Arismendez v. Muniz

Filing 13

ORDER to SHOW CAUSE signed by Magistrate Judge Carolyn K. Delaney on 12/4/2017 ORDERING, within 21 days, petitioner shall notify this court whether: (a) he intends to pursue habeas corpus relief in the Yolo County Superior Court by filing a no tice of voluntary dismissal in this court; or, (b) he intends to pursue federal habeas corpus relief by filing an amended 28 U.S.C. § 2254 petition along with a motion for a stay and abeyance; the Clerk shall send petitioner a form 28 U.S.C. § 2254 petition along with a copy of this order.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROLANDO ARISMENDEZ,

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Petitioner,

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v.

No. 2:17-cv-0792 MCE CKD P

ORDER TO SHOW CAUSE

M.L. MUNIZ,

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Respondent.

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

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pursuant to 28 U.S.C. § 2254. Currently pending before the court is respondent’s motion to

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dismiss the petition on the basis that it was not signed or verified by the petitioner. ECF No. 12.

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I.

Factual Background

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Petitioner was convicted following a jury trial in the Yolo County Superior Court of

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conspiracy to commit attempted murder, attempted premeditated murder, criminal street gang

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activity, possession of a firearm by a person previously convicted of criminal street gang activity,

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being a felon in possession of a firearm, and a separate count of being a felon in possession of

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ammunition. He was sentenced to an indeterminate prison term of 7 years to life, a 20 year

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firearm enhancement, and a separate determinate prison term of 9 years.

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II.

Procedural Background
Following his conviction, petitioner filed a direct appeal in the California Court of Appeal

which affirmed his convictions and sentence on November 3, 2015. The California Supreme
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Court denied his petition for review on January 13, 2016. A search of the California state courts

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case information database revealed no subsequent state habeas corpus petitions filed by petitioner.

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III.

Analysis

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In resolving the pending motion to dismiss, the undersigned has reviewed the record and

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concluded that the absence of a signature is the least of petitioner’s problems in pursuing federal

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habeas relief. In his purported federal habeas application, petitioner completed the second, fifth,

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and sixth pages of the state habeas corpus form approved for use by the Judicial Council of

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California and attached a hand-written petition and memorandum of points and authorities in

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support of the petition. ECF No. 1 at 1-41. However, none of these documents are signed by

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petitioner. Also attached to the petition is a copy of the direct appeal decision by the California

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Court of Appeal. Id. at 45-71. From the face of the petition, it appears as though the instant

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action was intended to be filed in the Yolo County Superior Court. See ECF No. 1 at 1.

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Based on a review of the documents attached to the petition, it appears that petitioner has

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properly exhausted his sufficiency challenges to the evidence raised on direct appeal before the

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California state courts. However, it appears that petitioner seeks to present an additional

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confrontation clause challenge to the use of expert gang testimony during his trial. This claim has

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not yet been exhausted in state court. Therefore, if petitioner intended to file the instant petition

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before this court, he has filed a mixed petition which contains both exhausted and unexhausted

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claims for relief. In this circumstance, a stay and abeyance of the federal court action may be

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appropriate while petitioner properly exhausts the confrontation clause challenge in state court.

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Petitioner is advised that a federal court may stay a habeas petition and hold it in abeyance

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pursuant to either Rhines v. Weber, 544 U.S. 269 (1995), or King v. Ryan, 564 F.3d 1133, 1135

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(9th Cir. 2009) (citing three-step procedure of Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003)).

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Kelly and Rhines set out different procedures and impose different requirements for obtaining a

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stay. Under Rhines, 544 U.S. at 277-78, a federal habeas petition may be stayed only if (1)

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petitioner demonstrates good cause for the failure to have first exhausted the claims in state court,

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(2) the claim or claims at issue potentially have merit, and (3) petitioner has not been dilatory in

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pursuing the litigation. See also Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016) (extending
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the Rhines stay and abeyance procedure to federal habeas petitions that are wholly unexhausted).

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Under Kelly, the court may stay a petition containing only exhausted claims while allowing the

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petitioner to proceed to state court to exhaust additional claims. King v. Ryan, 564 F.3d at 1135

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(citing Kelly, 315 F.3d at 1070-71). Once the additional claims have been exhausted, the

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petitioner may then amend his petition to add them to the original petition if they are not time-

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barred. Id. at 1135, 1140-41. The court may deny a request for stay under Kelly if the new

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claims would clearly be barred by the federal statute of limitations upon exhaustion. See id. at

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1141.

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If petitioner elects to proceed with the current federal action, petitioner may file an

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amended 28 U.S.C. § 2254 petition along with a motion for a stay and abeyance setting forth

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which claims have been exhausted and which he seeks to exhaust. Petitioner must also specify

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whether he seeks a stay pursuant to Rhines or Kelly. If petitioner elects to pursue a Rhines stay,

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he must demonstrate how he meets the requirements identified above for such a stay. By

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selecting this option, petitioner may hold his federal action in abeyance while exhausting state

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habeas corpus relief.

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If petitioner intended to file the present action in the Yolo County Superior Court,

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petitioner may file a notice of voluntary dismissal in this court. Petitioner is further advised that

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any request to voluntarily dismiss the present habeas corpus action may preclude the federal court

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from reviewing any claims in a subsequently filed petition due to the one year statute of

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limitations of the AEDPA. See 28 U.S.C. § 2244(d)(1).

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IV.

Plain Language Summary for Pro Se Petitioner

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Since you are acting as your own attorney in this case, the court wants to make sure that you

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understand this order. The following information is meant to explain this order in plain English

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and is not intended as legal advice.

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The court has identified several potential problems with the petition that you filed in April

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2017. First, you need to let this court know whether you intended to file this petition in the Yolo

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County Superior Court, where your trial was held, or if you want to proceed in federal court. This

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court cannot forward a copy of the petition to be filed directly with the Yolo County Superior
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Court.
If you choose to dismiss the pending federal case and file a habeas corpus petition in the Yolo

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County Superior Court, there is no guarantee that any of the claims you present in a subsequent

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federal habeas petition could be reviewed on the merits due to a one year statute of limitations.

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If you intended to file the petition in federal court, you have a second option available. You

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may choose to file an amended federal habeas corpus petition which is signed under penalty of

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perjury. The court will then review this amended federal habeas petition, but it can only resolve

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claims that have been previously raised and presented in state court. If you have not raised all of

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your legal claims in state court then you may also file a motion to stay the amended federal

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habeas petition.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Within 21 days from the date of this order, petitioner shall notify this court whether: a)

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he intends to pursue habeas corpus relief in the Yolo County Superior Court by filing a notice of

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voluntary dismissal in this court; or, b) he intends to pursue federal habeas corpus relief by filing

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an amended 28 U.S.C. § 2254 petition along with a motion for a stay and abeyance;

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2. The Clerk of Court is directed to send petitioner a form 28 U.S.C. § 2254 petition along

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with a copy of this order.

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Dated: December 4, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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12/aris0792.osc.docx

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