Sifuentes v. Hedgpeth

Filing 49

Order by Hon. Phyllis J. Hamilton granting in part and denying in part 45 Motion to Dismiss.(hlkS, COURT STAFF) (Filed on 2/12/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8
9

MIGUEL GALINDO SIFUENTES,
No. C 09-2902 PJH

11
For the Northern District of California

United States District Court

10

12

Petitioner,
ORDER GRANTING IN PART
AND DENYING IN PART
MOTION TO DISMISS
FOURTH AMENDED
PETITION

vs.
P. BRAZELTON, Warden,

13

Respondent.
/

14
15

This is a habeas corpus petition by a state prisoner pursuant to 28 U.S.C. § 2254.

16

Respondent has filed a motion to dismiss the petition on the grounds that claims three and

17

five have not been exhausted in the state courts, and to dismiss claims three and four as

18

procedurally defaulted. Petitioner has filed an opposition and respondent has replied. The

19

court determines that the matter is suitable for decision without oral argument. Having

20

considered the relevant legal authority and the parties’ papers, the court DENIES the

21

motion to dismiss the mixed petition and GRANTS the motion to dismiss the procedurally

22

defaulted claims.

23
24

BACKGROUND
A jury convicted petitioner of first degree murder. He was sentenced to twenty-six

25

years to life in prison. He unsuccessfully appealed his conviction to the California Court of

26

Appeal, and the Supreme Court of California denied review. Petitioner also filed several

27

state motions and habeas petitions; all were unsuccessful.

28

1

Petitioner, originally appearing pro se, filed a federal habeas corpus petition on June

2

29, 2009. The court dismissed an amended petition and second amended petition with

3

leave to amend. Petitioner filed a third amended petition on October 25, 2010. By order

4

entered April 13, 2012, the court dismissed two of the claims from the third amended

5

petition and issued an order to show cause on the remaining 21 claims. Petitioner then

6

filed a motion for leave to file a fourth amended petition, which the court denied by order

7

entered August 8, 2012.

8

Counsel for petitioner filed a notice of appearance on August 10, 2012.

leave to file a fourth amended petition and set related deadlines. On October 28, 2012,

11
For the Northern District of California

Subsequently, on August 21, 2012, the court granted petitioner’s stipulated request for

10

United States District Court

9

petitioner filed a request for a three-month extension to file the fourth amended petition,

12

and then filed a fourth amended petition on November 1, 2012. By order dated November

13

2, 2012, the court denied petitioner’s request for an extension of time, and deemed the

14

fourth amended petition, filed on November 1, 2012, to be the operative petition.

15

Petitioner asserts the following five claims for relief:

16

(1)

17

Fifth, Sixth, and Fourteenth Amendments were violated when the prosecution

18

peremptorily challenged nine potential jurors on the basis of their race;

19

(2)

20

Fifth, Sixth, and Fourteenth Amendments were violated when the prosecution

21

challenged for cause two potential jurors on the basis of their race;

22

(3)

23

Eighth Amendment’s Cruel and Unusual Punishment Clause;

24

(4)

25

to a jury trial because it enabled the judge, rather than the jury, to determine

26

malice aforethought, an element of the charge; and

27

(5)

28

jurors regularly slept through key portions of his trial.

that his rights to due process, equal protection, and fair trial under the

that his rights to due process, equal protection, and fair trial under the

application of California’s felony murder rule to petitioner violated the

application of California’s felony murder rule violated petitioner’s right

petitioner’s due process and fair trial rights were violated when several

2

1
2

Respondent filed the instant motion to dismiss on November 29, 2012. Petitioner
timely filed an opposition on December 10, 2012, and respondent filed a reply.

3
4

ANALYSIS
I.

Procedural Default

5

A.

6

Under the doctrine of procedural default, federal habeas review is barred for any

Legal Standard

7

claims dismissed by a state court pursuant to a state procedural rule. Ybarra v. McDaniel,

8

656 F.3d 984, 991 (9th Cir. 2011) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)),

9

cert. denied, 133 S. Ct. 424 (2012). “A state court’s invocation of a procedural rule to deny
a prisoner’s claims precludes federal review of the claims if, among other requisites, the

11
For the Northern District of California

United States District Court

10

state procedural rule is a nonfederal ground adequate to support the judgment and the rule

12

is firmly established and consistently followed.” Martinez v. Ryan, 132 S. Ct. 1309, 1316

13

(2012). “The state-law ground may be a substantive rule dispositive of the case, or a

14

procedural barrier to adjudication of the claim on the merits.” Walker v. Martin, 131 S. Ct.

15

1120, 1127 (2011).

16

“Ordinarily, a state prisoner seeking federal habeas relief must first exhaust the

17

remedies available in the courts of the State, 28 U.S.C. § 2254(b)(1)(A), thereby affording

18

those courts the first opportunity to address and correct alleged violations of the prisoner’s

19

federal rights.” Martin, 131 S. Ct. at 1127 (citing Coleman, 501 U.S. at 731) (internal

20

quotation marks omitted). “The adequate and independent state ground doctrine furthers

21

that objective, for without it, habeas petitioners would be able to avoid the exhaustion

22

requirement by defaulting their federal claims in state court.” Id. (citation and internal

23

quotation marks omitted). Even if the state rule is adequate and independent, the claims

24

may be reviewed by the federal court if the petitioner can either show cause for the default

25

and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

26

failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v.

27

Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 749–50.

28

3

1

B.

Adequacy of State Procedural Rule

2

Respondent contends that claims three and four were presented to the state

3

supreme court for the first time in the state habeas corpus petition, and that the state

4

supreme court denied those claims as untimely. The state supreme court summarily

5

denied the petition for state habeas corpus with a citation to In re Robbins, 18 Cal. 4th 770,

6

780 (1998), which establishes that a state habeas petition is untimely if the petitioner fails

7

to demonstrate either the absence of substantial delay, good cause for the delay, or that

8

the claim falls within an exception to the bar of untimeliness. Respondent seeks dismissal

9

of those claims as procedurally defaulted.
Claim three alleges the following:

11
For the Northern District of California

United States District Court

10

The felony-murder rule violated the Cruel and Unusual Punishments clause

12

as applied to the facts of Petitioner’s case. His age, his lack of any criminal

13

record, and in particular his minimal involvement in the underlying robbery

14

make a life sentence grossly disproportionate to the lesser punishments

15

generally given to others for much more culpable conduct.

16

4th Am. Pet. at 2.

17

Claim four alleges as follows:

18

The felony-murder rule violated Petitioner’s right to a jury trial because it

19

permitted the judge to find a fact, malice aforethought, that the jury was

20

required to find in order to support a sentence of life imprisonment. The jury

21

found only that Petitioner had the intent to rob. It did not find that he had the

22

intent to kill, or that he was extremely reckless within the meaning of

23

California Penal Code Sections 187 and 189.

24
25

Id.
Petitioner concedes that claims three and four are procedurally defaulted. Opp. at

26

10. He further concedes that California’s procedural rule requiring state habeas petitions to

27

be filed without substantial delay is consistently applied. Id. at 3. Petitioner does not

28

dispute that the rule is an independent state ground, but contends that respondent has

4

1

failed to show that the procedural default was adequate to preclude federal review by

2

establishing that “the practice gives to the litigant a reasonable opportunity to have the

3

issue as to the claimed right heard and determined by that court.” Id. (citing Parker v.

4

Illinois, 333 U.S. 571, 574 (1948) and Central Union Tel. Co. v. Edwardsville, 269 U.S. 190,

5

194-95 (1925)). Because procedural default is an affirmative defense, petitioner contends

6

that respondent bears the burden to show that the default was adequate to preclude federal

7

review. Id. (citing Bennett v. Mueller, 322 F.3d 523, 585-86 (9th Cir. 2003)).

8
9

Petitioner does not accurately acknowledge the burden of persuasion on the issue of
a rule’s adequacy to bar federal habeas review. Under Ninth Circuit authority, the
adequacy of a state procedural rule is subject to a burden-shifting scheme. As the court

11
For the Northern District of California

United States District Court

10

noted in Dennis v. Brown, 361 F. Supp. 2d 1124, 1129 (N.D. Cal. 2005), once the state

12

pleads the existence of an independent and adequate state procedural ground to bar a

13

habeas claim, the burden shifts to the petitioner to establish the inadequacy of that

14

procedure. If the petitioner places the adequacy of the procedural rule at issue, then the

15

burden shifts back to the respondent to demonstrate that the procedural rule is adequate:

16
17

In Bennett, the Ninth Circuit adopted a new burden-shifting test for
determining whether a state procedural bar is adequate. The Ninth
Circuit held that

18

the ultimate burden of proving the adequacy of the California
state bar is upon the State of California. . . . Once the state
has adequately pled the existence of an independent and
adequate state procedural ground as an affirmative defense,
the burden to place that defense in issue shifts to the
petitioner. The petitioner may satisfy this burden by asserting
specific factual allegations that demonstrate the inadequacy of
the state procedure, including citation to authority
demonstrating inconsistent application of the rule. Once
having done so, however, the ultimate burden is the state’s. [¶]
Accordingly, because it is the State who seeks dismissal
based on the procedural bar, it is the State who must bear the
burden of demonstrating that the bar is applicable. . . .

19
20
21
22
23
24
25
26
27
28

Id. (quoting Bennett, 322 F.3d at 585-86).
1.

Respondent’s Initial Burden

Under the Bennett burden-shifting test, respondent has adequately asserted the
existence of an independent and adequate state procedural ground as an affirmative

5

1

defense. In Martin, the Supreme Court held that California’s timeliness rule for habeas

2

petitions, which is at issue here, meets the “firmly established” and “regularly followed”

3

criteria to qualify as an adequate procedural ground under the procedural default doctrine.

4

131 S. Ct. at 1127-29.

5
6

2.

Petitioner’s Burden

Under Bennett, petitioner bears the interim burden to place the affirmative defense

Supp. 2d at 1130. Petitioner contends that the manner in which the timeliness rule was

9

applied to his case deprived him of any reasonable opportunity to have the constitutionality

10

of the felony murder rule, either on its face or as applied, heard by the state supreme court.

11
For the Northern District of California

of procedural default at issue by alleging inadequacy with particularity. Dennis, 361 F.

8

United States District Court

7

Opp. at 3.

12

To show that he was denied any reasonable opportunity to present his constitutional

13

challenges to the felony murder rule, petitioner contends that he made repeated efforts to

14

have his claims heard by the state courts. His appellate counsel declined to assert any

15

such challenge on direct appeal, and when he was informed that he could not make any

16

pro se filings when he was represented by a lawyer, he moved to discharge his appellate

17

counsel. Opp. at 5 (citing Mot., Ex. 4 at 42). Petitioner contends that the court of appeal

18

denied the motion to discharge counsel without advising petitioner that he could file a pro

19

se petition for state habeas during the pendency of his direct appeal. Opp. at 5 and Ex. A.

20

After the court of appeal affirmed his conviction, but before his lawyer filed a petition for

21

review, petitioner filed his own petition for review in the state supreme court, appending a

22

letter from his lawyer referring to his constitutional challenge to the felony murder rule as

23

frivolous. Id. at 5-6 (citing Mot., Ex. 4 at 70). The state supreme court declined to take

24

action on the pro se petition for review, and denied the petition for review that was filed by

25

his lawyer. Id. at 6. Petitioner contends that by independently seeking review of the

26

appellate court’s decision on his direct appeal, he tried to challenge the constitutionality of

27

the felony murder rule, but was told he could not. Id. However, petitioner fails to cite any

28

6

1

argument or statement in his pro se petition for review that states any challenge to the

2

felony murder rule.

3

Petitioner also contends that he was not informed that the state supreme court had

his trial records were about to be destroyed, and he requested a docket listing from the

6

state supreme court. Opp. at 6. He contends that his ignorance of the state supreme

7

court’s denial of review explains his delay in seeking post-conviction review, and that the

8

application of the timeliness rule to his state habeas petition, in combination with the other

9

state court rulings, deprived him of a reasonable opportunity to raise his constitutional

10

claims. Opp. at 8-9. Petitioner’s allegations are sufficient under Bennett to shift the

11
For the Northern District of California

denied review, and was only alerted to the denial when he was notified by his lawyer that

5

United States District Court

4

burden to respondent to demonstrate the adequacy of the timeliness procedural rule which

12

is challenged here.

13
14

3.

Respondent’s Ultimate Burden

Once petitioner has placed the procedural default defense at issue, the ultimate

15

burden shifts back to respondent: “because it is the State who seeks dismissal based on

16

the procedural bar, it is the State who must bear the burden of demonstrating that the bar is

17

applicable.” Bennett, 322 F.3d at 586.

18

Respondent contends that petitioner was allowed full access to the state appellate

19

courts to challenge his conviction, and was not denied a reasonable opportunity to present

20

his constitutional challenges to the state supreme court. Respondent points out that

21

petitioner was represented by counsel throughout the state appellate process, and his

22

attorney presented multiple issues for review in the court of appeal and the supreme court.

23

Reply at 5. Addressing petitioner’s contention that the court of appeal did not advise him of

24

his right to file a pro se habeas petition while his direct appeal was pending, respondent

25

counters that the state courts owe no duty to tutor a criminal defendant on the procedures

26

for habeas review, particularly when the defendant is represented by appellate counsel.

27

Reply at 5. Indeed, petitioner cites no authority to support his contention that the state

28

appellate court should have advised him of the opportunity to seek state habeas review,

7

1

and there is no clearly established federal law requiring courts to advise criminal

2

defendants of their right to represent themselves on collateral review. See Pliler v. Ford,

3

542 U.S. 225 (2004) (holding that a district court is not required to give a pro se litigant

4

warnings about stay-and-abeyance procedure); Martinez v. Court of Appeal of California,

5

Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (“the trial judge is under no duty to provide

6

personal instruction on courtroom procedure or to perform any legal chores for the

7

defendant that counsel would normally carry out”) (citation and internal quotation marks

8

omitted).

9

As authority for the adequacy of California’s timeliness requirement, respondent
cites Martin, where the Supreme Court found no inadequacy in California’s timeliness rule

11
For the Northern District of California

United States District Court

10

for habeas petitions generally or as applied in that particular case. As respondent points

12

out in his reply brief, petitioner’s opposition brief fails to address or distinguish the holding

13

of Martin. Reply at 2. In a subsequent letter to the court, petitioner reiterates his argument

14

that the timeliness rule was invoked in a manner that denied him any reasonable

15

opportunity to be heard on his underlying claims, and suggests that Martin is inapposite.

16

Doc. no. 48.

17

Martin determined that the timeliness rule is adequate on the ground that it is “firmly

18

established and regularly followed,” and did not address the “reasonable opportunity”

19

challenge presented by petitioner here. The reasoning of Martin, however, forecloses

20

petitioner’s challenge to the adequacy of the timeliness rule, which is based on his

21

contention that the rule was inadequate as applied to him, under the circumstances of his

22

case. The Supreme Court held that the fact that outcomes under the timeliness rule may

23

vary from case to case does not render the procedural bar inadequate. Martin, 131 S. Ct.

24

at 1130 (“A discretionary rule ought not to be disregarded automatically upon a showing of

25

seeming inconsistencies.”). The Supreme Court expressly rejected the Ninth Circuit’s

26

holding that California’s time bar is not consistently applied because outcomes under the

27

rule vary from case to case. Martin, 131 S. Ct. at 1129-30. The Supreme Court

28

commended the flexibility enabled by the discretionary timeliness rule, over a more

8

1

draconian, unyielding rule that would generate more consistency but would yield “harsh

2

results.” Id. at 1130. This reasoning in Martin undermines petitioner’s argument that even

3

though the timeliness rule might be generally valid, it was inadequate under the unique

4

circumstances of his case. Opp. at 10. See Martin, 131 S. Ct. at 1128 (“A rule can be

5

firmly established and regularly followed [ ] even if the appropriate exercise of discretion

6

may permit consideration of a federal claim in some cases but not others.”) (citation and

7

internal quotation marks omitted).

8
9

With respect to an as-applied challenge to a state procedural rule, Martin recognizes
that a state ground “may be found inadequate when ‘discretion has been exercised to
impose novel and unforeseeable requirements without fair or substantial support in prior

11
For the Northern District of California

United States District Court

10

state law.’” 131 S. Ct. at 1130 (citing 16B Wright, Miller et al., Federal Practice and

12

Procedure § 4026 at 386 (2d ed. 1996)). Here, in his as-applied challenge to the timeliness

13

rule, petitioner does not contend that the state supreme court exercised its discretion under

14

the timeliness rule in a “surprising or unfair manner” so as to demonstrate inadequacy on

15

the ground that “discretion has been exercised to impose novel and unforeseeable

16

requirements.” Martin, 131 S. Ct. at 1130. Rather, he contends that the procedural rule

17

was inadequate as applied to him because it denied him any reasonable opportunity to

18

present his constitutional challenges to the felony murder rule. Petitioner cites Collier v.

19

Bayer, 408 F.3d 1279 (9th Cir. 2005), where the Ninth Circuit held that Nevada’s procedural

20

rules, as applied to that petitioner’s case, were not adequately established and could not

21

bar federal habeas review. In particular, the court of appeals found that the Nevada

22

procedural rule establishing when an amended judgment may restart the time to file habeas

23

petitions was not clear and well-established under state law until a ruling by the state

24

supreme court was issued five years after the petitioner filed his state habeas petition.

25

Collier, 408 F.3d at 1286. Collier did not address the adequacy of California’s procedural

26

rules and was decided before Martin, where the Supreme Court reviewed the timeliness

27

rule directly at issue here. Martin held that California’s timeliness requirement for habeas

28

petitions was firmly established and regularly followed under a trilogy of controlling

9

1

California Supreme Court decisions, and therefore adequate as a procedural bar to federal

2

habeas review. 131 S. Ct. at 1128-29 (citing In re Gallego, 18 Cal. 4th 825 (1998); In re

3

Robbins, 18 Cal. 4th 770 (1998); In re Clark, 5 Cal. 4th 750 (1993)).

4

Even assuming that his “reasonable opportunity” challenge is not foreclosed by the

reasonable opportunity to have his constitutional challenges to the felony murder rule heard

7

by the state appellate courts. In his state habeas petition, petitioner cited ineffective

8

assistance of counsel and other factors as the cause of the delay in discovering and raising

9

his habeas claims. Mot., Ex. 4 at 9, 12. Petitioner argued in his state habeas petition that

10

there was an absence of substantial delay based on his “efforts to be diligent in preparing

11
For the Northern District of California

holding of Martin, petitioner has not demonstrated that the procedural rule denied him a

6

United States District Court

5

and in filing his claims,” despite ineffective counsel, the need to review voluminous

12

documents in the record, inadequate law library access, and his lack of legal training. Id.

13

These arguments addressing delay were presented to the state supreme court, which

14

summarily denied the habeas petition for untimeliness, a procedure which Martin found to

15

be adequate. Martin, 131 S. Ct. at 1129 (“We see no reason to reject California’s time bar

16

simply because a court may opt to bypass the Clark/Robbins assessment and summarily

17

dismiss a petition on the merits, if that is the easier path.”). In light of the totality of

18

circumstances, petitioner was represented by counsel throughout his direct appeal from the

19

judgment and was afforded a reasonable opportunity to present his claims to the state

20

courts. To the extent that petitioner blames his attorney for failing to raise claims three and

21

four during the direct appeal, that argument might have some bearing on whether there

22

was cause for his untimeliness, but does not call into question the adequacy of the

23

procedural rule itself.

24

C.

Cause and Prejudice

25

Petitioner challenges only the adequacy of the timeliness rule and does not address

26

the cause and prejudice standard in his opposition to dismiss, even though he was put on

27

notice of the need to show cause and prejudice by respondent’s opening brief. Mot. at 7

28

n. 4. Petitioner’s failure even to attempt to show cause for the default and actual prejudice,

10

1

or a fundamental miscarriage of justice to excuse the default, is a serious oversight where

2

respondent seeks dismissal of those claims as procedurally defaulted. Even if petitioner’s

3

arguments challenging the adequacy of the procedural rule are favorably construed to

4

show that ineffective assistance of counsel on direct appeal of his conviction established

5

cause for the untimely habeas claims, petitioner fails to address, much less demonstrate,

6

actual prejudice resulting from his lawyer’s failure to raise his challenges to the felony

7

murder rule on direct review. Even after respondent filed a reply brief addressing the legal

8

insufficiency of claims three and four, thereby showing lack of prejudice from the failure to

9

raise those claims during the appellate proceedings, Reply at 5 n.1, petitioner did not seek
leave to address respondent’s argument that those claims lacked merit or seek leave to

11
For the Northern District of California

United States District Court

10

cure his omission of any discussion of cause and prejudice from his opposition brief. Yet,

12

in a subsequent letter to the court, petitioner briefly responded to another argument made

13

by respondent in his reply brief, concerning petitioner’s failure to cite or discuss Martin.

14

Petitioner has failed to show any basis to excuse the procedural default of claims three and

15

four.

16

On the issue of adequacy, Martin governs the determination that California’s

17

timeliness rule is adequate to bar federal habeas review. Claims three and four, having

18

been denied as untimely by the state supreme court, are therefore dismissed as

19

procedurally defaulted.

20

II.

21

Mixed Petition
In addition to seeking dismissal of claims three and four as procedurally defaulted,

22

respondent contends that claims three and five were not exhausted, and that the mixed

23

federal habeas petition must be dismissed. Respondent does not challenge claims one

24

and two on either exhaustion or procedural default grounds.

25

A.

26

“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust

Legal Standard

27

available state remedies, 28 U.S.C. § 2254(b)(1), thereby giving the State the opportunity

28

to pass upon and correct alleged violations of its prisoners’ federal rights.” Baldwin v.

11

1

Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per

2

curiam)) (internal citation and quotation marks omitted). “To provide the State with the

3

necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in each appropriate state

4

court (including a state supreme court with powers of discretionary review), thereby alerting

5

that court to the federal nature of the claim.” Id.

6

District courts have the authority to stay mixed petitions to allow for exhaustion. See

7

Rhines v. Webber, 544 U.S. 269, 274-75 (2005). However, such stays can only be granted

8

upon a showing of good cause for petitioner’s failure to exhaust the issues before filing the

9

federal petition, and a showing that the issues which the petitioner proposes to exhaust are
“potentially meritorious.” Id.

11
For the Northern District of California

United States District Court

10

B.

12

Respondent contends that petitioner failed to exhaust claim three on the ground that

13

his state habeas petition claimed that his sentence was disproportionate to other sentences

14

for the same conduct, but did not argue in state court that other factors such as his age or

15

lack of a prior criminal record made a life sentence grossly disproportionate to the

16

punishment given to others, as he now argues in his federal habeas petition. Liberally

17

construed, petitioner’s claim for “Disproportionate Sentence” in his state habeas petition

18

fairly presented these grounds for challenging his sentence. As respondent agrees that

19

this claim was procedurally defaulted, claim three satisfies the exhaustion requirement for

20

purposes of habeas review. See Woodford v. Ngo, 548 U.S. 81, 92-93 (2006) (explaining

21

that for purposes of habeas review, procedurally defaulted claims are exhausted but are

22

otherwise barred under the procedural default doctrine). The motion to dismiss claim three

23

on the ground of failure to exhaust is therefore denied.

Claim Three

24

C.

25

Respondent also contends that claim five, which alleges that some jurors slept

Claim Five

26

through the trial in violation of his rights to due process and fair trial, was not exhausted.

27

Petitioner does not dispute that his state habeas petition fails to state the due process

28

challenge asserted in claim five. See Mot., Ex. 4 at 13-24 (listing grounds for relief).

12

1

Rather, petitioner argues that the petition incorporated excerpts from the trial transcript and

2

affidavits that referred to the issue of sleeping jurors, and therefore fairly presented his due

3

process and fair trial challenges. Opp. at 11-12 (citing Mot., Ex. 4 at 88-102). Under

4

clearly established federal law, however, a state prisoner ordinarily “does not ‘fairly present’

5

a claim to a state court if that court must read beyond a petition or a brief (or a similar

6

document) that does not alert it to the presence of a federal claim in order to find material [ ]

7

that does so.” Baldwin v. Reese, 541 U.S. 27, 32 (2004). The Ninth Circuit has held in

8

particular that a federal claim is not fairly presented to state courts simply because it is

9

mentioned in the trial transcript. Robinson v. Kramer, 588 F.3d 1212, 1216-17 (9th Cir.

11
For the Northern District of California

United States District Court

10

2009). Under this controlling authority, petitioner has failed to exhaust claim five.
Petitioner has not requested a stay of these proceedings to allow him to exhaust any

12

unexhausted claims in the mixed petition. The court notes that petitioner previously filed a

13

pro se federal habeas petition and requested a stay to allow exhaustion, which was granted

14

by the court. See Sifuentes v. Hedgpeth, C07-4465 PJH (PR) (order filed Sept. 17, 2007).

15

After the state supreme court denied his state habeas petition on May 20, 2009, petitioner

16

filed a federal habeas petition in this action, rather than reopening the earlier case.

17

As a discretionary matter, and in view of petitioner’s retention of habeas counsel, the

18

court will permit petitioner again to request a stay to exhaust his unexhausted claim, upon a

19

showing of good cause and potential merit. Petitioner must notify the court whether he will

20

seek a stay and abeyance of the federal habeas petition to allow him to present claim five

21

in state court. Any request for a stay must establish good cause for petitioner’s failure to

22

exhaust the issues before filing the federal petition, and must show that the issues which

23

the petitioner proposes to exhaust are “potentially meritorious.” Rhines, 544 U.S. at 277. If

24

the court issues a stay and abeyance, and petitioner is not granted relief in state court, he

25

may return to this court and ask that the stay be lifted.

26

Alternatively, petitioner may elect to dismiss claim five from the petition and proceed

27

with claims one and two. Petitioner must notify the court of his election within 21 days of

28

the date of this order.

13

1
2

CONCLUSION
For the reasons set forth above, respondent’s motion to dismiss claims three and

3

four as procedurally defaulted is GRANTED, and the motion to dismiss the mixed petition is

4

DENIED. Doc. no. 45. Within 21 days of the date of this order, petitioner, through his

5

habeas counsel, must file notice of his election either (1) to seek a stay and abeyance to

6

exhaust claim five, or (2) to dismiss claim five.

7

IT IS SO ORDERED.

8
9

Dated: February 12, 2013
PHYLLIS J. HAMILTON
United States District Judge

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

14