Bunyard v. Davis

Filing 61

ORDER signed by Senior Judge William B. Shubb on 1/4/19 ADOPTING 58 FINDINGS AND RECOMMENDATIONS to the extent that they are not inconsistent with the reasoning of this order. Petitioner's 51 motion to stay and abey federal habeas corpus proceedings is GRANTED. Respondent's 45 motion to dismiss is DENIED as moot. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JERRY BUNYARD,

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2:15-cv-1790 WBS AC

Petitioner,

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No.

v.

ORDER

RON DAVIS, Warden,
Respondent.

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Petitioner, a state prisoner sentenced to the death

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penalty, filed an application for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.

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referred to a United States Magistrate Judge pursuant to 28

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U.S.C. § 636(b)(1)(B) and Local Rule 302.

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(Docket No. 44.)

The matter was

On July 6, 2017, respondent moved to dismiss the

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petition on the grounds that 23 of the 43 claims for relief were

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not exhausted and that one of the claims was not cognizable.

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(Docket No. 45.)

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exhaustion petition with the California Supreme Court.

On August 23, 2017, petitioner filed an

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He then

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asked this court to stay these proceedings and hold them in

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abeyance pending the disposition of the exhaustion petition.

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(Docket No. 51.)

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A federal district court may not address the merits of

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a petition for writ of habeas corpus unless the petitioner has

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exhausted state court remedies with respect to each of his

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federal claims.

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2254(b)(1).

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is “mixed,” i.e., containing both exhausted and unexhausted

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claims, a district court may stay that petition pending the

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exhaustion of all claims only in “limited circumstances.”

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v. Weber, 544 U.S. 269, 277 (2005).

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a district court may stay a “mixed” federal habeas petition upon

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a demonstration that: (1) there is “good cause” for petitioner’s

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failure to previously exhaust her unexhausted claims in the state

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courts; (2) the unexhausted claims are potentially meritorious;

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and (3) petitioner has not engaged in intentionally dilatory

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litigation tactics.

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Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. §

In cases where, as here, a federal habeas petition

Rhines

Specifically, under Rhines,

Id. at 277-78.

On November 20, 2018, the magistrate judge filed

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findings and recommendations regarding petitioner’s Motion to

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Stay (“Findings and Recommendations”).

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Applying Rhines’ three-part test to the instant case, the

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magistrate judge recommended granting petitioner’s Motion to Stay

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and dismissing respondent’s Motion to Dismiss as moot.

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findings and recommendations were served on all parties and

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contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen

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days.

(Docket No. 58.)

(Docket No. 58.)

These

Respondent has filed objections to the
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findings and recommendations.

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also responded to those objections.

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accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and

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Local Rule 304, this court has conducted a de novo review of

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petitioner’s Motion for Stay and Abeyance.

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(Docket No. 59).

Petitioner has

(Docket No. 60.)

In

The petitioner need only establish that a Rhines stay

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is appropriate for one of its unexhausted claims since, “[o]ne

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claim requiring a stay acts as an umbrella for all claims.”

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Horning v. Martel, No. 2:10-CV-01932 JAM GGH, 2011 WL 5921662, at

See

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*3 (E.D. Cal. Nov. 28, 2011) (findings and recommendations),

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adopted in full, No. CIV S-10-1932 JAM GGH, 2012 WL 163784 (E.D.

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Cal. Jan. 19, 2012).

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his Motion to Stay and the magistrate judge’s findings and

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recommendations focused upon the ways in which Claim 35 satisfies

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the Rhines criteria.

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Findings and Recommendations at 4-8).

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examines whether or not Claim 35 satisfies the Rhines criteria.

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I.

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Both petitioner’s memorandum in support of

(Mem. in Supp. of Mot. to Stay at 5-6;
This court accordingly

Discussion
Throughout petitioner’s state post-conviction

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proceedings, he was represented by attorneys in private practice

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who were appointed by the California Supreme Court.

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Writ of Habeus Corpus at 370 (Docket No. 44).)

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petitioner’s writ of habeus corpus concerns the alleged disparity

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between the allegedly meager resources available to him in his

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habeas corpus proceedings and the far greater resources available

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to similar petitioners represented by public agencies.

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maintains that these disparities are unconstitutional under the

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equal protection and due process clauses of the Fourteenth
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(Pet. for

Claim 35 of

Claim 35

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Amendment.

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exhausted, but they disagree about whether the petitioner has

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demonstrated “good cause” for his failure to exhaust the claim in

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state court, as well as about whether the claim is plainly

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meritless and whether the petitioner has engaged in dilatory or

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abusive litigation tactics.

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issues in turn.

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A.

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(Id. at 371.)

The parties agree that Claim 35 is not

The court will address each of these

“Good cause” for failure to exhaust
During his initial habeas corpus proceedings, the

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petitioner requested additional funding in order develop and

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establish law and fact relevant to his claims.

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Stay and Abey Federal Habeus Corpus Proceedings at 5 (Docket No.

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51).)

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for over five years; ultimately, it denied the request at the

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same time as it denied his state habeas petition.

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(Pet’r’s Mot. to

The California Supreme Court did not rule on this request

(Id.)

In his memorandum in support of his Motion to Stay,

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petitioner contends that Claim 35’s constitutional violations did

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not occur until the California Supreme Court denied his request

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for additional funds.

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because this violation occurred at the same time as the denial of

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his state habeas case, he could not have raised the claim at an

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earlier time.

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“[p]etitioner’s assertion that any disparate treatment could not

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have been raised until the conclusion of the proceedings does not

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demonstrate good cause” since the alleged disparity of treatment

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“must have existed throughout his representation, not just when

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the state post-conviction proceedings concluded.”

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Magistrate Judge’s Findings and Recommendations at 6 (Docket No.

(Id.)

(Id.)

Petitioner further argues that

Respondent counters by arguing that

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(Objs. to

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59).)

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The respondent may well be correct that the petitioner

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could have raised his disparity of treatment claim at some point

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prior to the conclusion of the state post-conviction proceedings.

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Respondent is wrong to suggest, however, that this fact alone

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dictates a lack of “good cause” for failure to exhaust under

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Rhines.

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becomes ripe for adjudication and the moment it becomes time-

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barred or moot.

There is a range of time between when a claim first

The fact that petitioner chose not to bring his

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disparate treatment claim at the earliest possible moment does

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not mean that there was not “good cause” to wait: the claim was

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apparently strengthened by the denial of his request for

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additional resources.

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petitioner’s request for additional resources occurred at the

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same time as the conclusion of his state habeas proceedings.

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this reason, in this case, “good cause” for waiting to bring the

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claim is indicative of “good cause” for failure to exhaust the

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claim in state court.

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B.

In the instant case, the denial of

For

The potential merit of the unexhausted claims
Even when good causes exists for a petitioner’s failure

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to exhaust a claim in state court, the district court may abuse

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its discretion if it grants petitioner stay when his unexhausted

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claims are “plainly meritless.”

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the merit of petitioner’s 35th claim is contested and complex.

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The court agrees with the magistrate judge’s finding that

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“[w]hether petitioner can successfully establish a violation of

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the Constitution, and the availability of federal habeas relief,

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are questions for another day.”

Rhines, 544 U.S. at 277.

Here,

Like the magistrate judge, “[a]t
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this stage, the undersigned cannot conclude that the claim is

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plainly meritless.”

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C.

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(Findings and Recommendations at 7)

Nature of petitioner’s litigation tactics
The court finds no evidence in the record that the

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petitioner has engaged in abusive or intentionally dilatory

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litigation tactics.

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Having carefully reviewed the file, the court finds the

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magistrate judge’s recommendations to be supported by the record.

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Though this court’s rationale for why petitioner had good cause

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for failing to exhaust his state law claims differs slightly from

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that of the magistrate judge, the outcome is the same.

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Accordingly, the court substantially adopts the magistrate

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judge’s findings and recommendations and grants petitioner’s

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motion for stay and abeyance.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The findings and recommendations filed November 20,

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2018 (Docket No. 58), are adopted to the extent that they are not

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inconsistent with the reasoning in this order;

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2.

Petitioner’s motion to stay and abey federal habeas

corpus proceedings (Docket No. 51) is granted; and

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3.

Respondent’s motion to dismiss (Docket No. 45) is

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denied as moot.

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Dated:

January 4, 2019

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