Rodriguez v. Lizzaraga

Filing 27

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 10/3/16 ORDERING that within 30 days from the date of this order, petitioner shall file any motion for stay. If petitioner seeks to stay this action under Rhines, he mus t address the three Rhines conditions set forth above. If petitioner seeks to stay this action under Kelly, petitioner must also submit an amended petition, raising only exhausted claims. Failure to file a motion for stay in compliance with this orde r will result in an order dismissing petitioner's unexhausted claims, and this action will proceed solely on petitioner's exhausted claims. Petitioners motion for stay, if any, shall be briefed pursuant to Local Rule 230(l). It is RECOMMENDED that 17 MOTION to DISMISS based petitioners failure to state a cognizable claim be granted as to claim 1 and denied as to claim 6. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

RICHARD C. RODRIGUEZ,

12

Petitioner,

13
14

No. 2:15-cv-1154 JAM DB P

v.

ORDER AND FINDINGS &
RECOMMENDATIONS

JOE LIZARRAGA, Warden,

15

Respondent.

16
17

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

18

pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2012 convictions for first degree burglary

19

and for receiving stolen property. Before the court is respondent's motion to dismiss the petition

20

for failure to exhaust state court remedies and for failure to allege claims cognizable on habeas

21

corpus.
Exhaustion

22
23
24

I.

Legal Standards
The exhaustion of state court remedies is a prerequisite to granting a petition for writ of

25

habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement by

26

providing the highest state court with a full and fair opportunity to consider all claims before

27

presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

28

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985).
1

1

The state court has had an opportunity to rule on the merits when the petitioner has fairly

2

presented the claim to that court. The fair presentation requirement is met where the petitioner

3

has described the operative facts and legal theory on which his claim is based. Picard, 404 U.S. at

4

277-78. Generally, it is “not enough that all the facts necessary to support the federal claim were

5

before the state courts...or that a somewhat similar state-law claim was made.” Anderson v.

6

Harless, 459 U.S. 4, 6 (1982). Instead,

7

[i]f state courts are to be given the opportunity to correct alleged
violations of prisoners' federal rights, they must surely be alerted to
the fact that the prisoners are asserting claims under the United
States Constitution. If a habeas petitioner wishes to claim that an
evidentiary ruling at a state court trial denied him the due process of
law guaranteed by the Fourteenth Amendment, he must say so, not
only in federal court, but in state court.

8
9
10
11

Duncan v. Henry, 513 U.S. 364, 365 (1995). Accordingly, “a claim for relief in habeas corpus

12

must include reference to a specific federal constitutional guarantee, as well as a statement of the

13

facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). The

14

United States Supreme Court has held that a federal district court may not entertain a petition for

15

habeas corpus unless the petitioner has exhausted state remedies with respect to each of the

16

claims raised. Rose v. Lundy, 455 U.S. 509, 522 (1982). A mixed petition containing both

17

exhausted and unexhausted claims must be dismissed. Id.

18

II.

19

Analysis
In the present case, petitioner raises fourteen claims in his petition. (ECF No. 1.)

20

Respondent moves to dismiss petitioner's claims 10 through 14 on the grounds that petitioner

21

failed to exhaust his state court remedies as to each of those claims. In addition, respondent

22

moves to dismiss claims 1 and 6, alleging that petitioner failed to state claims cognizable on

23

habeas corpus.

24

After reviewing the record in this action, it appears that because petitioner filed no post-

25

conviction collateral challenges in state court, he has only exhausted the claims raised in his

26

petition for review filed in the California Supreme Court. The nine claims raised in the petition

27

for review are:

28

////
2

1

I.

THE THREE STRIKES REFORM ACT OF 2012, WHICH
REDUCES PUNISHMENT FOR CERTAIN NONVIOLENT THIRD-STRIKE OFFENDERS, APPLIES
RETROACTIVELY TO A DEFENDANT WHO WAS
SENTENCED BEFORE THE ACT’S EFFECTIVE DATE
BUT WHOSE JUDGMENT WAS NOT FINAL UNTIL
AFTER THAT DATE.

II.

DENIAL OF THE MANDATORY AMELIORATIVE
BENEFITS OF SECTIONS 667 AND 1170.12 UNDER
ESTRADA
WOULD
VIOLATE
THE
EQUAL
PROTECTION
CLAUSE
OF
THE
FEDERAL
CONSTITUTION.

III.

THERE
IS
INSUFFICIENT
EVIDENCE
OF
APPELLANT’S INTENT TO COMMIT THEFT AT THE
TIME OF[] APPELLANT’S ENTRY INTO THE
STORAGE ROOM TO SUPPORT THE BURGLARY
CONVICTION.

IV.

APPELLANT’S
CONVICTIONS
SHOULD
BE
REVERSED BECAUSE THE RECEIVING STOLEN
PROPERTY CHARGE WAS ADDED TO THE
COMPLAINT
AFTER
THE
MISTRIAL,
DEMONSTRATING VINDICTIVE PROSECUTION.

V.

THE TRIAL COURT ERRED PREJUDICIALLY IN
DENYING APPELLANT’S SEVERANCE MOTION,
RENDERING
THE
TRIAL
FUNDAMENTALLY
UNFAIR IN VIOLATION OF DUE PROCESS.

VI.

THE TRIAL COURT’S FACTUALLY CHARGED
INSTRUCTION REGARDING THE MEANING OF
FUNCTIONALLY CONNECTED AS IT RELATES TO
FIRST DEGREE BURGLARY DENIED APPELLANT []
HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

VII.

THE TRIAL COURT ERRED WHEN IT DENIED
APPELLANT’S MOTION FOR MISTRIAL AFTER THE
JURY SAW HIM IN HANDCUFFS AND BELLY
CHAINS.

VIII.

THE TRIAL COURT VIOLATED APPELLANT’S
RIGHTS AGAINST SELF-INCRIMINATION AND TO
DUE PROCESS OF LAW WHEN IT REQUIRED THAT
APPELLANT TESTIFY REGARDING THE FACTS OF
THE INSTANT CHARGES IN ORDER FOR HIM TO
CONSIDER STRIKING ANY OF HIS STRIKES AT HIS
SENTENCING HEARING.

IX.

THE PROSECUTOR’S ARGUMENT VIOLATED THE
CONSTITUTIONAL
PROHIBITION
AGAINST
COMMENT BY THE PROSECUTOR ON A
DEFENDANT’S FAILURE TO TESTIFY.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

1

(Lodged Doc. No. 4 at i-ii.1)

2
3

These nine claims appear to be identical to the first nine claims raised in the habeas
petition filed here. (See ECF No. 1 at 10-11.) Accordingly, they are exhausted.
Respondent contends petitioner’s remaining five claims are not exhausted. Those claims

4
5

are:

6

Claim 10 - Petitioner was denied effective assistance of counsel because trial

7

counsel failed “to bring the city lighting engineer with a ‘light meter’” to prove that

8

witness Lauren McNeil’s “flawed identification was impermissibly suggestive.”

9

Petitioner cites Stovall v. Denno, 388 U.S. 293 (1967) and Manson v. Brathwaite, 432

10

U.S. 98 (1977), both of which examined whether an allegedly tainted identification

11

violated due process. (ECF No. 1 at 11.) Petitioner also claims that defense counsel

12

should have brought in McNeil’s medical doctor to show the witness wore glasses. (ECF

13

No. 1 at 35.)

14

Claim 11 - A sworn declaration by Richard Rodriguez, Jr. and the failure to find

15

petitioner’s fingerprints shows petitioner is innocent of all charges. “The March 20, 2015,

16

Sworn Declaration by Richard Rodriguez Jr. proves that The Petitioner/Appellant was

17

misidentified as the person seen by Lauren McNeil. The suggestive identification by this

18

witness is false. The People’s fingerprints that were taken from the storage area ‘Prove’ it

19

was not Petitioner/Appellant’s Prints in that Storage area. Reporter’s Transcript at page

20

227. (Exhibit-D)” (ECF No. 1 at 11, 35-36).
Claim 12 - Petitioner’s conviction resulted from state court errors which, taken

21
22

together, denied petitioner a fair trial. He cites Estelle v. McGuire, 502. U.S. 62 (1991)

23

(ECF No. 1 at 11.). Specifically, petitioner claims the trial court violated petitioner’s

24

rights to a fair trial by allowing the prosecution to add the receiving stolen property

25

charge, by ordering shackling, and by denying petitioner’s “motions.” (ECF No. 1 at 36.)

26

Taken together, petitioner claims, these errors created an appearance of bias in favor of

27
28

1

When he filed his motion, respondent lodged copies of state court records regarding petitioner’s
underlying convictions. (See Notice of Lodging Documents in Paper (ECF No. 18).)
4

1

the prosecution and unfairness at trial.

2

Claim 13 - Prosecutorial misconduct for allegedly misleading the jury about the

3

fact that Petitioner’s fingerprints were not found in the storage area, violating his rights to

4

a “‘Constitutionally Fair’ Trial under the Due Process” provisions of the United States

5

Constitution. (ECF No. 1 at 36-37.)

6

Claim 14 - The prosecutor withheld evidence that a third party was involved in the

7

burglary. (ECF No. 1 at 37-38.)

8

Petitioner makes no attempt to show he raised these five claims before the state’s highest

9

court. In his opposition, he simply states that he has exhausted all claims. (ECF No. 21.) This

10

court finds that claims 10, 11, 13, and 14 were not raised before the state court. Some of the

11

individual allegations raised in claim 12 were made in petitioner’s petition for review to the

12

California Supreme Court. However, the focus of claim 12 – that the trial court’s numerous

13

errors taken together showed bias and were unfair – was not raised in state court. Accordingly,

14

this court finds that the legal basis for claim 12 was not exhausted and the claim as a whole is

15

therefore unexhausted.

16
17

III.

Stay for Exhaustion
As set forth above, this court may not address the merits of a petition for writ of habeas

18

corpus unless petitioner has exhausted state court remedies with respect to each of his federal

19

claims. Rose, 455 U.S. at 509; 28 U.S.C. § 2254(b)(1). However, a habeas petitioner may

20

request that a federal action be stayed to allow for exhaustion in state court.

21

Federal law recognizes two different procedures that a prisoner may use to stay a federal

22

habeas action. See Rhines v. Weber, 544 U.S. 269 (2005) (staying timely mixed petition); Kelly

23

v. Small, 315 F.3d 1063 (9th Cir. 2003) (allowing prisoner to dismiss unexhausted claims and

24

stay action as to exhausted claims subject to potential later amendment of petition), overruled on

25

other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).

26

The first stay procedure is referred to as a “Rhines stay.” Under Rhines, a district court

27

may stay a mixed petition if the following conditions are met: (1) “the petitioner had good cause

28

for his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there
5

1

is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at

2

278. The Supreme Court has made clear that this option “should be available only in limited

3

circumstances.” Id. at 277. Moreover, a stay granted pursuant to Rhines may not be indefinite;

4

reasonable time limits must be imposed on a petitioner's return to state court. Id. at 277-78.

5

“Good cause” under Rhines is not clearly defined. The Supreme Court has explained that

6

in order to promote the Anti-terrorism and Effective Death Penalty Act's (“AEDPA”) twin goals

7

of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay

8

and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The

9

Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an

10

“extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005).

11

Several district courts have concluded that the standard is more generous than the showing

12

needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F. Supp. 2d

13

844, 849 (D. S.D. 2005) (applying the Supreme Court's mandate on remand). This view finds

14

support in Pace, where the Supreme Court acknowledged that a petitioner's “reasonable

15

confusion” about the timeliness of his federal petition would generally constitute good cause for

16

his failure to exhaust state remedies before filing his federal petition. Pace v. DiGuglielmo, 544

17

U.S. 408, 416-17 (2005).

18

However, in Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), the Ninth Circuit

19

ruled that petitioner did not show good cause by arguing that he was “under the impression” that

20

his counsel had raised all claims before the state court of appeal. The Ninth Circuit explained that

21

finding good cause in that argument “would render stay-and-abey orders routine” and “would run

22

afoul of Rhines and its instruction that district courts should only stay mixed petitions in 'limited

23

circumstances.”' Wooten, 540 F.3d at 1024. In 2014, the Ninth Circuit clarified that “[t]he good

24

cause element is the equitable component of the Rhines test,” and that although “a bald assertion

25

cannot amount to a showing of good cause, a reasonable excuse, supported by evidence to justify

26

a petitioner's failure to exhaust, will.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).2

27
28

2

Petitioner must meet all three Rhines prongs. As petitioner cannot meet the first prong, the two
remaining prongs need not be addressed. Rhines v. Weber, 544 U.S. 269, 278 (2005)
6

The second stay procedure is referred to as a “Kelly stay.” Under Kelly, the court may

1
2

also stay a petition setting forth only exhausted claims, to permit exhaustion of additional claims

3

with the intention that they will be added by amendment following exhaustion. King v. Ryan,

4

564 F.3d 1133 (9th Cir. 2009) (citing Kelly, 315 F.3d at 1063). If the petition currently on file

5

was fully exhausted, petitioner could seek a stay-and-abeyance order to exhaust claims not raised

6

in that federal petition under Kelly. However, the Ninth Circuit has warned that “[a] petitioner

7

seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his

8

federal petition once he has exhausted them only if those claims are determined to be

9

timely...[a]nd demonstrating timeliness will often be problematic under the now-applicable legal

10

principles.” King, 564 F.3d at 1140-41. If a petitioner's newly-exhausted claims are untimely, he

11

will be able to amend his petition to include them only if they share a “common core of operative

12

facts” with the claims in the original federal petition. Id. at 1141.

13

Unless petitioner seeks to stay this action, the court must dismiss the unexhausted claims

14

and proceed solely on the exhausted claims. If petitioner seeks to choose the Rhines approach, he

15

must file a motion for stay and address the three Rhines conditions set forth above. If petitioner

16

seeks to stay this action under Kelly, petitioner must submit an amended petition along with his

17

renewed motion for stay, taking care to raise only exhausted claims.3

18

Petitioner is cautioned that if he fails to respond to this order, the court will grant

19

respondent's motion to dismiss, dismiss petitioner's unexhausted claims without prejudice, and

20

this action will proceed solely on the exhausted claims.4

21
3

22
23
24
25
26
27
28

The Kelly approach is riskier for petitioners because the timeliness of the new claims will
depend on whether they “relate back” to the original, timely filed claims. King, 564 F.3d at 1142
(citing Mayle v. Felix, 545 U.S. 644 (2005)).
4

Petitioner is cautioned that if he chooses to proceed on an amended petition raising only
exhausted claims he will risk forfeiting consideration of the unexhausted claims in this or any
other federal court. See McCleskey v. Zant, 499 U.S. 467 (1991); see also Rose, 455 U.S. at 52021; Rule 9(b), Rules Governing Section 2254 Cases. Petitioner is further advised that a one year
statute of limitations is applicable to all claims presented in a federal habeas corpus petition. See
28 U.S.C. § 2244(d)(1); see also Mardesich v. Cate, 668 F.3d 1164 (9th Cir. 2012) (holding that
the one year statute of limitations applied to each claim in a habeas petition on an individual
basis).
7

1

Failure to State a Cognizable Claim
Respondent next argues that petitioner’s claims 1 and 6 do not state claims cognizable on

2
3

habeas corpus. Federal habeas relief is available to state prisoners only to correct violations of

4

the United States Constitution, federal laws, or treaties of the United States. 28 U.S.C. § 2254(a).

5

Federal habeas relief is not available to retry a state issue that does not rise to the level of a

6

federal constitutional violation. Wilson v. Corcoran, 562 U.S. 1, 4 (2010); Estelle v. McGuire,

7

502 U.S. 62, 67–68 (1991). Alleged errors in the application of state law are not cognizable in

8

federal habeas corpus. Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002). In a habeas corpus

9

proceeding, this court is bound by the California Supreme Court's interpretation of California law

10

unless it is determined that the interpretation is untenable or a veiled attempt to avoid review of

11

federal questions. Murtishaw v. Woodford, 255 F.3d 926, 964 (9th Cir. 2001).

12

In claim 1, petitioner alleges that Proposition 36, the Three Strikes Reform Act of 2012,

13

should apply retroactively to his case under People v. Estrada, 63 Cal. 2d 740 (1965). (ECF No. 1

14

at 13-14.) When petitioner filed his petition for review before the California Supreme Court, that

15

court had a pending case to resolve this issue. The California Supreme Court denied the petition

16

for review “without prejudice to any relief to which defendant might be entitled after this court

17

decides People v. Conley, S211275.” (Lodged Doc. #5.) This court’s research reveals that the

18

California Supreme Court decision in Conley affirmed the opinion of the Court of Appeal that

19

Proposition 36 did not have retroactive application.5
In 2015, apparently based on the passage of California’s Proposition 47 in 2014, the Yolo

20
21

County Superior Court granted petitioner’s request to reduce his conviction for receiving stolen

22

property from a felony to a misdemeanor. (Lodged Doc. #6.) However, as noted by the

23

prosecutor at that hearing, this reduction did not result in a change to petitioner’s sentence

24

because he was serving two 25 to life sentences to run concurrently and the change affected only

25

one of those sentences. (Id.) According to respondent, petitioner appealed the superior court’s

26
27
28

5

This court may take judicial notice of proceedings in other courts and other matters of public
record. See Rosales-Martinez v. Palmer, 753 F.3d 890, 894 (9th Cir. 2014). Dockets for cases of
the California Supreme and Appellate Courts are at: http://appellatecases.courtinfo.ca.gov
8

1

decision; though, it is not clear upon what grounds he has done so. (See Lodged Doc. #7.)

2

According to the docket of the California Court of Appeal for the Third Appellate District, the

3

appeal has been fully briefed and has yet to be decided.

4

A review of petitioner’s claim 1 shows that respondent is correct. Petitioner alleges only

5

violations of state law in claim 1. In claim 2, petitioner challenges the state’s failure to

6

retroactively apply Proposition 36 under the federal Constitution. Because he does not state a

7

claim cognizable under 28 U.S.C. § 2254, this court finds claim 1 should be dismissed.

8

Respondent also alleges petitioner’s claim 6 is not cognizable in this action because “[a]

9

challenge to jury instructions does not generally state a federal constitutional claim.” (ECF No.

10

17 at 6.) In claim 6, petitioner challenges the trial court’s instruction to the jury on the

11

“functionally connected” element of burglary. According to petitioner, the trial court’s

12

instruction relieved the prosecution of its burden of proving an element of the crime beyond a

13

reasonable doubt, violating petitioner’s rights to due process and a jury trial. (ECF No. 1 at 25.)

14

Despite respondent’s characterization of petitioner’s claim 6 as a “state law claim,” petitioner

15

relies upon federal cases United States v. Gaudin, 515 U.S. 506, 509-11 (1995), Sullivan v.

16

Louisana, 508 U.S. 275, 277-79 (1993), and United States v. Meadows, 598 F.2d 984, 990

17

(1979). (See ECF No. 1 at 25-26.) In Sullivan, the United States Supreme Court held a

18

reasonable doubt instruction given by a state court violated both due process and the petitioner’s

19

right to a jury trial. In Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983), a case cited by

20

respondent, the court also found a petitioner’s allegations that jury instruction error violated his

21

due process rights stated a cognizable claim under 28 U.S.C. § 2254. Respondent’s blanket

22

statement that instructional error does not implicate federal constitutional concerns is simply

23

incorrect.

24
25

This court finds petitioner’s claim 6 states a cognizable claim for relief under the federal
constitution.

26

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

27

1.

28

Within thirty days from the date of this order, petitioner shall file any motion for stay.
If petitioner seeks to stay this action under Rhines, he must address the three Rhines
9

1

conditions set forth above. If petitioner seeks to stay this action under Kelly,

2

petitioner must also submit an amended petition, raising only exhausted claims.

3

Failure to file a motion for stay in compliance with this order will result in an order

4

dismissing petitioner's unexhausted claims, and this action will proceed solely on

5

petitioner's exhausted claims.

6

2. Petitioner’s motion for stay, if any, shall be briefed pursuant to Local Rule 230(l).

7

Further, IT IS HEREBY RECOMMENDED that respondent’s motion to dismiss based

8
9

petitioner’s failure to state a cognizable claim be granted as to claim 1 and denied as to claim 6.
These findings and recommendations will be submitted to the United States District Judge

10

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

11

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

12

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

13

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

14

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

15

are advised that failure to file objections within the specified time may result in waiver of the

16

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

17

Dated: October 3, 2016

18
19
20
21
22
23
24
25
26
27
28
10

1
2
3
4

DLB:9
DLB1/prisoner-habeas/Rodr1154.mtd

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
11