for Sty. and Abey. at 1-2.))

24

Counsel for respondent filed an opposition to petitioner’s motion for a stay and abeyance

25

on the grounds that a stay is not appropriate in this case because petitioner has not demonstrated

26

good cause for failing to previously bring these unexhausted claims, and petitioner’s unexhausted

27

claims are untimely. (ECF No. 20 (Resp’t’s Opp’n to Pet’r’s Mot. for Sty. and Abey. at 3-4.))

28

////
2

1
2

DISCUSSION
The court recommends denying petitioner’s motion for a stay and abeyance. As an initial

3

matter, insofar as petitioner seeks a stay of this action under Rhines v. Weber, 544 U.S. 269

4

(2005), the undersigned finds that petitioner has not shown the requisite good cause for failing to

5

exhaust his claims up to this point. The Ninth Circuit Court of Appeals has held:

6
7
8
9
10

The good cause element is the equitable component of the Rhines
test. It ensures that a stay and abeyance is available only to those
petitioners who have a legitimate reason for failing to exhaust a
claim in state court. As such, good cause turns on whether the
petitioner can set forth a reasonable excuse, supported by sufficient
evidence, to justify that failure. An assertion of good cause without
evidentiary support will not typically amount to a reasonable excuse
justifying a petitioner’s failure to exhaust.

11

Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014), cert. denied 135 S. Ct. 128 (2014). See also

12

Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (district courts have authority to stay habeas

13

proceedings when “the petitioner had good cause for his failure to exhaust, his unexhausted

14

claims are potentially meritorious, and there is no indication that the petitioner engaged in

15

intentionally dilatory litigation tactics.”) (quoting Rhines, 544 U.S. at 278).

16

In this case, petitioner has not provided this court with any “reasonable excuse” – let alone

17

evidence in support of a reasonable excuse – to justify his failure to bring his unexhausted claims

18

sooner. Blake, 745 F.3d at 982. As the Ninth Circuit made clear in Blake, a “bald assertion”

19

does not amount to a showing of good cause. Id. Nor has petitioner demonstrated that his

20

unexhausted claims are potentially meritorious as required. Rhines, 544 U.S. at 278. In fact,

21

petitioner has not asserted any factual basis in support of his unexhausted claims, so this court

22

cannot make a determination as to whether his claims are potentially meritorious in any case.

23

Accordingly, petitioner is not entitled to a stay of this action under the Rhines procedure.

24

Insofar as petitioner seeks a stay of this action under Kelly v. Small, 315 F.3d 1063 (9th

25

Cir. 2003), abrogated on other grounds by Robbins v. Carey, 481 F.3d 1143, 1148-49 (9th Cir.

26

2007), the undersigned finds that entering a stay would not be a proper exercise of this court’s

27

discretion. See Mena, 813 F.3d at 910 (“district courts have authority to issue stays where such a

28

stay would be a proper exercise of discretion”) (quoting Rhines, 544 U.S. at 276). A habeas
3

1

petitioner is not required to show good cause for a stay under the Kelly procedure. See King v.

2

Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). However, “[a] petitioner seeking to use the Kelly

3

procedure will be able to amend his unexhausted claims back into his federal petition once he has

4

exhausted them only if those claims are determined to be timely” under Antiterrorism and

5

Effective Death Penalty Act (“AEDPA”) statute of limitations. Id. 1140-41.

6

In this case, petitioner’s unexhausted claims are untimely. The California Supreme Court

7

denied petitioner’s petition for review on November 13, 2013, so his conviction became final

8

ninety days later, on February 11, 2014, when the time for filing a petition for a writ of certiorari

9

with the United States Supreme Court had expired. Bowen v. Roe, 188 F.3d 1157 (9th Cir.

10

1999). The AEDPA statute of limitations period began to run the following day, on February 12,

11

2014, and expired one year later on February 12, 2015. 28 U.S.C. § 2244. Although petitioner

12

filed his original federal habeas petition in August 2014, he did not raise his new unexhausted

13

claims until he filed the pending motion for a stay and abeyance in August 2015, well after the

14

statute of limitations had expired. Contrary to petitioner’s contention, the pendency of this action

15

did not toll the statute of limitations. See Duncan v. Walker, 533 U.S. 167, 172 (2001).

16

To be sure, if newly exhausted claims are untimely, a habeas petitioner may amend them

17

into a pending federal habeas petition if they “relate back” to the petitioner’s original exhausted

18

claims, that is, if the newly exhausted claims share a “common core of operative facts” with the

19

original exhausted claims. King, 564 F.3d at 1141 (quoting Mayle v. Felix, 545 U.S. 644, 659

20

(2005)). Here, however, the undersigned cannot conceive of how petitioner could amend his

21

unexhausted claims into his pending federal habeas petition. Based on the limited information he

22

has provided in his motion, petitioner’s claims do not appear as though they could share any

23

“common core of operative facts” with his original exhausted claims. Mayle, 545 U.S. at 664. A

24

new claim does not “relate back” to an original claim simply because it arises from “the same

25

trial, conviction, or sentence.” Id. at 662. Accordingly, petitioner is not entitled to a stay of this

26

action under the Kelly procedure.

27
28

In sum, for all of the foregoing reasons, the court recommends denying petitioner’s
motion for a stay and abeyance.
4

1
2

OTHER MATTERS
Petitioner filed multiple requests for an extension of time to file a traverse in this matter

3

while his motion for a stay and abeyance was pending. Petitioner contends that he only received

4

respondent’s answer when respondent’s counsel provided him with a courtesy copy of it in

5

connection with the parties’ briefing on his motion for a stay and abeyance. Good cause

6

appearing, the court grants petitioner an extension of time to file a traverse in this matter.

7

CONCLUSION

8

In accordance with the above, IT IS HEREBY ORDERED that:

9

1.

Petitioner’s motions for an extension of time to file a traverse (ECF Nos. 21, 24-25,

10

27, 29-30 & 33) are granted. Within sixty days of the date of service of this order, petitioner shall

11

file a traverse.

12
13
14
15

2. Petitioner’s request for a ruling on his motions for an extension of time (ECF No. 31)
is granted.
3.
this action.
IT IS HEREBY RECOMMENDED that petitioner’s motion for a stay and abeyance

16
17

The Clerk of the Court is directed to randomly assign a United States District Judge to

(ECF No. 17) be denied.

18

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

19

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

20

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

21

objections with the court and serve a copy on all parties. Such a document should be captioned

22

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

23

objections shall be filed and served within seven days after service of the objections. The parties

24

are advised that failure to file objections within the specified time may waive the right to appeal

25

the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

26

Dated: April 21, 2016

27
28

garr1973.styd

5