Smith v. Montgomery et al

Filing 13

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/16/2015 ORDERING petitioner may file, not more than 30 days, a second amended petition containing only exhausted claims; and petitioner's failure to timely file a second amended petition will result in dismissal of the petition without prejudice to re-filing if and when state remedies are exhausted as to all claims therein. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYSHAWN DONTAY SMITH,

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No. 2:14-cv-2468 CKD P

Petitioner,
v.

ORDER

W. L. MONTGOMERY, et al.,
Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. He challenges his 2012 conviction in the Sacramento County

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Superior Court for attempted robbery and other offenses. (ECF No. 1.)

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In his original petition, petitioner raised one claim: that the trial court erred by allowing

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the prosecutor to present prejudicial evidence of third-party attempts to influence the testimony of

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a witness, Davis. (Id. at 5.) On October 27, 2014, the petition was dismissed with leave to

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amend. (ECF No. 5.)

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Petitioner’s amended petition is now before the court for screening. (ECF No. 12.) In

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addition to his original claim, petitioner argues that his trial counsel was ineffective under the

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Sixth Amendment with respect to this prejudicial evidence concerning the victim, Davis. (Id. at

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3.) Petitioner concedes this claim is unexhausted, as it was raised in the California Supreme

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Court in February 2015. (Id. at 2-3.) The United States Supreme Court has held that a federal
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district court may not entertain a petition for habeas corpus unless the petitioner has exhausted

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state remedies with respect to each of the claims raised. Rose v. Lundy, 455 U.S. 509 (1982). A

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mixed petition containing both exhausted and unexhausted claims must be dismissed.

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Petitioner seeks a stay of this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005)

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while he exhausts his new claim in the state supreme court. (Id. at 3.) To obtain a Rhines stay of

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a mixed petition pending exhaustion of the unexhausted claims, the petitioner must show that (1)

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the unexhausted claims are potentially meritorious; and (2) petitioner had good cause for his

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earlier failure to exhaust state remedies.1 544 U.S. at 278.

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In his Sixth Amendment claim, petitioner argues that his attorney should have requested a

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limiting jury instruction concerning the evidence that third parties had attempted to persuade the

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victim, Davis, to change her story. He argues that his attorney’s failure to request a limiting

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instruction prejudiced the trial outcome. (Id. at 16-17.) See Berghuis v. Thompkins, 560 U.S.

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370, 389-390 (2010) (considering whether counsel was ineffective in failing to request a limiting

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instruction in light of the full record).
Under Rhines, a district court abuses its discretion in granting a stay when petitioner’s

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unexhausted claims are “plainly meritless.” 544 U.S. at 277; see also Cassett v. Stewart, 406 F.3d

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614, 623-624 (9th Cir. 2005) (“We now join our sister circuits in adopting the Granberry2

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standard and hold that a federal court may deny an unexhausted petition on the merits only when

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it is perfectly clear that the applicant does not raise even a colorable federal claim.”). Here,

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without the benefit of the trial record, the court finds that petitioner’s IAC claim has sufficient

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potential merit to go forward.

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As to good cause for failure to exhaust state remedies earlier, petitioner asserts that his

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appellate counsel failed to bring an ineffective assistance claim, even though “it was incumbent

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upon trial counsel[] to raise a limiting jury instruction.” (ECF No. 15-16.) Petitioner contends

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that his appellate counsel’s decision “was premised on a serious misunderstanding of California

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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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laws.” (Id. at 17.) After doing his own research in the prison law library, petitioner decided to

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raise an ineffective assistance claim. (Id. at 3.)

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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). However, “a

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reasonable excuse, supported by evidence to 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 his IAC claim on direct appeal. From the petition

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

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Strickland standard.

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On the record before the court, petitioner has not shown “good cause” under Rhines and
thus will be directed to file a second amended petition containing only exhausted claims. Failing

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that, the current petition will be dismissed as “mixed” without prejudice to refiling once all of

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petitioner’s claims are exhausted. See 745 F.3d at 980 (mixed petition must be dismissed,

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

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amending or resubmitting the habeas petition to present only exhausted claims to the district

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court.”), citing Rose v. Lundy, 455 U.S. 509 (1982).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Not more than thirty days from the date of this order, petitioner may file a second

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amended petition in this action containing only exhausted claims; and
2. Petitioner’s failure to timely file a second amended petition will result in dismissal of

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the petition at ECF No. 12, without prejudice to re-filing if and when state remedies are exhausted

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as to all claims therein.

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Dated: April 16, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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