Clark v. Fisher

Filing 29

ORDER signed by Magistrate Judge Gregory G. Hollows on 9/3/2018 ORDERING the petition is DISMISSED with leave to amend, within 30 days, in conformity with the issues addressed in this order; and petitioner's 21 request for a stay and abeyance is DENIED without prejudice, subject to the completion of the filing of an Amended Petition together with a new Rhines motion which addresses the preconditions for the granting of such a motion. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAKE CLARK,

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No. 2:17-cv-02574-TLN-GGH
Petitioner,

ORDER

v.
RAYTHEL FISHER, JR., Warden,
Respondent.

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PROCEDURAL HISTORY
Petitioner, appearing pro se, filed his petition for writ on December 8, 2017. ECF No. 1.

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On December 27, 2017, the court granted petitioner in forma pauperis status. ECF No. 8.

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Respondent moved to dismiss the action in February 23, 2018 on the ground that it contained

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unexhausted claims and therefore could not proceed given the requirement for exhaustion found

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in 28 U.S.C. section 2254 (b)(1)(A). ECF No. 17. After receiving a 30 day extension of time to

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do so, ECF No. 23, respondent opposed the motion for stay and abeyance on July 10, 2018.

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There is no question that the exhaustion of state court remedies is a prerequisite to the granting of

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a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion requirement,

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a habeas petitioner challenging a state conviction must first attempt to present his claim in state

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court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O'Sullivan v. Boerckel, 526 U.S.

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838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts a full and fair

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opportunity to resolve federal constitutional claims before those claims are presented to the

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federal courts”). A petitioner satisfies the exhaustion requirement by providing the highest state

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court with a full and fair opportunity to consider all claims before presenting them to the federal

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court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th

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Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to exhaust, he must

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present his claims to the California Supreme Court on appeal in a petition for review or post-

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conviction in a petition for a writ of habeas corpus in which he adequately describes the federal

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Constitutional issue that he asserts was denied. See Gatlin v. Madding, 189 F.3d 882, 888 (9th

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Cir. 1999).

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Petitioner shows in his filings that he did file an appeal with the California Supreme Court

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but he does not describe the substance of the appeal. So it is not possible for the court to discern

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whether the claims now asserted in his federal habeas were presented to that court or not. Insofar

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as petitioner recognizes his need to exhaust, he appears to concede that he has not raised those

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claims at the state level. And, even assuming he did do so, he has not provided the factual

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underpinnings for the federal habeas claim.

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In response to the motion to dismiss, petitioner sought an extension of time to file a

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motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), ECF No. 19,

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which motion he filed on March 21, 2018. ECF No. 21. Respondent now opposes the

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petitioner’s motion for stay and abeyance on the ground that he has not shown sufficient cause for

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his failure to exhaust and he has not shown a sufficient likelihood of success on the merits of his

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petition. ECF No. 25.

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DISCUSSION

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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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end petitioner must not have engaged in purposefully dilatory tactics, id., and that “extraordinary

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circumstances” need not be found. Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 2005); see

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also Rhines at 279 (Stevens, J., concurring)(the “good cause” requirement should not be read “to

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impose the sort of strict and inflexible requirement that would trap the unwary pro se

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prisoner”)(internal citation omitted); Id. (Souter, J. concurring) (pro se habeas petitioners do not

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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).

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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). Unfortunately, petitioner at this point has failed to

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meet both of the overarching requirements discussed here.

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A.

Showing of Good Cause

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Petitioner includes the legal standards for his petition and his request for stay and

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abeyance, but states no facts to tie his claims to those standards. He enters the cryptic statement

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“see attached memorandum” on page 5 of his petition which purports to state ground one for his

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petition, but there is no memorandum attached. In fact, the only substantive attachment is the

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Third District Court of Appeal decision which is found at Exhibit A to the petition. ECF No. 1 at
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5. As to why he did not exhaust state remedies as to ground one of his petition he states only

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“N/A Did all processes to knowledge” and “petitioner contends jury instructions relate to the

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claims raised.” If this statement means to convey that he did not know exhaustion was required,

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his ultimate desire for stay and abeyance will fail, as will his petition itself, as lack of knowledge

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of the requirements underlying the writ is not “good cause.” The Ninth Circuit has made clear

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that good cause cannot be based on mere ignorance of the law because such a finding “would

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render stay-and-abeyance orders routine” and thus “would run afoul of Rhines and its instruction

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that district courts should only stay mixed petitions in “limited circumstances.” Wooten v.

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Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008); see also Hughes v. Idaho State Board of

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Corrections, 800 F.2d 905, 909 (9th Cir. 1986) (ignorance of the law does not constitute an excuse

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from failing to exercise due diligence). Thus, unless petitioner can state specific facts regarding

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his failure to exhaust beyond his claim he did all within his knowledge to meet the prefiling

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standard for habeas, his motion for stay and abeyance must fail on this ground alone.

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B.

Explanation and Demonstration of Potential Merits of Unexhausted Claims

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Petitioner implies that the core of his petition is a failure to properly instruct the jury

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either because his attorney provided insufficient representation in failing to seek instructions on

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various core issues, or because the court failed to sua sponte instruction while under a duty to do

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so. Again, however, petitioner states a premise for the petition, but he does not state any facts

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regarding what evidence was presented at the trial that would support the instructions he lists as

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that, having not been given to the jury, resulted in a denial of a fair trial as a matter of federal

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constitutional law. He fails this prong of the test for stay and abeyance, while at the same time

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failing to provide a creditable habeas petition in the first instance.

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C.

Status of Any Pending State Court Proceedings on Unexhausted Claims

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Petitioner does not claim that he has any pending state court proceedings at this stage nor

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does he assure the court that he is prepared to bring them. This is yet another flaw in petitioner’s

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pleadings at this stage of the litigation process.

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D.

Petitioner’s diligence

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Petitioner is silent with regard to any actions taken to move forward to pursue his

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unexhausted claims, thus the court has no choice but to assume that he has taken no such actions

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and that his request for stay and abeyance is either premature or wholly unmeritorious.

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E.

The Petition

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As stated above, the petition at issue is nearly devoid of facts. Petitioner claims that

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the errors that are amenable to correction through habeas corpus involve a claim of insufficient

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evidence to convict and the defective nature of the jury instructions in his case. He alleges that

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his attorney was insufficient for not insisting on certain instructions regarding accomplice

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liability, conspiracy, and aider/abettor liability, and that the attorney’s failure to do so created a

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duty for the court to sua sponte include those instruction. Again, however, petitioner identifies no

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facts presented in his defense at trial that would require the presentation of any such instructions

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or support his claim of insufficient evidence to convict in the first instance.

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Pro se pleadings are, however, held to a less stringent standard than those drafted by

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lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Pro se pleadings are construed liberally

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and may only be dismissed if it appears beyond doubt that the plaintiff can prove no set of facts in

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support of his claim which would entitle him to relief. Nordstrom v. Ryan, 762 F.3d 903, 908

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(9th Cir. 2014). A pro se litigant is entitled to notice of the deficiencies in the complaint and an

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opportunity to amend, unless the complaint’s deficiencies could not be cured by amendment. See

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Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Because it is not clear whether the

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petitioner can substantively state a claim in habeas now that it has been addressed in this Order,

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the court will dismiss the petition, and permit the petitioner to file an amended petition if he can

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do so given the standards set out in this Order as well as a claim for stay and abeyance.

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Petitioner is directed to specifically demonstrate that he has presented claims in an

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amended petition to the California Supreme Court, or that he has not done so.

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CONCLUSION

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In light of the foregoing IT IS HEREBY ORDERED that:

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The petition is DISMISSED with leave to amend in conformity with the issues
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addressed in this Order within 30 days of the Order’s service.
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Petitioner’s request for a stay and abeyance is DENIED without prejudice, subject

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to the completion of the filing of an Amended Petition together with a new Rhines motion which

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addresses the preconditions for the granting of such a motion.

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Dated: September 3, 2018

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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