Perez v. Adams

Filing 24

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/11/2018 ORDERING, within 30 days, petitioner shall either request a Rhines stay or to elect dismissal of her petition. Failure to respond within the 30 day period shall result in a sua sponte dismissal by the court.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA D. PEREZ,

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No. 2:17-cv-01351-MCE-GGH
Petitioner,

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v.

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D. G. ADAMS,

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ORDER

Respondent.

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Petitioner proceeds in pro se and in forma pauperis in this habeas corpus action. On

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October 23, 2017 Respondent filed a Motion to Dismiss the petition in part based on the

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allegation that plaintiff had failed to exhaust her state remedies and that her petition was, as a

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result, subject to dismissal. ECF No. 14. On November 27, 2017 petitioner sought an extension

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of time for any further filing, ECF No. 20, which request was granted on November 30, 2017

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extending time for 60 days from the date of the Order for any further filing. ECF No. 21. On

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January 8, 2018 petitioner filed a motion to dismiss the petition insofar as she agrees she had

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failed to fully exhaust and was unaware of the requirement and therefore wished to withdraw her

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“claim” to allow her to exhaust. ECF No. 22. Respondent filed a Statement of Non-Opposition

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on January 10, 2018. ECF No. 23.

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The exhaustion requirement referred to is found in 28 U.S.C. 2254(b)(1) and calls for
petitioner to provide the highest state court with a full and fair opportunity to consider all claims
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before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 277 (1971);

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Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied 478 US. 1021 (1986).

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Petitioner should be aware that under Rhines v. Weber, 544 U.S. 269, 277 (2005) a district

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court may stay a petition to allow a petitioner to present an unexhausted claim or unexhausted

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claims to the state courts. Assuming the petition itself has time been filed in this court such a stay

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“eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the

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claims remain pending in federal court.” King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). A

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dismissal, such as petitioner has requested, will not, however, retard the statute of limitations on

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filing in his court and the result may be that when the petitioner seeks to return here with a new

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petition it may be subject to dismissal for untimely filing.

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To qualify for a stay under Rhines a petitioner must (1) show good cause for her failure to

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exhaust all her claims before filing this action; (2) explain and demonstrate how her unexhausted

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claims are potentially meritorious; (3) describe the status of any pending state court proceedings,

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if any there are on her unexhausted claims; and (4) explain how she has diligently pursued any

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such claims. Rhines, 544 U.S. at 277-278.

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What constitutes good cause has not been precisely defined except to indicate at the outer

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end that petitioner must not have engaged in purposeful dilatory tactics, Rhines, 544 U.S. at 277-

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78, and that “extraordinary circumstances” need not be found. Jackson v. Roe, 425 F.3d 654,

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661-662 (9th Cir. 2005); see also Rhines, 544 U.S. at 279 (Stevens, J., concurring) (the “good

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cause” requirement should not be read “to impose the sort of strict and inflexible requirement that

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would trap the unwary pro se prisoner”) (internal citation omitted); id. (Souter, J., concurring)

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(pro se habeas petitioners do not come well trained to address tricky exhaustion determinations).

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“But as the Jackson court recognized, we must interpret whether a petitioner has “good cause” for

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a failure to exhaust in light of the Supreme Court’s instruction in Rhines that the district court

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should only stay mixed petitions in ‘limited circumstances.’ We also must be mindful that

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AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their

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claims in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d 1019, 1023-24

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(9th Cir. 2008), quoting Jackson, 425 F.3d at 661) (internal citations omitted).
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Recently, the Ninth Circuit stated that “a reasonable excuse, supported by evidence to

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justify a petitioner’s failure to exhaust,” will demonstrate good cause under Rhines. Blake v.

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Baker, 745 F.3d 977, 982 (9th Cir. 2014). In Blake, the Ninth Circuit held that ineffective

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assistance of counsel by post-conviction counsel can be good cause for a Rhines stay, however,

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bare allegations of state post-conviction IAC do not suffice. Id. at 983. The Blake court

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concluded that petitioner satisfied the good cause standard where he argued that his post-

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conviction counsel “failed to conduct any independent investigation or retain experts in order to

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discover the facts underlying his trial-counsel IAC claim; namely, evidence that Blake was

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subject to outrageous and severe sexual, physical and emotional abuse as a child and suffered

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from organic brain damage and psychological disorders.” 745 F.3d at 982 (internal quotes

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omitted). The petitioner supported this argument with extensive evidence, including

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psychological evaluation reports, a declaration by the private investigator who worked briefly for

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his post-conviction attorney, and thirteen declarations from petitioner’s family and friends

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describing his “abhorrent” childhood conditions. Id. at 982-83. The Blake court concluded that

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the petitioner had met the Coleman/Martinez standard to show good cause under Rhines.” Id. at

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983-84 & n.7.

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If petitioner finds that she wishes to take advantage of the Rhines stay and abeyance

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procedure she should provide the court with a request for the stay that meets the pleading

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requirements laid out in this Order within 30 days of the date of this Order. If on the other hand

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she prefers to have the matter dismissed, she should notify the court of that decision within the

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same 30 day period and the dismissal will be effected.

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In light of the foregoing IT IS HEREBY ORDERED that:

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1.

Petitioner shall have 30 days from the date of this Order to either request a Rhines

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stay or to elect dismissal of her petition;

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2.

Failure to respond within the 30 day period shall result in a sua sponte dismissal

by the court.
IT IS SO ORDERED.
Dated: January 11, 2018
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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