Donias v. Fisher

Filing 33

ORDER signed by Magistrate Judge Dennis M. Cota on 3/13/2019 DENYING Petitioner's 27 motion for a stay-and-abeyance order. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARC ANTHONY DONIAS,

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Petitioner,

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No. 2:16-CV-2674-DMC

v.

ORDER

RAYTHEL FISHER,

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Respondent.

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Petitioner, a state prisoner proceeding pro se brings this petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to the written consent of all parties, this

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case is before the undersigned as the presiding judge for all purposes, including entry of final

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judgment. See 28 U.S.C. § 636(c). Pending before this Court is Petitioner’s motion to stay and

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hold further proceedings in abeyance (ECF No. 27) filed on April 2, 2018. Petitioner seeks a

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stay in order to exhaust claims in state court and “bring them forth Federally.”

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I. HABEAS PETITION AND MOTION TO STAY

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The petition in this case raises a multitude of issues, none of which are entirely

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clear. This Court’s initial review of the petition finds no less than ten claims related to

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ineffective assistance of counsel, a claim related to jury tampering, claims related to new

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evidence, and a constitutional challenge to California Propositions 8 and 115, among others.
Petitioner’s stay motion is even less clear. Petitioner’s motion asserts that he seeks

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to “perfect federal habeas claims relevant to unexhausted claims pending in state court” but fails

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to identify the claims. It is also unclear if Petitioner wishes to exhaust issues that are unexhausted

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in this petition, or if he wishes to exhaust issues that are not in this petition but can be added to

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the petition via amendment after exhaustion.

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II. GOVERNING LEGAL PRINCIPLES

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Habeas petitioners are required to exhaust state remedies before seeking relief in

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federal court. 28 U.S.C. § 2254(b). The exhaustion doctrine ensures that state courts will have a

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meaningful opportunity to consider allegations of constitutional violation without interference

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from the federal judiciary. Rose v. Lundy, 455 U.S. 509, 515 (1982). Exhaustion requires fair

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presentation of the substance of a federal claim to the state courts. Picard v. Connor, 404 U.S.

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270, 276 (1971). In order to exhaust state remedies, a federal claim must be presented to the

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state's highest court, which is the California Supreme Court. Castille v. Peoples, 489 U.S. 346

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(1989).

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When a stay-and-abeyance motion is filed, the analysis depends on whether the

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petition is mixed or fully exhausted. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). If

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the petitioner seeks a stay-and-abeyance order as to a mixed petition containing both exhausted

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and unexhausted claims, the request is analyzed under the standard announced by the Supreme

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Court in Rhines v. Weber, 544 U.S. 269 (2005). See Jackson, 425 F.3d at 661. If, however, the

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petition currently on file is fully exhausted, and what petitioner seeks is a stay-and-abeyance

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order to exhaust claims not raised in the current federal petition, the analysis discussed in Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2003) overruled on other grounds by Robbins v. Carey, 481 F.3d
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1143, applies. See Jackson, 425 F.3d at 661.
Under Rhines, “stay and abeyance [is] available only in limited

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circumstances,” and only when: (1) there is “good cause” for the failure to exhaust; (2) the

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“unexhausted claims are potentially meritorious”; and (3) “there is no indication that the

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petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at 277–78. “There is little

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authority on what constitutes good cause to excuse a petitioner's failure to exhaust”

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under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court has

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addressed the issue only once, when it noted that a ‘petitioner's reasonable confusion about

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whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in

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federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)). The Ninth Circuit

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has “held that good cause under Rhines does not require a showing of ‘extraordinary

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circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the

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impression’ that his claim was exhausted.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir.

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2017) (quoting Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005); and Wooten v. Kirkland,

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540 F.3d 1019, 1024 (9th Cir. 2008)). “While a bald assertion cannot amount to a showing of

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good cause, a reasonable excuse, supported by evidence to justify a petitioner's failure to exhaust,

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will.” Blake, 745 F.3d at 982.

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Under the Kelly procedure, the district court may stay a petition containing only

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exhausted claims and hold it in abeyance pending the exhaustion of additional claims. Kelly, 315

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F.3d at 1070-71; King, 564 F.3d at 1135. Once the additional claims have been exhausted, the

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petitioner may then amend his federal habeas petition, adding them to the original petition, as

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long as the claims are not time-barred. King, 564 F.3d at 1135, 1140-41. Unlike the procedure

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created by Rhines, a Kelly stay “does not require that a petitioner show good cause for his failure

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to exhaust state court remedies.” Id. at 1135. However, a petitioner's use of the procedure

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outlined in Kelly is subject to the requirement of Mayle v. Felix, 545 U.S. 644 (2005), that any

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newly exhausted claims a petitioner seeks to add to a pending federal habeas petition must be

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timely or relate back to claims contained in the original petition that were exhausted at the time of

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filing. King, 564 F.3d at 1143.
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III. ANALYSIS
Petitioner’s motion cites to Rhines v. Weber for the basis of the requested stay,

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which indicates that Petitioner believes he has filed a mixed petition containing both exhausted

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and unexhausted claims. However, the language of the motion itself, which states that the stay is

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necessary to “perfect federal habeas claims relevant to unexhausted claims pending in state court”

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and that “Petitioner has raised claims of ineffective assistance of counsel and issues of evidence

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raised within said claims are addressed under prosecutorial misconduct in the lower state courts in

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order to exhaust claims and bring forth federally” indicate that the petition is fully exhausted but

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Petitioner wishes to exhaust additional relevant claims in state court and add them via amendment

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to the current petition. If the latter is true, a Rhines stay would be inappropriate and Petitioner

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instead should seek a stay under Kelly v. Small. However, because Petitioner’s motion is filed

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under Rhines, this Court will analyze the motion under the Rhines standard.
Turning first to the good cause requirement. Petitioner’s motion has failed to

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demonstrate good cause. The motion provides no factual support for the stay and fails to even

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identify which issues Petitioner believes are exhausted and which issues Petitioner believes are

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unexhausted. For that reason, it is impossible for this court to determine if good cause exists

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because the Court has no indicia as to the claims Petitioner seeks to exhaust. It necessarily

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follows that Petitioner’s motion fails to establish the “potentially meritorious” requirement. It is

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impossible for this Court to determine if the unexhausted claims are potentially meritorious if the

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Court does not know what the unexhausted claims are. Finally, Petitioner has satisfied the third

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requirement of Rhines, as there is no indication that Petitioner has engaged in intentionally

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dilatory litigation tactics in this case. However, because Petitioner has failed to satisfy the first

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two requirements for a Rhines stay, this Court cannot grant Petitioner a stay.

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IV. CONCLUSION
Accordingly, IT IS HEREBY ORDERED that Petitioner’s motions for a stay-andabeyance order (ECF No. 27) is DENIED.

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Dated: March 13, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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