Ledesma v. Ayers

Filing 28

ORDER GRANTING MOTION TO HOLD FEDERAL HABEAS PROCEEDINGS IN ABEYANCE AND DENYING MOTION TO DISMISS by Judge Phyllis J. Hamilton granting 24 Motion to Stay. (kcS, COURT STAFF) (Filed on 4/6/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FERMIN LEDESMA,

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Case No. 07-cv-02130-PJH

Petitioner,

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v.

RONALD DAVIS, Warden of San
Quentin State Prison,
Respondent.

ORDER GRANTING MOTION TO
HOLD FEDERAL HABEAS
PROCEEDINGS IN ABEYANCE AND
DENYING MOTION TO DISMISS
RE: DKT. NO. 24

United States District Court
Northern District of California

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INTRODUCTION
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Petitioner Fermin Ledesma, a condemned prisoner at California’s San Quentin
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State Prison, has filed a request to stay his federal habeas petition pending the
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completion of exhaustion proceedings in state court. Respondent opposes petitioner's
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motion and requests that the petition be dismissed. For the reasons outlined below,
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petitioner’s motion is GRANTED. Respondent’s request to dismiss the petition is
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DENIED.
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BACKGROUND
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Petitioner has been convicted and sentenced to death twice. Petitioner was
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initially convicted of first degree murder, kidnapping and robbery in Santa Clara County.
Special circumstance allegations of the intentional killing of a witness, felony-murder
robbery and felony-murder kidnapping were found true and petitioner was sentenced to
death in March 1980. Petitioner filed an appeal and a simultaneous state habeas
petition. The California Supreme Court consolidated the proceedings and issued a ruling
granting the habeas petition and vacating petitioner’s conviction on the grounds that he

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received ineffective assistance of counsel at trial. People v. Ledesma, 43 Cal. 3d 171

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(1987).

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On retrial, petitioner was once again convicted of first degree murder, kidnapping

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and two counts of robbery. The jury found true two special circumstances of intentional

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killing of a witness and murder in the commission of a robbery. Petitioner was sentenced

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to death on October 30, 1989. On direct appeal, the California Supreme Court reversed

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one of the robbery counts as well as the robbery special circumstance, but affirmed the

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conviction and death sentence. People v. Ledesma, 39 Cal. 4th 641 (2006). The United

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States Supreme Court denied certiorari on April 2, 2007. Ledesma v. California, 549 U.S.

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United States District Court
Northern District of California

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1324 (2007).
On October 31, 2006, petitioner filed a shell state habeas petition. (ECF Doc. No.

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15, Ex. D) The shell petition was filed before the California Supreme Court appointed

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counsel to represent petitioner in his state habeas proceedings. On December 20, 2007,

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the California Supreme Court appointed Terry J. Amdur as petitioner’s state habeas

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counsel.

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Petitioner filed a request for appointment of federal habeas counsel and stay of

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execution in this Court on April 17, 2007. This request was granted on May 1, 2007.

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(ECF Docket No. 3) His case was referred to the Selection Board for recommendation of

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counsel.

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With the assistance of counsel, Petitioner filed an amended state habeas petition

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on December 10, 2010. On July 15, 2015, the California Supreme Court denied this

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petition. An amended order denying the petition was entered on July 31, 2015.

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On December 11, 2015, the Court appointed counsel to represent petitioner in his

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federal habeas proceedings. Petitioner subsequently filed a request for equitable tolling,

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which was granted on May 17, 2016. (ECF Doc. No. 17) Petitioner filed a federal

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habeas petition on December 7, 2016. (ECF Doc. No. 18)

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On December 9, 2016, petitioner filed an exhaustion petition in state court. On

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that same day, he filed a motion to hold federal proceedings in abeyance pending the
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completion of state exhaustion proceedings. This motion was denied without prejudice

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because it was filed prior to the parties’ meet-and-confer period on exhaustion as

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required by Capital Habeas Corpus Local Rule 2254-29(b). Subsequent to the Court’s

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order, the parties met and conferred regarding the exhaustion status of petitioner’s

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claims. The parties now agree as to the exhaustion status of all claims.

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Petitioner renewed his request for a stay on March 5, 2017. (ECF Doc. No. 24)

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Respondent filed a response on March 13, 2017. (ECF Doc. No. 26) Petitioner filed a

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reply on March 16, 2017. (ECF Doc. No. 27)

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LEGAL STANDARD

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United States District Court
Northern District of California

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The Supreme Court follows a rule of “total exhaustion,” requiring that all claims in

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a habeas petition be exhausted before a federal court may grant the petition. Rose v.

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Lundy, 455 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed

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petition to allow a petitioner to exhaust his claims in state court without running afoul of

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the one-year statute limitations period for receiving federal habeas review imposed by the

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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Rhines v. Weber, 544

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U.S. 269, 273-75 (2005). A district court may stay a mixed petition if: 1) the petitioner

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has good cause for his failure to exhaust his claims, 2) the unexhausted claims are

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potentially meritorious, and 3) there is no indication that the petitioner intentionally

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engaged in dilatory tactics. Id. at 278.

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The Supreme Court has not articulated with precision what constitutes “good

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cause” for purposes of granting a stay under Rhines. In Pace v. Digugliemo, 544 U.S.

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408, 416 (2005), the Supreme Court stated that a “petitioner’s reasonable confusion

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about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him

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to file in federal court” without exhausting state remedies first. More recently, in Martinez

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v. Ryan, 132 S. Ct. 1309, 1315 (2012), the Supreme Court held that ineffective

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assistance of post-conviction counsel may constitute cause for overcoming procedural

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default.
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The Ninth Circuit has clarified that “good cause” for failure to exhaust does not

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require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir.

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2005). Nonetheless, the good cause requirement should be interpreted in light of the

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Supreme Court’s admonition that stays be granted only in “limited circumstances” so as

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not to undermine the AEDPA’s twin goals of reducing delays in the execution of criminal

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sentences, and streamlining federal habeas proceedings by increasing a petitioner’s

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incentive to exhaust all claims in state court. Wooten v. Kirkland, 540 F.3d 1019, 1024

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(9th Cir. 2008). A petitioner’s mistaken impression that his counsel included a claim in an

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appellate brief does not qualify as “good cause” for failure to exhaust as such an
allegation could be raised by any petitioner, rendering stay-and-abeyance orders routine.

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United States District Court
Northern District of California

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Id. More recently, in Blake v. Baker, 745 F. 3d 977, 983 (9th Cir. 2014), the Ninth Circuit

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held that “[ineffective assistance] by post-conviction counsel can be good cause for a

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Rhines stay,” finding that such a conclusion was consistent with and supported by

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Martinez.

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DISCUSSION

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Petitioner alleges that new evidence, new law, ineffective assistance of post-

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conviction counsel and California’s timeliness rules all constitute good cause for his

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failure to exhaust. Respondent disagrees, but concedes that petitioner’s unexhausted

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claims “may not be ‘plainly meritless’, and it does not appear that petitioner has engaged

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in abusive litigation tactics.” (ECF Doc. No. 26 at 7)

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As discussed below, California’s timeliness rules provide petitioner good cause for

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a stay under Rhines. The Court will not address petitioner’s other alleged bases for good

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cause.

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Petitioner alleges that because California's untimeliness rules are unclear, he is

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compelled by Pace to file a mixed petition to avoid risking the loss of his rights and

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remedies. In Pace, the United States Supreme Court discussed, albeit in dicta, the

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predicament a prisoner could face if he litigated in state court for years only to find out
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that his petition was untimely and therefore not “properly filed” and not entitled to

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statutory tolling under 28 U.S.C. § 2244(d)(2). 544 U.S. at 416. The Court stated a

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“prisoner seeking state postconviction relief might avoid this predicament, however, by

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filing a ‘protective’ petition in federal court and asking the federal court to stay and abey

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the federal habeas proceedings until state remedies are exhausted.” Id. citing Rhines,

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544 U.S. at 278. The Court in Pace went on to state that “[a] petitioner's reasonable

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confusion about whether a state filing would be timely will ordinarily constitute ‘good

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cause’ under Rhines for him to file in federal court.” Id.
Petitioner’s predicament is the type of situation referenced in Pace. If he were to

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raise his unexhausted claims in a successive habeas petition in state court before filing

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United States District Court
Northern District of California

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his federal petition, he would risk missing the AEDPA’s one-year limitation period if his

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claims are found to be untimely in state court. Petitioner safeguards against such an

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eventuality by filing his federal petition first and seeking the instant stay.

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Respondent argues that petitioner cannot reasonably harbor any confusion about

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whether his state filing will be timely because California’s discretionary untimeliness rules

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have been determined to be “adequate”, i.e. firmly established and regularly followed, by

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the United States Supreme Court in Walker v. Martin, 562 U.S. 307 (2011). Walker's

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holding, however, pertains to the doctrine of procedural default and does necessarily

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shed light on whether petitioner's exhaustion petition will, in fact, be deemed timely.

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Under Walker, discretionary rules like California's timeliness rules can still be deemed

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adequate. 562 U.S. 320; see also Prihoda v. McCaughtry, 910 F.2d 1379, 1385 (7th Cir.

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1990) (“[u]ncertainty is not enough to disqualify a state's procedural ground as one

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‘adequate’ under federal law”). Thus, in petitioner's case, the state court, could in its

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discretion, find petitioner’s exhaustion petition to be untimely.

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For the above-mentioned reasons, the Court finds that petitioner has
demonstrated good cause for a stay.

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CONCLU
USION

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For the above-me
e
entioned rea
asons, the Court find a follows:
as

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1) Pet
titioner’s mo
otion for a stay is GRA
s
ANTED;

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2) Res
spondent’s request to dismiss the petition is DENIED;
e
s

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3) Thirty days afte the entry of this Ord and eve 90 days thereafter until
er
y
der,
ery
s
r

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procee
edings in his state exha
s
austion cas are completed, peti
se
itioner shall serve and

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file a brief report updating the Court on the status of his pend
u
ding state h
habeas

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action. No later th 30 day after proc
han
ys
ceedings in his state c
n
case are co
ompleted,

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petition shall se
ner
erve and file notice tha proceedin are com
e
at
ngs
mpleted.

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United States District Court
Northern District of California

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S
RED.
IT IS SO ORDER
ated: April 6, 2017
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Da
__
__________
__________
__________
_______
PH
HYLLIS J. H
HAMILTON
Un
nited States District Ju
s
udge

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