Gordon v. Lizarraga

Filing 55

ORDER Directing Petitioner to Address Grounds to Stay and Abey Petition to Exhaust State Remedies. Signed by Judge Phyllis J. Hamilton on 8/17/2018. (pjhlc3S, COURT STAFF) (Filed on 8/17/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CHARLES DAVID GORDON,

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United States District Court
Northern District of California

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Case No. 12-cv-00769-PJH

Petitioner,

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v.

JOE A. LIZARRAGA,
Respondent.

ORDER DIRECTING PETITIONER TO
ADDRESS GROUNDS TO STAY AND
ABEY PETITION TO EXHAUST STATE
REMEDIES

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Before the court is the second amended petition for writ of habeas corpus (“Pet.”)

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pursuant to 28 U.S.C. § 2254 filed by represented state prisoner Charles David Gordon.

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In the traverse filed January 12, 2018, Gordon presents new arguments and evidence in

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support of her claims. Dkt. 33. Respondent has objected to the newly filed exhibits on

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the ground that they were not presented to the state court. Dkt. 40. Because these

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exhibits were not presented to the state court, the claims based on that evidence are

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unexhausted. Gordon is therefore directed to address any applicable grounds to request

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a stay and abeyance of the mixed habeas petition to exhaust the claims in state court.
LEGAL STANDARD

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A. Exhaustion

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A federal court may not grant habeas relief until a petitioner has exhausted

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available state remedies with respect to each claim. 28 U.S.C. § 2254(b); Picard v.

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Connor, 404 U.S. 270, 272 (1971). The exhaustion doctrine rests on principles of comity

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and federalism. Rose v. Lundy, 455 U.S. 509, 515 (1982). Exhaustion is required to:

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(1) protect the state court’s role in the enforcement of federal law; (2) prevent disruption

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of state court proceedings; and (3) reduce piecemeal litigation. Id. at 518–20.

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A federal constitutional claim is exhausted when it has been “fairly presented” to the

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highest state court and that court has had a meaningful opportunity to apply controlling

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legal principles to the facts underlying the claim. Picard, 404 U.S. at 276–77. A claim

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has been “fairly presented” if the petitioner described in state court both the legal theories

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and the operative facts on which he bases the claim. Id. at 277–78; see Crotts v. Smith,

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73 F.3d 861, 865 (9th Cir. 1996), superseded by statute on other grounds as stated in

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Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000).

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To fairly present the legal theory of a claim, a petitioner must alert the state court
that he is asserting a federal constitutional claim, either by citing the constitutional

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United States District Court
Northern District of California

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provision on which he relies or otherwise advising the court of the claim’s federal basis.

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Duncan v. Henry, 513 U.S. 364, 365–66 (1995). The factual basis of a claim has been

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fairly presented as long as the facts alleged in federal court do not fundamentally alter the

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nature of the claim, Vasquez v. Hillery, 474 U.S. 254, 260 (1986), place the claim in a

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“significantly different and stronger evidentiary posture” than it was when the state courts

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considered it, or “substantially improve[ ] the evidentiary basis” of the claim. Aiken v.

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Spalding, 841 F.2d 881, 883 (9th Cir. 1988). See also Chacon v. Wood, 36 F.3d 1459,

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1468 (9th Cir. 1994), superseded by statute on other grounds as stated in Morris v.

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Woodford, 229 F.3d 775, 779 (9th Cir. 2000).

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In Cullen v. Pinholster, 563 U.S. 170 (2011), the Supreme Court held federal

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habeas review under 28 U.S.C. Section 2254(d)(1) is limited to the record that was

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before the state court that adjudicated the claim on the merits. See id. at 180-81 (holding

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district court erred in considering evidence introduced for first time in federal court).

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B. Stay and Abeyance

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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, 455

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U.S. at 522. When a petitioner files a petition which contains both exhausted and

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unexhausted claims, a court has three options: (1) it can dismiss the entire application
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without prejudice in order to allow the petitioner to return to state court to present his

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unexhausted claims; (2) it can delete the unexhausted claims from the petition so that the

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habeas proceeding can continue with only the remaining exhausted claims; or (3) in

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limited circumstances, it can stay the proceedings and hold the case in abeyance while

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the petitioner returns to state court to exhaust his previously unexhausted claims.

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Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007). The stay and abey option was

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crafted in response to a problem resulting from the interplay between the total exhaustion

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requirement of Lundy and the one-year statute of limitations for filing federal habeas

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corpus applications. See 28 U.S.C. § 2244(d). If a federal court dismisses a mixed

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petition in order to allow a petitioner to return to state court to exhaust his claims, the

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United States District Court
Northern District of California

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AEDPA’s one-year statute of limitations could bar review of his entire petition when he

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refiles it in federal court. Rhines v. Weber, 544 U.S. 269, 275 (2005). A district court

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should grant a motion to stay and abey only if: (1) the petitioner has good cause for his

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failure to exhaust his claims, (2) the unexhausted claims are potentially meritorious, and

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(3) there is no indication that the petitioner intentionally engaged in dilatory tactics. Id. at

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278.

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DISCUSSION
The traverse included Exhibits 80 through 83 which were not presented in the

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state habeas proceedings, or in the second amended habeas petition filed here. Gordon

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offers these newly filed exhibits as further evidentiary support for four claims for habeas

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relief that the court previously found cognizable. Dkt. 33 at 32 (Claim 2), 56-57 (Claim 9),

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72 (Claim 12, referring to arguments in support of Claim 9), 85-86 (Claim 14). Gordon

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asks the court to consider a factual basis for these claims that was not fully and fairly

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presented to the state court, without seeking a stay of the federal petition to exhaust

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these claims in state court. The court has reviewed all the papers and determines that

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the new exhibits are offered to improve the evidentiary basis for Claims 2, 9, 12 and 14,

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by demonstrating Gordon’s diagnosis of gender dysphoria and arguing for the first time

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that her gender identity affected her mental state when she was interrogated and when
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she wrote the jailhouse letters. The evidence of Gordon’s gender dysphoria does not

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merely clarify the facts presented in the state habeas proceedings, but could

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“fundamentally alter” the claims that have already been considered by the state courts.

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See Vasquez v. Hillery, 474 U.S. 254, 257–58, 260 (1986). See also Nevius v. Sumner,

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852 F.2d 463, 470 (9th Cir. 1988) (“If there is evidence that should be presented to the

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state courts, then the attempt must first be made to present it there and to make a record.

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Only thereafter, under the appropriate procedural strictures, may the matter be

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addressed in federal court.”).

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Accordingly, Gordon is granted leave to file a motion to stay and abey the petition
for consideration of the new evidence in state court. There are two kinds of stays

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United States District Court
Northern District of California

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available in a habeas action: the Rhines stay, discussed above, and the King/Kelly stay.

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See King v. Ryan, 564 F.3d 1133, 1141–42 (9th Cir. 2009), and Kelly v. Small, 315 F.3d

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1063 (9th Cir. 2003), overruled on other grounds as recognized by Robbins v. Carey, 481

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F.3d 1143, 1148–49 (9th Cir. 2007). Where a petitioner is unable to meet the

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requirements of a Rhines stay, the King/Kelly stay offers an alternative method to deal

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with a mixed petition.

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Under the procedure outlined in Kelly, “(1) a petitioner amends his petition to

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delete any unexhausted claims; (2) the court stays and holds in abeyance the amended,

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fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to

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exhaust the deleted claims; and (3) the petitioner later amends his petition and re-

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attaches the newly-exhausted claims to the original petition.” King, 564 F.3d at 1134

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(citing Kelly, 315 F.3d at 1070–71). A petitioner seeking to avail herself of the Kelly

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three-step procedure is not required to show good cause as under Rhines, but rather

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must eventually show that the amendment of any newly exhausted claims back into the

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petition satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common

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core of operative facts” and Duncan v. Walker, 533 U.S. 167 (2001), by complying with

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the statute of limitations. King, 564 F.3d at 1141–43.

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CONCLUSION

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Gordon is directed to file a motion to stay the petition, or a statement that she will

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not move to stay, within 14 days of the date of this order. Respondent may file a

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response 14 days after Gordon files the motion to stay. If Gordon elects not to move

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for a stay and abeyance of the federal habeas petition, the court will proceed to rule on

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respondent’s objections to the new exhibits filed with the traverse and the merits of the

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petition.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: August 17, 2018
__________________________________
PHYLLIS J. HAMILTON
United States District Judge

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