Cherveny v. Arnold

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 03/01/18 ORDERING the clerk shall assign a District Judge to this case. Also, RECOMMENDING that Petitioners Motion for Stay and Abeyance be granted. Motion to Stay 5 referred to Judge Morrison C. England Jr. Objections due within 21 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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MICHAEL CHERVENY,

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Petitioner,

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FINDINGS AND RECOMMENDATIONS;
ORDER

v.

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No. 2:17-cv-02528 GGH

ERIC ARNOLD,

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Respondent.

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Petitioner, a state prisoner proceeding pro se and in forma pauperis, has filed a Motion to

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Stay the proceedings in this court pursuant to the decision of the United States Supreme Court in

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Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 5.

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Under Rhines, a district court may stay a petition to allow a petitioner to present

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unexhausted claims to the highest state court. Id. at 277. Assuming the petition has been timely

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filed, such a stay “eliminates entirely any limitations issue with regard to the originally

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unexhausted claims, as the claims remain pending in federal court[.]” King v. Ryan, 564 F.3d

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1133, 1135 (9th Cir. 2009). However, in order to qualify for a stay under Rhines, a petitioner

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must: (1) show good cause for his failure to exhaust all his claims before filing this action; (2)

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explain and demonstrate how his unexhausted claim is potentially meritorious; (3) describe the

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status of any pending state court proceedings on his unexhausted claim; and (4) explain how he

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has diligently pursued his unexhausted claim. Rhines 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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ends-- petitioner must not have engaged in purposefully dilatory tactics, id., and that

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“extraordinary circumstances” need not be found. Jackson v. Roe, 425 F.3d 654, 661-662 (9th

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Cir. 2005); see also Rhines at 279 (Stevens, J., concurring)(the “good cause” requirement should

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not be read “to impose the sort of strict and inflexible requirement that would trap the unwary pro

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se prisoner”)(internal citation omitted); Id. (Souter, J. concurring) (pro se habeas petitioners do

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not come well trained to address tricky exhaustion determinations). “But as the Jackson court

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recognized, we must interpret whether a petitioner has “good cause” for a failure to exhaust in

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light of the Supreme Court’s instruction in Rhines that the district court should only enter such a

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stay in “limited circumstances.” We must also be mindful that AEDPA aims to encourage the

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finality of sentences and to encourage petitioners to exhaust their claims in state court before

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filing in federal court.” Wooten v. Kirkland 540 F.3d 1019, 1023-1024 (9th Cir. 2008), quoting

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Jackson, 425 .3d at 661, (internal quotations omitted). The Ninth Circuit has stated that “a

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reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust,” will

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demonstrate “good cause” under Rhines. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014).

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In his petition, petitioner identifies four (4) unexhausted claims: (1) Improper denial of

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Marsden motion; (2) improper denial of motion to withdraw guilty plea; (3) breach of the plea

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agreement; and (4) ineffective assistance of counsel. Petitioner explains that he filed two habeas

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claims in the Superior Court and in the Third District Court of Appeals, the last of which was

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denied on September 28, 2017. ECF No. 5 at 2. The instant petition was filed in this court on

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December 1, 2017.

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On February 15, 2018, petitioner filed a Declaration filed to support his request, that the

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failure to proceed to the California Supreme Court with at least some of the claims in this federal

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petition resulted from the fact that he was dealing with two separate convictions and sentencings

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and believed he had included the instant matter in an earlier filing with the California Supreme

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Court. That court denied the petition and he then filed here in the federal court without realizing

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that the matter at issue now was not part of the earlier petition filed with the state court. He also

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asserts evidence of medical issues and his lack of legal training to explain the foregoing error.
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This is sufficient good cause.
In light of the foregoing the undersigned recommends petitioner’s motion for stay and
abeyance be granted.

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IT IS ORDERED that the Clerk shall assign a district judge to this case;

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IT IS THEREFORE RECOMMENDED that: Petitioner’s Motion for Stay and Abeyance

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be GRANTED.
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 twenty-one days

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after being served with these findings and recommendations, petitioner 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.” Petitioner is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 1, 2018

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/s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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