Forbes v. Paramo

Filing 56

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 02/04/21 RECOMMENDING that petitioner's motion to stay 51 be denied. Motion to Stay 51 referred to Judge Morrison C. England Jr. Objections due within 14 days.(Plummer, M)

Case 2:16-cv-01884-MCE-GGH Document 56 Filed 02/05/21 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HOWARD FORBES,

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No. 2:16-cv-01884 MCE GGH P

Petitioner,

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v.

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L. ELDRIGDE,

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FINDINGS & RECOMMENDATIONS

Respondent.

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Pending before the court is petitioner’s motion to stay proceedings pursuant to Rhines v.

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Weber, 544 U.S. 269 (2005). ECF No. 51. Petitioner seeks to exhaust his state court remedies on

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a claim alleging due process violation based on his denied right to testify at trial. Id. Respondent

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has filed an opposition. ECF No. 52. Petitioner has filed a reply. ECF No. 55.

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A district court may properly stay a habeas petition and hold it in abeyance pursuant to

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Rhines v. Weber, 544 U.S. 269 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009).

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Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an

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unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Assuming the petition itself has

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been timely filed, such a stay “eliminates entirely any limitations issue with regard to the

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originally unexhausted claims, as the claims remain pending in federal court[.]” King, 564 F.3d at

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1140. However, to qualify for a stay under Rhines, a petitioner must: (1) show good cause for his

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failure to exhaust all his claims before filing this action; (2) explain and demonstrate how his
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Case 2:16-cv-01884-MCE-GGH Document 56 Filed 02/05/21 Page 2 of 4
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unexhausted claim is potentially meritorious; (3) describe the status of any pending state court

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proceedings on his unexhausted claim; and (4) explain how he has diligently pursued his

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unexhausted claim. Rhines, 544 U.S. at 277–78. What constitutes good cause has not been

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precisely defined except to indicate at the outer end that petitioner must not have engaged in

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purposeful dilatory tactics, Rhines, 544 U.S. at 277-78, and that “extraordinary circumstances”

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need not be found. Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 2005); see also Rhines, 544

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U.S. at 279 (Stevens, J., concurring) (the “good cause” requirement should not be read “to impose

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the sort of strict and inflexible requirement that would trap the unwary pro se prisoner”) (internal

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citation omitted); id. (Souter, J., concurring) (pro se habeas petitioners do not come well trained

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to address tricky exhaustion determinations). “But as the Jackson court recognized, we must

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interpret whether a petitioner has “good cause” for a failure to exhaust in light of the Supreme

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Court’s instruction in Rhines that the district court should only stay mixed petitions in ‘limited

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circumstances.’ We also must be mindful that AEDPA aims to encourage the finality of sentences

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and to encourage petitioners to exhaust their claims in state court before filing in federal court.”

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Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008), quoting Jackson, 425 F.3d at 661)

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(internal citations omitted).

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Petitioner contends he has satisfied the requirements set forth by Rhines entitling him to a

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stay of the proceedings. Petitioner argues he was prevented from raising his claim by his appellate

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counsel who refused to raise the issue during appeal proceedings. ECF Nos. 51 at 1-2.

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Nevertheless, petitioner argues his claim is “potentially meritorious to dispute state court fact

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findings for any presumption of correctness[.]” ECF No. 51 at 2. Petitioner further argues he is a

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layman in the law and this attempt to raise a new claim is not to intentionally delay proceedings.

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ECF Nos. 51 at 2; 55 at 2-3. Lastly, petitioner appears to raise his medical condition as another

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reason for his delay in exhausting his claim. ECF No. 55 at 1-2.

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Petitioner has not established grounds for a stay under Rhines. The Ninth Circuit has

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stated that “a reasonable excuse, supported by evidence to justify a petitioner’s failure to

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exhaust,” will demonstrate good cause under Rhines. Blake v. Baker, 745 F.3d 977, 982 (9th Cir.

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2014). Here, petitioner has failed to establish good cause for his failure to exhaust his claim.
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Petitioner first became aware of his claim at trial when he was prevented from testifying. Even

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assuming petitioner’s appellate counsel refused to raise his due process claim, petitioner was free

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to raise this claim in his state court habeas petitions, as well through his habeas petition in this

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court. Moreover, this court previously granted petitioner a stay in January of 2017 to exhaust his

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state court remedies on his unexhausted claims. See ECF Nos. 6, 12. Petitioner makes no

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legitimate excuse as to why his “right to testify” claim, which was obviously known to petitioner,

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was not included in his state exhaustion proceedings after 2017. Petitioner’s failure to raise this

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claim at various points in this action fails to establish neither good cause nor that petitioner was

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diligent in pursing his unexhausted claim. Moreover, petitioner’s flareups with Multiple Sclerosis

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in 2015 do not help in establishing that petitioner was diligent in exhausting his claim in 2016,

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2017, 2018, and 2019. Last of all, mere ignorance of the law fails to establish good cause. See

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Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (“To accept that a petitioner's

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‘impression’ that a claim had been included in an appellate brief constitutes ‘good cause’ would

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render stay-and-obey orders routine.” It would “run afoul of Rhines and its instruction that district

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courts should only stay mixed petitions in ‘limited circumstances.’”); see also Hughes v. Idaho

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State Board of Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (ignorance of the law does not

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constitute an excuse from due diligence). Based on these reasons, the undersigned recommends

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denying petitioner’s motion to stay the proceedings.

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Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion to stay (ECF
No. 51) be denied.

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

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

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

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

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

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

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

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

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Dated: February 4, 2021

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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