Barkley v. Lizarraga

Filing 16

ORDER signed by Magistrate Judge Allison Claire on 10/21/2015 GRANTING petitioner's 15 amended motion to stay this action, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), pending exhaustion of petitioner's Claims Three through Ten i n the state courts. Petitioner shall inform this court, and file a request to lift the stay, within 30 days after a decision by the CA Supreme Court concluding state habeas review on petitioner's additional claims. The Clerk shall administratively close this case pending exhaustion. CASE STAYED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERMAINE BARKLEY,

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No. 2:15-cv-0655 AC P

Petitioner,
v.

ORDER

JOE LIZARRAGA,
Respondent.

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Petitioner is a state prisoner at Mule Creek State Prison (MCSP) who proceeds pro se and

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in forma pauperis with a First Amended Petition (FAP) for writ of habeas corpus pursuant to 28

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U.S.C. § 2254, ECF No. 14, and an amended motion to stay this action pursuant to Rhines v.

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Weber, 544 U.S. 269 (2005), ECF No. 15. Plaintiff has consented to the jurisdiction of the

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undersigned Magistrate Judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule

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305(a). See ECF No. 4.

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Under certain conditions, a district court may stay a “mixed petition” (containing both

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exhausted and unexhausted claims) while petitioner returns to state court to exhaust his

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unexhausted claims. See Rhines, 544 U.S. at 277-78; see also King v. Ryan, 564 F.3d 1133, 1140

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(9th Cir. 2009). A stay under Rhines is appropriate only when petitioner has demonstrated good

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cause for failing to previously exhaust his claims, and is not available if the unexhausted claims

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are “plainly meritless” or petitioner has engaged in “abusive litigation tactics or intentional
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delay.” Rhines, 544 U.S. at 277-78.

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Pending is petitioner’s fourth stay request. The current request, together with the FAP,

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conform to the requirements set forth in the court’s prior orders, see ECF Nos. 3, 8, 11, and

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warrant a stay of this action while petitioner exhausts his additional claims in the state courts.

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The FAP contains the following ten claims, only the first of which have been exhausted:1

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Claim One: Denial of petitioner’s right to fully confront and crossexamine the complaining witness.

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Claim Two: Ineffective assistance of trial counsel (IATC) based on
his failure to request that the jury be instructed on the law relating
to voluntary intoxication.

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Claim Three: Failure of prosecution to disclose potentially
exculpatory evidence, specifically, a photo taken, and text messages
written, by the complaining witness.

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Claim Four: IATC based on counsel’s failure to adequately explain
to petitioner the rejected plea offer and the possible consequences
of proceeding to trial.

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Claim Five: IATC based on counsel’s failure to investigate
“extremely vital discovery” and present it at trial, including the
comparison of two gun holsters; obtaining DNA testing of blood;
and obtaining the testimony of witness I. Martines.

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Claim Six: IATC based on counsel’s failure to impeach the
testimony of the complaining witness and Detective Williams.

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Claim Seven: IATC based on counsel’s failure to object to the
introduction of the following “hearsay evidence:” an unsupported
statement by the prosecution in closing argument concerning the
number of brown blankets; the prosecution’s unsupported statement
on rebuttal that a photo of the couches showed blood; the
prosecution’s introduction of a photo at trial of a trash can that
allegedly contained bloody clothes involved in the alleged crime,
despite the absence of any evidence (e.g. DNA testing of blood)
linking the clothes to the crime; the prosecution’s closing statement
that petitioner told the complaining witness to “sit” (rather than
“get”) on the bed.

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Claim Eight: IATC based on counsel’s failure to present “crucial
impeachment evidence” against the complaining witness
concerning her use of alcohol and plaintiff’s residence.

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Claim Nine: IATC based on counsel’s failure to present the
testimony of the following potential witnesses: P. Tracy, who

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While several of petitioner’s claims are “compound,” the court anticipates their refinement
through exhaustion in the state courts.
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provided a statement that the complaining witness recanted her
accusations against petitioner; D. Bickle, concerning petitioner’s
residence; and expert medical witnesses on petitioner’s behalf to
rebut the testimony of the state’s medical witnesses concerning the
alleged rape and injuries.

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Claim Ten: IATC based on counsel’s failure to obtain a
continuance of trial for the purpose of obtaining the testimony of
witness I. Martines to impeach the testimony of the complaining
witness.

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As stated in his FAP, and set forth in his previous motions to stay, petitioner was

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previously unable to exhaust Claims Three through Ten because unable to obtain a paper copy of

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his case file from trial counsel. See ECF Nos. 1, 7, 10. In his current motion to stay, petitioner

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demonstrates that he recently obtained the assistance of the Shasta County Public Defender to

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obtain a paper copy of his case file and make arrangements with the MCSP Litigation

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Coordinator to permit petitioner to view photographs and listen to electronic recordings. See ECF

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No. 15 at 25.

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The court finds that petitioner has demonstrated good cause for failing to previously

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exhaust Claims Three through Ten in state court, and has not engaged in “abusive litigation

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tactics” or “intentional delay” in this action. Rhines, 544 U.S. at 277-78. The court further finds

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that petitioner’s unexhausted claims are not “plainly meritless.” Id.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s amended motion to stay this action, ECF No. 15, is granted pursuant to

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Rhines v. Weber, 544 U.S. 269 (2005), pending exhaustion of petitioner’s Claims Three through

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Ten in the state courts.

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2. Petitioner is directed to inform this court, and file a request to lift the stay, within thirty

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(30) days after a decision by the California Supreme Court concluding state habeas review on

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petitioner’s additional claims.

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3. The Clerk of Court is directed to administratively close this case pending exhaustion.
DATED: October 21, 2015

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