Tran v. Baughman

Filing 29

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 08/31/20 RECOMMENDING that petitioner's motion for stay 26 be denied. Motion to Stay 26 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICKY VAN TRAN,

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No. 2:17-cv-1925 JAM KJN P

Petitioner,

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v.

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FINDINGS AND RECOMMENDATIONS

DAVID BAUGHMAN,

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Respondent.

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

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challenging his 2012 conviction. On February 11, 2020, the undersigned recommended that the

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original petition be denied. On April 25, 2020, petitioner’s motions to amend1 and for stay were

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denied without prejudice. Petitioner has now renewed his motion to stay, and also filed a notice

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of exhaustion. As set forth below, petitioner’s motion for stay should be denied.

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Plaintiff’s Unexhausted Claim

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In his notice, petitioner claims that on May 11, 2020, petitioner filed his petition for writ

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of habeas corpus in the California Supreme Court. (ECF No. 27.) Petitioner states that he seeks

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If a new petition is filed when a previous habeas petition is still pending before the district court
without a decision having been rendered, then the new petition should be construed as a motion to
amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). The Woods
holding is not extended to a situation where the district court has ruled on the initial petition, and
proceedings have begun in the Court of Appeals. Beaty v. Schriro, 554 F.3d 780, 782-83 & n.1
(9th Cir. 2009), cert. denied, 130 S. Ct. 364 (2009).

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judicial review of the state appellate court’s decision on the claims raised in the instant petition,

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and will file his claim in this court following the California Supreme Court’s decision. (ECF No.

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27 at 1.) Petitioner did not provide any state court case numbers, copies of a petition filed in

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either the California Court of Appeal or the California Supreme Court, or a copy of the decision

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by the California Court of Appeal. In his motion for stay, petitioner identifies the unexhausted

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claim as his due process rights were violated when the jury’s special circumstances finding was

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unsupported by the evidence to prove beyond a reasonable doubt that petitioner was the actual

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shooter. (ECF No. 26 at 3.)

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Motion for Stay

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In his motion for stay, petitioner now seeks stay and abeyance under Rhines v. Weber,
544 U.S. 269 (2005). (ECF No. 26.) No opposition was filed by respondent.
A district court may, in limited circumstances, stay a mixed petition pending exhaustion of

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unexhausted claims if: (1) “the petitioner had good cause for his failure to exhaust;” (2) “his

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

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engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278; Mena v. Long, 813

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F.3d 907, 912 (9th Cir. 2016) (finding courts also have discretion to stay and hold in abeyance

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fully unexhausted petition under Rhines). Each of these three conditions must be satisfied

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because, as the court emphasized, “even if a petitioner had good cause for that failure, the district

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court would abuse its discretion if it were to grant him a stay when his unexhausted claims are

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plainly meritless.” Rhines, 544 U.S. at 277.

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“The case law concerning what constitutes ‘good cause’ under Rhines has not been

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developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v.

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Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good

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cause to excuse a petitioner’s failure to exhaust.”)) The Supreme Court has addressed the

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meaning of good cause only once, stating in dicta that “[a] petitioner’s reasonable confusion

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about whether a state filing would be timely will ordinarily constitute ‘good cause’” to excuse his

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failure to exhaust. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at

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278). The Ninth Circuit has provided limited guidance. Under Ninth Circuit law, the “good
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cause” test is less stringent than an ‘extraordinary circumstances’ standard. Jackson v. Roe, 425

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F.3d 654, 661-62 (9th Cir. 2005).

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Initially, petitioner attempts to argue that his unexhausted claim is contained in the instant

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petition, rendering it a mixed petition and requiring the court to grant petitioner leave to either

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return to state court to exhaust the unexhausted claim or abandon the unexhausted claim. (ECF

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No. 26 at 2.) Petitioner is mistaken. Petitioner raised four claims in the instant petition: two

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claims related to the alleged violation of petitioner’s right against self-incrimination (claims I and

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III); and his other two claims concerned the admission of evidence (claims II and IV). (ECF No.

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1.) Petitioner did not raise either a due process claim or an insufficiency of the evidence claim in

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the context of the special circumstances finding in the instant petition. (Id.) Indeed, petitioner

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affirmatively pled that he fully exhausted each of the four claims presented in the instant petition.

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(ECF No. 1 at 7-17.) Thus, the instant petition is not a mixed petition, but is fully exhausted.
In the April 30, 2020 order, the court addressed petitioner’s request for stay under Kelly v.

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Small, 315 F.3d 1063 (9th Cir. 2003), but also provided petitioner with the conditions he must

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meet in order to obtain a stay under Rhines. (ECF No. 25 at 2 n.2.) In the instant motion,

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petitioner failed to address each condition required under Rhines. Petitioner fails to demonstrate

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good cause for his failure to earlier exhaust his new claim. Indeed, he offers no explanation for

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his failure to include the claim in the instant petition. He argues that this “unexhausted claim is

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potentially meritorious because it raises a violation of his constitutional right to due process,”

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which is insufficient to demonstrate the claim’s merit. (ECF No. 26 at 3.) However, even if the

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court were to find petitioner had good cause (which it would not) to pursue a potentially

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meritorious insufficiency of the evidence claim, petitioner has utterly failed to demonstrate he did

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not engage in intentional dilatory litigation tactics. Because petitioner was aware of the facts

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surrounding the underlying crime, and whether or not petitioner was the actual shooter, petitioner

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fails to explain his failure to raise this claim earlier.

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But significantly, review of the state courts website reveals that no habeas petition has

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been filed by petitioner in the California Supreme Court on May 10, 2020, or any other date.2

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The court may take judicial notice of facts that are “not subject to reasonable dispute
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Rather, the website reflects only petitioner’s direct appeal, People v. Tran, S235100; the petition

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for review was denied by the California Supreme Court on July 13, 2016. Id. The search by

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petitioner’s name revealed no other filings by him in the California Supreme Court.

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Petitioner did file a petition for writ of habeas corpus in the California Court of Appeal, In

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re Ricky Tran on Habeas Corpus, No. C091450, which was denied on February 21, 2020. But

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when the appellate court case number C091450 is entered in the California Supreme Court

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website, which cross-references appellate court case numbers, no habeas case filing in the

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California Supreme Court by petitioner is found. Because petitioner has not filed his petition in

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the California Supreme Court, contrary to his statement, the undersigned cannot find that

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petitioner has not intentionally engaged in dilatory litigation tactics.

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Because petitioner fails to meet all three conditions required for a stay under Rhines, the

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motion for stay should be denied.

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Pending Findings and Recommendations

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Once the district court rules on the instant findings and recommendations, the undersigned

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will forward the February 11, 2020 findings and recommendations (ECF No. 19) to the district

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court for review.3
Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for stay (ECF

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No. 26) 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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because it . . . can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on
official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir.
2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v.
Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California
state courts is www.courts.ca.gov.

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Petitioner filed objections on March 23, 2020 (ECF No. 24); respondent did not file a reply.
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objections shall be served and filed 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: August 31, 2020

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/tran1925.sty.d

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