Ragan v. Ducart

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 10/30/2017 GRANTING 2 Motion to Proceed IFP, GRANTING 1 Motion for Stay and Abeyance, and DIRECTING Clerk of Court to administratively terminate this case. Petitioner to file a motion to life the stay in this court, within 30 days from the date the CA Supreme Court issues a final order resolving petitioner's unexhausted claims. (Henshaw, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL RAGAN, 12 Petitioner, 13 14 No. 2:17-cv-1924 KJN P v. ORDER C. DUCART, 15 Respondent. 16 17 I. Introduction Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 19 pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford the 21 costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28 22 U.S.C. § 1915(a). 23 Petitioner consented to proceed before the undersigned for all purposes. See 28 U.S.C. 24 § 636(c). Petitioner filed a motion for stay and abeyance of this action under Rhines v. Weber, 25 544 U.S. 269 (2005) (“Rhines”). (ECF No. 1 at 25.) As set forth below, petitioner’s motion is 26 granted. 27 //// 28 //// 1 1 II. Petitioner’s Arguments 2 Petitioner concedes that he has not exhausted six claims concerning ineffective assistance 3 of counsel which he alleges are presently pending in the California Court of Appeals for the Third 4 Appellate District. (ECF No. 1 at 14-15; 31.) Petitioner has exhausted his claims that the state 5 court’s finding that petitioner was ineligible for resentencing on counts 6 and 8 was not supported 6 by substantial evidence, and the order denying resentencing violated petitioner’s due process 7 rights. (ECF No. 1 at 13.) Petitioner now seeks to stay his habeas petition while he continues to 8 exhaust his six unexhausted claims. Petitioner states he will file in the California Supreme Court 9 as soon as the state appellate court issues its ruling. Petitioner avers that his delay in raising these 10 claims in state court was due to the ineffective assistance of counsel, who failed to raise the 11 claims on direct appeal. 12 III. Applicable Law 13 A federal district court may not address the merits of a petition for writ of habeas corpus 14 unless the petitioner has exhausted state court remedies with respect to each of his federal claims. 15 Rose v. Lundy, 455 U.S. 509 (1982); 28 U.S.C. § 2254(b)(1). Under Rhines, a district court may 16 stay a mixed petition if the following conditions are met: (1) “the petitioner had good cause for 17 his failure to exhaust,” (2) “his unexhausted claims are potentially meritorious,” and (3) “there is 18 no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id., 544 U.S. 19 at 278.1 The Supreme Court made clear that this option “should be available only in limited 20 circumstances.” Id. at 277. Moreover, a stay under Rhines may not be indefinite; reasonable 21 time limits must be imposed on a petitioner’s return to state court. Id. at 277-78. 22 23 24 25 26 27 28 1 A second procedure for staying mixed petitions, known as the “Kelly procedure,” outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), has been described by the Ninth Circuit Court of Appeals to involve the following three-step process: “(1) petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). The Kelly procedure is riskier than the Rhines procedure because it does not protect a petitioner’s unexhausted claims from expiring during a stay and becoming time-barred under the one year statute of limitations. See King, 564 F.3d at 1140-41. 2 1 IV. Discussion The instant petition is a “mixed petition,” containing both exhausted and unexhausted 2 3 claims.2 4 A. Good Cause 5 “The case law concerning what constitutes ‘good cause’ under Rhines has not been 6 developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v. 7 Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good 8 cause to excuse a petitioner’s failure to exhaust.”)) The Supreme Court has addressed the 9 meaning of good cause only once, stating in dicta that “[a] petitioner’s reasonable confusion 10 about whether a state filing would be timely will ordinarily constitute ‘good cause’” to excuse his 11 failure to exhaust. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 12 278). The Ninth Circuit has provided limited guidance. Under Ninth Circuit law, the “good 13 14 cause” test is less stringent than an ‘extraordinary circumstances’ standard. Jackson v. Roe, 425 15 F.3d 654, 661-62 (9th Cir. 2005). However, a petitioner cannot establish good cause simply by 16 alleging that he was “under the impression” that his claim was exhausted. Wooten v. Kirkland, 17 540 F.3d 1019 (9th Cir. 2008). Ineffective assistance of post-conviction counsel can constitute 18 good cause for a Rhines stay. Blake v. Baker, 745 F.3d at 983. The Ninth Circuit concluded that 19 the Rhines standard for cause based on ineffective assistance of counsel “cannot be any more 20 demanding” than the cause standard required to excuse the procedural default of a habeas claim, 21 as set forth in Martinez v. Ryan, 132 S. Ct. 1309 (2012). Blake, 745 F.3d at 983-84. Recently, 22 the Ninth Circuit held that a total absence of post-conviction counsel will constitute good cause. 23 Dixon, 847 F.3d at 721. 24 2 25 26 27 28 Petitioner appears to believe that he raised only exhausted claims in his petition because he states he will seek leave to amend once his unexhausted claims have been exhausted. (ECF No. 1 at 29.) However, the form petition contains his unexhausted claims, but in the appended handwritten pages, petitioner clearly sets forth both his exhausted claim, as well as his unexhausted claims. (ECF No. 1 at 13, 14-15.) Therefore, the instant petition is a mixed petition, containing all of his claims, and no further amendment is required following state court exhaustion. 3 1 Here, petitioner provides a copy of his state habeas petition filed in the California Court of 2 Appeals for the Third District that confirms petitioner is proceeding pro se in his state collateral 3 challenges. Under Dixon, the absence of post-conviction counsel is sufficient to establish good 4 cause for a stay under Rhines. See Dixon, 847 F.3d at 714, 721. 5 B. Potentially Meritorious Claims 6 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 7 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 F.3d at 722 (quoting 8 Rhines, 544 U.S. at 277). A claim is “plainly meritless” only if “it is perfectly clear that the 9 petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). A 10 petitioner satisfies this showing by presenting a “colorable” claim. Dixon, 847 F.3d at 722; Lucas 11 v. Davis, 2017 WL 1807907, at *9 (S.D. Cal. May 5, 2017) (citing Dixon and using the 12 “‘colorable claim’ standard to analyze whether a claim is ‘plainly meritless.’”). 13 Here, petitioner includes six unexhausted claims. (ECF No. 1 at 14-15.) Some of these 14 unexhausted claims are based on alleged errors in state sentencing and may lack merit.3 But 15 petitioner also alleges that defense counsel failed to investigate or call critical witnesses who 16 would testify as to whether petitioner was armed, depriving petitioner of a crucial defense. (ECF 17 No. 1 at 15.) In view of the limited record before the court at this stage of the proceedings, this 18 court cannot conclude that such claim is plainly without merit. A failure by trial counsel to 19 investigate and present mitigating evidence may constitute ineffective assistance of counsel. See 20 Rompilla v. Beard, 545 U.S. 374, 392-93 (2005); Wiggins v. Smith, 539 U.S. 510, 522-23 (2003); 21 Lord v. Wood, 184 F.3d 1083, 1093 (9th Cir. 1999) (“A lawyer who fails to investigate, and to 22 introduce into evidence, information that demonstrates his client’s factual innocence, or that 23 raises sufficient doubts as to that question to undermine confidence in the verdict, renders 24 deficient performance.”). If petitioner can prove such allegations, a court could find that his 25 constitutional rights were violated by ineffective assistance of counsel. Because such ineffective 26 3 27 28 A misapplication of a state’s sentencing law will violate due process only if the misapplication was arbitrary or fundamentally unfair. See Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994). “Absent a showing of fundamental unfairness, a state court’s misapplication of its own sentencing laws does not justify federal habeas relief.” Id. 4 1 assistance of counsel claim is “colorable,” see Cassett, 406 F.3d at 623-24, and not plainly 2 meritless, this prong of Rhines is satisfied.4 3 C. Intentionally Dilatory Tactics 4 Finally, as a third factor to consider, the Supreme Court stated that “if a petitioner engages 5 in abusive litigation tactics or intentional delay, the district court should not grant him a stay at 6 all.” Rhines, 544 U.S. at 278. 7 Here, there is no evidence of intentionally dilatory litigation tactics. Indeed, petitioner has 8 been diligently pursuing his state court remedies even while this action has been pending. This 9 court confirmed that petitioner filed a state habeas petition in the California Court of Appeal for 10 the Third Appellate District, in Case No. C085279.5 The petition was denied by the appellate 11 court on August 25, 2017. Id. On September 21, 2017, petitioner filed a new state petition in the 12 California Supreme Court, Case No. S244472. Thus, petitioner is expeditiously exhausting his 13 state court remedies as to the ineffective assistance of counsel claims. 14 V. Conclusion 15 For all of these reasons, petitioner’s motion for stay is granted. While the court grants 16 petitioner’s motion for stay, petitioner is cautioned that he must promptly seek to lift the stay once 17 the California Supreme Court addresses his petition. Rhines, 544 U.S. at 278 (District courts 18 must “place reasonable time limits on a petitioner’s trip to state court and back.”). Thus, 19 petitioner is directed to file a motion to lift the stay in this court, within thirty days from the date 20 the California Supreme Court issues a final order resolving his unexhausted claims. 21 Accordingly, IT IS HEREBY ORDERED that: 22 1. Petitioner is granted leave to proceed in forma pauperis; 23 2. Petitioner’s motion for stay and abeyance (ECF No. 1) is granted; 24 //// 25 //// 26 4 27 28 The discussion of the potential merit of petitioner’s unexhausted claims is not a determination of the merits of such claims. 5 California Courts, <http://appellatecases.courtinfo.ca.gov>, visited October 26, 2017. 5 1 3. Petitioner is directed to file a motion to lift the stay in this court, within thirty days 2 from the date the California Supreme Court issues a final order resolving petitioner’s unexhausted 3 claims; and 4 5 4. The Clerk of the Court is directed to administratively terminate this action. Dated: October 30, 2017 6 7 /raga1924.stay 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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