Moore v. Frauenheim
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/20/18 ORDERING the hearing on respondent's motion to dismiss, currently set for 1/23/19 is VACATED. Also, RECOMMENDING that petitioner's motion to st ay 3 be granted. Further, given that respondent's motion to dismiss is predicated entirely on the inclusion of unexhausted claims in the current petition 17 - the status of which the stay would potentially address - it is recommended that the motion be denied without prejudice. Motions 3 , 17 referred to Judge Morrison C. England Jr. 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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PAUL MOORE,
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No. 2:18-cv-1699-MCE-EFB P
Petitioner,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
SCOTT FRAUENHEIM,
Respondent.
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Petitioner, a state prisoner seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
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has filed a motion to stay the current proceedings in order to exhaust four claims in state court.
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ECF No. 3. Respondent has filed an opposition to the motion, ECF No. 21, and petitioner has
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filed a reply, ECF No. 22. For the reasons discussed below, the motion to stay should be granted.
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Petitioner requests a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Under
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Rhines, a district court may stay a ‘mixed’ petition in its entirety, without requiring dismissal of
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unexhausted claims while the petitioner attempts to exhaust them in state court. King v. Ryan,
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564 F.3d 1133, 1138-41 (9th Cir. 2009). Here, the petition is appropriately mixed insofar as it
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contains one fully exhausted claim and four that have not been exhausted. The four unexhausted
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claims are: (1) that petitioner’s trial counsel was ineffective in stipulating that the court reporter
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need not transcribe the court’s oral instructions to the jury; (2) that petitioner’s appellate counsel
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was ineffective for failing to raise a claim that an inadequate trial court record precluded adequate
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representation of petitioner on appeal; (3) that the trial court’s instructions to the jury relieved the
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prosecution of the burden of proving the identity of the killer beyond a reasonable doubt insofar
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as they indicated that petitioner’s “statements alone” could prove said identity; and (4) that
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appellate counsel was ineffective in failing to argue that the foregoing instruction was improper.
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ECF No. 3 at 3; ECF No. 17 at 5. The petition also contains an exhausted claim - that insufficient
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evidence supports petitioner’s first-degree murder conviction. ECF No. 17 at 5.
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Procedural Background
At a jury trial, petitioner was convicted of first degree murder on August 23, 2013. Lodg.
Doc. No. 1 at 1. He was sentenced to life without the possibility of parole on October 25, 2013.
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Id. at 1-2. He appealed and, on November 29, 2016, the Court of Appeal of the State of
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California, Third Appellate District, affirmed the trial court’s judgment. ECF No. 8-1 at 4. On
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January 1, 2017, petitioner sought review with the California Supreme Court. Lodg. Doc No. 2.
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That petition was denied on March 15, 2017. Lodg. Doc. No. 3.
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Petitioner’s family retained private counsel to represent him in post-conviction
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proceedings in late December of 2017. ECF No. 3 at 14. So represented, petitioner filed a state
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habeas petition with the California Superior Court, County of Colusa on June 4, 2018. Lodg.
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Doc. No. 4. Petitioner’s counsel states that the delay between retention and the filing of the
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petition is attributable to the need to review the four-thousand page trial record. ECF No. 3 at 14.
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Additionally, petitioner’s family did not affirmatively elect to pursue state and federal habeas
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proceedings until early May of 2018. Id. The habeas petition filed in the state superior court was
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denied on July 30, 2018. Lodg. Doc. No. 5.
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The instant federal petition was filed on June 8, 2018. ECF No. 2.
Analysis
To obtain a Rhines stay, a petitioner must show: (1) he had good cause for his previous
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failure to exhaust; (2) his unexhausted claims are potentially meritorious; and (3) there is no
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indication that he engaged in intentionally dilatory litigation tactics. 544 U.S. at 278; see also
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Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016). As an initial matter, the court finds that there is
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no indication in the record that either petitioner or his counsel has engaged in intentionally
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dilatory tactics. And the court cannot say that “it is perfectly clear” that the claims petitioner
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seeks to exhaust have no hope of prevailing if they were properly brought before this court. See
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Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (holding that “the principle of comity
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counsels in favor of a standard that limits a federal court’s ability to deny relief under
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§ 2254(b)(2) to circumstances in which it is perfectly clear that the petitioner has no hope of
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prevailing.”).1 Thus, whether to grant the Rhines stay petitioner seeks turns on whether he has
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shown good cause for his previous failure to exhaust.
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This circuit has found that the good cause requirement does not demand a showing of
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“extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005). In Blake v.
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Baker, this circuit instead held that “good cause turns on whether the petitioner can set forth a
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reasonable excuse, supported by sufficient evidence, to justify that failure [to exhaust].” 745 F.3d
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977, 982 (9th Cir. 2014). Here, the petition was filed for the legitimate purpose of “protecting”
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his claims insofar as he could not be certain whether his state filing would be timely and, thus,
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toll the federal statute of limitations. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A
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petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily
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constitute ‘good cause’ for him to file in federal court.”). As petitioner notes, California sets no
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exact deadline for habeas petitions and instead mandates only a petitioner file “without substantial
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delay.” See, e.g., In re Douglas, 200 Cal. App. 4th 236, 242-43 (2011).2 And petitioner’s
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diligence is emphasized by the fact that: (1) he filed his mixed, federal petition within the statute
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of limitations set forth by the Antiterrorism and Effective Death Penalty Act (AEDPA); and (2)
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he filed his state superior court petition before his federal petition. See Turner v. Ascuncion, No.
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2:18-cv-1071 AC P, 2018 U.S. Dist. LEXIS 168302, * 5 (E.D. Cal. Sept. 27, 2018) (good cause
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assessment supported by petitioner’s diligence in timely filing his federal habeas petition within
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At the very least, petitioner’s claim that the trial court relieved the prosecution of its
burden of proving his guilt beyond a reasonable doubt states a cognizable federal claim that is
potentially meritorious.
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Indeed, the superior court determined that his petition was untimely under California
law. Lodg. Doc. No. 5 at 2. Petitioner has since filed a petition with the California Court of
Appeal, where it remains pending. ECF No. 22 at 9.
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AEDPA’s time limit); Leonardos v. Buddress, No. 06-07769 JSW, 2007 U.S. Dist. LEXIS 32411,
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at *8-9 (N.D. Cal. Apr. 19, 2007) (the fact that unexhausted claims had already been filed in state
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court – which lessened chance of delay – weighed in favor of finding good cause).
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Conclusion
Accordingly, the hearing on respondent’s motion to dismiss, currently set for January 23,
2019, is VACATED.
Further, for the reasons stated above, it is RECOMMENDED that petitioner’s motion to
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stay (ECF No. 3) be GRANTED. Further, given that respondent’s motion to dismiss is predicated
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entirely on the inclusion of unexhausted claims in the current petition (ECF No. 17) – the status
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of which the stay would potentially address – it is recommended that the motion be DENIED
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without prejudice.
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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)(1). 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.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: December 20, 2018.
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