Barragan v. Sullivan

Filing 6

Order by Magistrate Judge Nandor J. Vadas granting 2 Motion to Stay.(njvlc1, COURT STAFF) (Filed on 5/1/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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JAVIER BARRAGAN,

Case No. 17-cv-00776-NJV

Petitioner,
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ORDER GRANTING MOTION FOR
STAY AND ABEYANCE

v.
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WARDEN WILLIAM SULLIVAN,

Re: Dkt. No. 2

United States District Court
Northern District of California

Respondent.
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Petitioner, who has consented to magistrate judge jurisdiction, has filed a motion to stay

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this petition to exhaust an unexhausted claim not contained in the present petition. (Doc. 2.)

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Petitioner states that since his case became final, the California Supreme Court decided People v.

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Sanchez, 63 Cal. 4th 665, wherein the court held that where “case-specific” statements were

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related by a prosecution’s gang expert, presenting them as true statements of facts without

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independent proof, they would be treated as hearsay requiring compliance with state evidence

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rules and if the statements were made to the police, they would also be "testimonial hearsay"

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subject to the Sixth Amendment confrontation clause. Sanchez defined case-specific facts as

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“those relating to the particular events and participants alleged to have been involved in the case

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being tried.” (Id. at p. 676.)

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Petitioner claims that here, prosecution expert Chris Gridley testified extensively regarding

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case specific hearsay, including petitioner’s prior juvenile adjudication for attempted murder.

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Petitioner contends that the admission of this testimony violated his Sixth Amendment right to

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counsel. Petitioner explains that because Sanchez was decided after petitioner’s case became

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final, the issue was not previously raised in state court.

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The United States Supreme Court has held that a district court may stay mixed habeas

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petitions to allow the petitioner to exhaust in state court. Rhines v. Weber, 544 U.S. 269, 277-78

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(2005). A district court also has the discretion to stay a petition containing only unexhausted

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claims under the circumstances set forth in Rhines. Mena v. Long, 813 F.3d 907, 909 (9th Cir.

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2016). Because the use of a stay and abeyance procedure has the potential to undermine these

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dual purposes of AEDPA, its use is only appropriate where the district court has first determined

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that there was good cause for the petitioner’s failure to exhaust the claims in state court and that

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the claims are potentially meritorious. Id. Moreover, where granting a stay, the district court must

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effectuate the timeliness concerns in AEDPA by placing “reasonable limits on a petitioner’s trip to

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United States District Court
Northern District of California

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state court and back.” Id. at 278.2
Rhines requires a showing of “good cause.” Dixon v. Baker, No. 14-16644, slip op. at 10

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(9th Cir. Feb. 2, 2017). While this is a lesser standard than “extraordinary circumstances,” a

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petitioner “must do more than simply assert that he was ‘under the impression’ that his claim was

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exhausted.” Id. (quoting Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)).

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“The caselaw concerning what constitutes ‘good cause’ under Rhines has not been developed in

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great detail.” Id. “The Supreme Court has addressed the issue only once, when it noted that 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.’” Id. (quoting Pace v. DiGuglielmo, 544

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U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 278)). “Other circuits have found good cause

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when, for example, the prosecution has wrongfully withheld information.” Id. (citing Jalowiec v.

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Bradshaw, 657 F.3d 293, 304-05 (6th Cir. 2011)).

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“A petitioner has been found to demonstrate ‘good cause’ where he meets the good-cause

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standard announced in Martinez v. Ryan, 132 S. Ct. 1309, 1320 (2012).” Blake v. Baker, 745 F.3d

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977, 984 (9th Cir. 2014). Therefore, good cause under Rhines when based on ineffective

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assistance of counsel is not any more demanding than the cause standard articulated in Martinez,

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to excuse state procedural default. Blake, 745 F.3d at 984. An assertion of good cause turns on

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whether the petitioner can set forth a reasonable excuse supported by sufficient evidence to justify

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the failure to exhaust. See id. at 983-84 (reversing denial of stay when petitioner supported his
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good cause argument with evidence including a neuropsychological and psychological evaluation

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and many declarations); see also Wooten, 540 F.3d at 1024 (upholding denial of stay because

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petitioner’s incorrect “impression” that counsel had raised claims to the California Supreme Court

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on direct appeal did not establish good cause under Rhines for failure to exhaust claims earlier.)

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Here, the court finds that Petitioner has demonstrated good cause for failure to exhaust his

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claim before filing this petition because Sanchez, the case on which he relies, was decided after

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Petitioner’s case became final. The court further finds that Petitioner's claim is potentially

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meritorious.

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Accordingly, Petitioner's motion for stay and abeyance is HEREBY GRANTED.
Petitioner SHALL FILE his unexhausted claim in state court within thirty days, and file a notice in

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United States District Court
Northern District of California

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this court within thirty days of a final decision by the state courts on that claim. See Kelly, 315

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F.3d at 1070.

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IT IS SO ORDERED.
Dated: May 1, 2017
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NANDOR J. VADAS
United States Magistrate Judge

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