Ledesma v. Ayers

Filing 28


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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 FERMIN LEDESMA, 8 9 10 Case No. 07-cv-02130-PJH Petitioner, 7 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 11 12 INTRODUCTION 13 Petitioner Fermin Ledesma, a condemned prisoner at California’s San Quentin 14 State Prison, has filed a request to stay his federal habeas petition pending the 15 completion of exhaustion proceedings in state court. Respondent opposes petitioner's 16 motion and requests that the petition be dismissed. For the reasons outlined below, 17 petitioner’s motion is GRANTED. Respondent’s request to dismiss the petition is 18 DENIED. 19 20 BACKGROUND 21 Petitioner has been convicted and sentenced to death twice. Petitioner was 22 23 24 25 26 27 28 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 1 received ineffective assistance of counsel at trial. People v. Ledesma, 43 Cal. 3d 171 2 (1987). 3 On retrial, petitioner was once again convicted of first degree murder, kidnapping 4 and two counts of robbery. The jury found true two special circumstances of intentional 5 killing of a witness and murder in the commission of a robbery. Petitioner was sentenced 6 to death on October 30, 1989. On direct appeal, the California Supreme Court reversed 7 one of the robbery counts as well as the robbery special circumstance, but affirmed the 8 conviction and death sentence. People v. Ledesma, 39 Cal. 4th 641 (2006). The United 9 States Supreme Court denied certiorari on April 2, 2007. Ledesma v. California, 549 U.S. 10 United States District Court Northern District of California 11 1324 (2007). On October 31, 2006, petitioner filed a shell state habeas petition. (ECF Doc. No. 12 15, Ex. D) The shell petition was filed before the California Supreme Court appointed 13 counsel to represent petitioner in his state habeas proceedings. On December 20, 2007, 14 the California Supreme Court appointed Terry J. Amdur as petitioner’s state habeas 15 counsel. 16 Petitioner filed a request for appointment of federal habeas counsel and stay of 17 execution in this Court on April 17, 2007. This request was granted on May 1, 2007. 18 (ECF Docket No. 3) His case was referred to the Selection Board for recommendation of 19 counsel. 20 With the assistance of counsel, Petitioner filed an amended state habeas petition 21 on December 10, 2010. On July 15, 2015, the California Supreme Court denied this 22 petition. An amended order denying the petition was entered on July 31, 2015. 23 On December 11, 2015, the Court appointed counsel to represent petitioner in his 24 federal habeas proceedings. Petitioner subsequently filed a request for equitable tolling, 25 which was granted on May 17, 2016. (ECF Doc. No. 17) Petitioner filed a federal 26 habeas petition on December 7, 2016. (ECF Doc. No. 18) 27 On December 9, 2016, petitioner filed an exhaustion petition in state court. On 28 that same day, he filed a motion to hold federal proceedings in abeyance pending the 2 1 completion of state exhaustion proceedings. This motion was denied without prejudice 2 because it was filed prior to the parties’ meet-and-confer period on exhaustion as 3 required by Capital Habeas Corpus Local Rule 2254-29(b). Subsequent to the Court’s 4 order, the parties met and conferred regarding the exhaustion status of petitioner’s 5 claims. The parties now agree as to the exhaustion status of all claims. 6 Petitioner renewed his request for a stay on March 5, 2017. (ECF Doc. No. 24) 7 Respondent filed a response on March 13, 2017. (ECF Doc. No. 26) Petitioner filed a 8 reply on March 16, 2017. (ECF Doc. No. 27) 9 LEGAL STANDARD 10 United States District Court Northern District of California 11 The Supreme Court follows a rule of “total exhaustion,” requiring that all claims in 12 a habeas petition be exhausted before a federal court may grant the petition. Rose v. 13 Lundy, 455 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed 14 petition to allow a petitioner to exhaust his claims in state court without running afoul of 15 the one-year statute limitations period for receiving federal habeas review imposed by the 16 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Rhines v. Weber, 544 17 U.S. 269, 273-75 (2005). A district court may stay a mixed petition if: 1) the petitioner 18 has good cause for his failure to exhaust his claims, 2) the unexhausted claims are 19 potentially meritorious, and 3) there is no indication that the petitioner intentionally 20 engaged in dilatory tactics. Id. at 278. 21 The Supreme Court has not articulated with precision what constitutes “good 22 cause” for purposes of granting a stay under Rhines. In Pace v. Digugliemo, 544 U.S. 23 408, 416 (2005), the Supreme Court stated that a “petitioner’s reasonable confusion 24 about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him 25 to file in federal court” without exhausting state remedies first. More recently, in Martinez 26 v. Ryan, 132 S. Ct. 1309, 1315 (2012), the Supreme Court held that ineffective 27 assistance of post-conviction counsel may constitute cause for overcoming procedural 28 default. 3 The Ninth Circuit has clarified that “good cause” for failure to exhaust does not 1 2 require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 3 2005). Nonetheless, the good cause requirement should be interpreted in light of the 4 Supreme Court’s admonition that stays be granted only in “limited circumstances” so as 5 not to undermine the AEDPA’s twin goals of reducing delays in the execution of criminal 6 sentences, and streamlining federal habeas proceedings by increasing a petitioner’s 7 incentive to exhaust all claims in state court. Wooten v. Kirkland, 540 F.3d 1019, 1024 8 (9th Cir. 2008). A petitioner’s mistaken impression that his counsel included a claim in an 9 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. 11 United States District Court Northern District of California 10 Id. More recently, in Blake v. Baker, 745 F. 3d 977, 983 (9th Cir. 2014), the Ninth Circuit 12 held that “[ineffective assistance] by post-conviction counsel can be good cause for a 13 Rhines stay,” finding that such a conclusion was consistent with and supported by 14 Martinez. 15 16 DISCUSSION 17 Petitioner alleges that new evidence, new law, ineffective assistance of post- 18 conviction counsel and California’s timeliness rules all constitute good cause for his 19 failure to exhaust. Respondent disagrees, but concedes that petitioner’s unexhausted 20 claims “may not be ‘plainly meritless’, and it does not appear that petitioner has engaged 21 in abusive litigation tactics.” (ECF Doc. No. 26 at 7) 22 As discussed below, California’s timeliness rules provide petitioner good cause for 23 a stay under Rhines. The Court will not address petitioner’s other alleged bases for good 24 cause. 25 Petitioner alleges that because California's untimeliness rules are unclear, he is 26 compelled by Pace to file a mixed petition to avoid risking the loss of his rights and 27 remedies. In Pace, the United States Supreme Court discussed, albeit in dicta, the 28 predicament a prisoner could face if he litigated in state court for years only to find out 4 1 that his petition was untimely and therefore not “properly filed” and not entitled to 2 statutory tolling under 28 U.S.C. § 2244(d)(2). 544 U.S. at 416. The Court stated a 3 “prisoner seeking state postconviction relief might avoid this predicament, however, by 4 filing a ‘protective’ petition in federal court and asking the federal court to stay and abey 5 the federal habeas proceedings until state remedies are exhausted.” Id. citing Rhines, 6 544 U.S. at 278. The Court in Pace went on to state that “[a] petitioner's reasonable 7 confusion about whether a state filing would be timely will ordinarily constitute ‘good 8 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 10 raise his unexhausted claims in a successive habeas petition in state court before filing 11 United States District Court Northern District of California 9 his federal petition, he would risk missing the AEDPA’s one-year limitation period if his 12 claims are found to be untimely in state court. Petitioner safeguards against such an 13 eventuality by filing his federal petition first and seeking the instant stay. 14 Respondent argues that petitioner cannot reasonably harbor any confusion about 15 whether his state filing will be timely because California’s discretionary untimeliness rules 16 have been determined to be “adequate”, i.e. firmly established and regularly followed, by 17 the United States Supreme Court in Walker v. Martin, 562 U.S. 307 (2011). Walker's 18 holding, however, pertains to the doctrine of procedural default and does necessarily 19 shed light on whether petitioner's exhaustion petition will, in fact, be deemed timely. 20 Under Walker, discretionary rules like California's timeliness rules can still be deemed 21 adequate. 562 U.S. 320; see also Prihoda v. McCaughtry, 910 F.2d 1379, 1385 (7th Cir. 22 1990) (“[u]ncertainty is not enough to disqualify a state's procedural ground as one 23 ‘adequate’ under federal law”). Thus, in petitioner's case, the state court, could in its 24 discretion, find petitioner’s exhaustion petition to be untimely. 25 26 For the above-mentioned reasons, the Court finds that petitioner has demonstrated good cause for a stay. 27 28 5 CONCLU USION 1 2 For the above-me e entioned rea asons, the Court find a follows: as 3 1) Pet titioner’s mo otion for a stay is GRA s ANTED; 4 2) Res spondent’s request to dismiss the petition is DENIED; e s 5 3) Thirty days afte the entry of this Ord and eve 90 days thereafter until er y der, ery s r 6 procee edings in his state exha s austion cas are completed, peti se itioner shall serve and 7 file a brief report updating the Court on the status of his pend u ding state h habeas 8 action. No later th 30 day after proc han ys ceedings in his state c n case are co ompleted, 9 petition shall se ner erve and file notice tha proceedin are com e at ngs mpleted. 10 United States District Court Northern District of California 11 12 13 14 S RED. IT IS SO ORDER ated: April 6, 2017 6 Da __ __________ __________ __________ _______ PH HYLLIS J. H HAMILTON Un nited States District Ju s udge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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