Levao v. Lewis

Filing 12

ORDER (1) Adopting Report and Recommendation 9 , (2) Overruling Petitioner's objections 11 , and (3) Denying Motion for Stay and Abeyance 3 . Petitioner must choose one of the following options: 1.) First Option: File a Motion for Withdrawal and Abeyance. If Petitioner chooses this option, he must file a request for withdrawal and abeyance no later than 30 days following the issuance of this order. Respondent may file a reply no later than 45 days following the issuance of this order. 2. ) Second Option: Voluntarily Dismiss the Petition. If Petitioner chooses this second option, he must file dismissal papers no later than 30 days following the issuance of this order. 3.) Third Option: Formally Abandon Unexhausted Claims. If Petitioner chooses this third option, he must file a pleading with this Court no later than 30 days following the issuance of this order. Signed by Judge Thomas J. Whelan on 11/23/10. (All non-registered users served via U.S. Mail Service)(lao)

-NLS Levao v. Lewis

Doc. 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 On May 13, 2010, Petitioner United Levao, a California prisoner proceeding pro 22 se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"), and 23 a motion to stay the federal habeas proceedings and hold the Petition in abeyance. 24 Respondent D.T. Lewis opposes the motion. 25 On July 29, 2010, United States Magistrate Judge Nita L. Stormes issued a Report 26 and Recommendation ("Report") recommending that this Court deny the motion for 27 stay and abeyance. Petitioner filed an objection to the Report. Respondent did not file 28 a reply.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA UNITED LEVAO, Petitioner, vs. CASE NO. 10-CV-1040 W (NLS) ORDER(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 9], (2) OVERRULING PETITIONER'S OBJECTIONS [DOC. 11], AND (3) DENYING MOTION FOR STAY AND ABEYANCE [DOC. 3]

D.T. LEWIS, Warden, Respondent.

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The Court decides the matters on the papers submitted and without oral

2 argument. See Civ. Local R. 7.1(d)(1). For the reasons outlined below, the Court 3 ADOPTS the Report in its entirety (Doc. 9), OVERRULES Petitioner's objections 4 (Doc. 11), and DENIES Petitioner's motion for stay and abeyance (Doc. 3). 5 6 I. 7 BACKGROUND In 2006, Petitioner was convicted in San Diego Superior Court of first-degree

8 murder with enhancements for personal use of a firearm and commission of a crime for 9 the benefit of a gang. (Pet. ¶¶ 1­6 [Doc. 1]; Resp't's Opp'n Ex. D, at 56 [Doc. 6-1].) 10 The trial court sentenced Petitioner to state prison for 25 years to life for the murder 11 conviction, added a consecutive 25 years to life for the firearm enhancement, and stayed 12 the sentence on the gang enhancement. (Pet. ¶¶ 4­6; Resp't's Opp'n Ex. D, at 56.) 13 Petitioner raised four individual claims on direct appeal. (Resp't's Opp'n Ex. D, 14 at 13, 22­51.) On November 12, 2008, the California Court of Appeal rejected 15 Petitioner's claims and affirmed the trial court's judgments, but with modifications based 16 on grounds separate from Petitioner's individual claims.1 (Pet. ¶ 11; Resp't's Opp'n Ex. 17 D, at 70.) Petitioner pursued review in the California Supreme Court, but his Petition 18 for Review was denied. (Pet. ¶ 12; Resp't's Opp'n Ex. C, at 10.) 19 On May 6, 2010, Petitioner began pursuing his state-court remedies when he 20 delivered his state habeas petition to prison authorities. (Pet. ¶ 24; Resp't's Opp'n Ex. B, 21 at 3.) On May 13, 2010, he filed a Petition a for Writ of Habeas Corpus under 28 22 23 24 25 26 27 28
Petitioner also raised two joint claims with his co-defendant challenging the admission of gang evidence to prove the gang-enhancement allegation and the sentence for the gang enhancements. (Resp't's Opp'n Ex. D, at 13, 22­51.) The California Court of Appeal rejected the challenge regarding the admission of gang evidence, but found that the trial court erred in imposing and staying the ten-year gang enhancement. (Id. at 57­62.) As a result of the finding, the California Court of Appeal modified the judgment against Petitioner by striking the ten-year gang enhancement and imposing 15-year-minimum parole-eligibility terms. (Id. at 70.)
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1 U.S.C. § 2254, and a motion to stay the federal habeas proceedings and hold the 2 Petition in abeyance. 3 In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 4 ("AEDPA"), Petitioner's one-year statue of limitations to file a federal habeas petition 5 expired on May 12, 2010.2 (Pet. ¶ 12.) On June 10, 2010, Respondent filed his 6 opposition to the stay-and-abeyance motion. Petitioner filed his reply on July 19, 2010. 7 Also, on June 10, 2010, Petitioner filed a petition for writ of habeas corpus in San Diego 8 Superior Court. (Resp't's Opp'n Ex. B, at 3­6.) 9 On July 29, 2010, Magistrate Judge Stormes issued the Report finding that 10 Petitioner filed a mixed petition containing exhausted and unexhausted claims. (Report 11 1­2 [Doc. 9].) Petitioner exhausted his state-court remedies with respect to the first 12 four claims raised on direct appeal, but not the five additional claims raised in his federal 13 habeas petition. (Id.; see Pet., Attach. 1, at 5­13.) As such, the Report recommended 14 that this Court deny the motion for stay and abeyance, but presented Petitioner with 15 options for moving forward with his Petition. (Id. at 7.) On August 26, 2010, Petitioner 16 filed his objection to the Report. Respondent did not file a reply. 17 18 II. 19 LEGAL STANDARD A district court's duties concerning a magistrate judge's report and

20 recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the 21 Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are 22 filed, the district court is not required to review the magistrate judge's report and 23 recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 24 25
The AEDPA applies a one-year statute of limitations to federal habeas corpus petitions 26 once the state-court judgment becomes final. Petitioner's state-court judgment became final 27 on May 12, 2009, 90 days after the California Supreme Court denied his Petition for Review. (Pet. ¶ 12.) Thus, Petitioner's one-year statute of limitations began to run May 13, 2009.
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1 2003) (holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the district judge 2 must review the magistrate judge's findings and recommendations de novo if objection 3 is made, but not otherwise") (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 4 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the 5 district court had no obligation to review the magistrate judge's report). This rule of law 6 is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 7 F.3d 992, 1000 n.13 (9th Cir. 2005) ("Of course, de novo review of a R & R is only 8 required when an objection is made to the R & R.") (emphasis added) (citing Renya9 Tapia, 328 F.3d at 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 10 2005) (Lorenz, J.) (adopting report without review because neither party filed objections 11 to the report despite the opportunity to do so, "accordingly, the Court will adopt the 12 Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 13 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.). 14 In contrast, the duties of a district court in connection with a magistrate judge's 15 report and recommendation are quite different when an objection has been filed. These 16 duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. 17 § 636(b)(1). Specifically, the district court "must make a de novo determination of those 18 portions of the report . . . to which objection is made," and "may accept, reject, or 19 modify, in whole or in part, the findings or recommendations made by the magistrate." 20 28 U.S.C. § 636(b)(1)(c)); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); 21 22 23 III. 24 25 26 D ISCUSSION A. Petitioner Has Not Demonstrated Good Cause for His Failure to Exhaust State Court Remedies. A district court may not grant a petition for writ of habeas corpus unless the United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

27 petitioner exhausted available state-court remedies. 28 U.S.C. § 2254(b)(1); Rose v. 28 Lundy, 455 U.S. 509, 522 (1982) (holding that a federal district court must dismiss
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1 "mixed petitions" containing claims that have not been exhausted in state courts). In 2 order to satisfy the exhaustion requirement, a petitioner must "fairly present[] his 3 federal claim to the highest state court with jurisdiction to consider it . . . or . . . 4 demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 5 829 (9th Cir. 1996) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 6 404 U.S. 270, 275 (1971)). Furthermore, to "fairly present" a federal claim to the state 7 court, a petitioner must specifically "alert the state court[] to the fact that he was 8 asserting a claim under the United States Constitution." Hiivala v. Wood, 195 F.3d 9 1098, 1106 (9th Cir. 1999) (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). 10 The mere similarity between a claim of state and federal error, and general appeals to 11 broad constitutional principles are insufficient to establish exhaustion. Id. (citing Gray 12 v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 366). 13 A district court may grant a stay and abeyance for a mixed petition "only in 14 limited circumstances." Rhines v. Weber, 544 U.S. 269, 276-77 (2005). Specifically, 15 a stay-and-abeyance order is appropriate only when: (1) good cause exists for the 16 petitioner's failure to exhaust; (2) the petitioner's unexhausted claims are not "plainly 17 meritless;" and (3) there is no indication that the petitioner engaged in "abusive 18 litigation tactics or intentional delay." Id. at 277-78; Robbins v. Carey, 481 F.3d 1143, 19 1149 (9th Cir. 2005). 20 However, "good cause" under Rhines is not clearly defined. In the Ninth Circuit, 21 good cause is, without further clarification, less stringent than the "extraordinary 22 circumstances" standard for equitable tolling of the statute of limitations. See Jackson 23 v. Roe, 425 F.3d 654, 656 (9th Cir. 2005). District courts within the Ninth Circuit have 24 more narrowly defined the standard. Some have required the showing of "some 25 objective factor external to the petitioner" that prevented timely exhaustion. 26 Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005). Others have 27 equated the good-cause standard to "excusable neglect." See Corjasso v. Ayers, No. 28 CIVS970018GEBGGHP, 2006 WL 618380, at *1 (E.D. Cal. Mar. 9, 2006). The latter
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1 interpretation considers factors such as prejudice to the non-moving party, length of the 2 delay and its effect on efficient court administration, and whether the delay was caused 3 by factors beyond the control of the movant, and good faith. Id. at 1. 4 Here, Petitioner's good-cause showing for his failure to exhaust his claims prior 5 to seeking federal habeas relief is clearly deficient. Petitioner blames his failure to 6 exhaust his state-court remedies on a change in the Pelican Bay State Prison copy 7 policy. (Pet'r's Objection 2­3 [Doc. 11].) However, Petitioner claims he was ready to 8 mail out his state habeas petition on May 6, 2010 when he sought photocopies. (Id. at 9 2­3.) Also, when Petitioner went to the prison law library to make photocopies, prison 10 authorities informed him that he would lose possession of his state habeas petition until 11 May 25, 2010 while the prison made a decision regarding his request. (Id.) In spite of 12 knowing that the prison authorities would not return his state habeas petition before 13 May 12, 2010--when the statute of limitations for filing his federal habeas petition 14 would expire--Petitioner requested photocopies. (Id.) That is, he could have timely 15 filed his state habeas petition but chose not to do so. (See id.) Thus, the delay was not 16 caused by any objective external factors beyond Petitioner's control, but rather 17 Petitioner himself. See Corjasso, 2006 WL 618380, at *1; Hernandez, 397 F. Supp. 2d 18 at 1207. 19 Furthermore, Petitioner had one year to exhaust his state-court remedies. 20 Petitioner was aware of the factual basis for all of the unexhausted claims since his 21 conviction became final because all of the claims are based on events that occurred at 22 trial, and he received his legal papers on April 9, 2009. (See Pet. ¶¶ 11­22.) But 23 Petitioner has not explained why it took him almost one year to prepare and file his 24 state habeas petition. He had ample time to exhaust his claims but did not use the time 25 he had available to do so. Also, Petitioner requested photocopies on May 6, 2010 and 26 received a response from the prison by May 21, 2010. (Pet'r's Objection 2; Pet'r's Mot., 27 Attach. 2 at 17 [Doc. 3].) Any delay allegedly caused by the prison's change in the copy 28 policy is nominal relative to the one year Petitioner had to prepare and file his state
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1 habeas petition following the finality of his conviction. See 28 U.S.C. § 2244(d)(1)(A)2 (D). 3 Based on the above, Petitioner failed to demonstrate good cause for his failure to 4 exhaust his claims in state court.3 He has neither shown "some objective factor external 5 to [him]" that prevented timely exhaustion, nor "excusable neglect." See Corjasso, 6 2006 WL 618380, at *1; Hernandez, 397 F. Supp. 2d at 1207. Therefore, the stay-and7 abeyance procedure is not appropriate. 8 9 10 11 13 14 15 1. First Option: File a Motion for Withdrawal and Abeyance A second method of staying a timely federal habeas petition while a petitioner B. To Avoid the Court Dismissing the Petition, Petitioner Must Choose One of the Following Options. Based on the fact that the petition is mixed and to avoid the Court dismissing the

12 Petition on its own accord, Petitioner must choose one of the following options.

16 returns to state court to exhaust unexhausted claims is the "withdrawal and abeyance" 17 procedure. Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007) (citing Calderon v. 18 Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1988)) (approving the withdrawal19 and-abeyance procedure, also known as the Taylor stay-and-abeyance procedure); 20 Olvera v. Giurbino, 371 F.3d 569, 572-73 (9th Cir. 2004); Smith v. Giurbino, No. 21 06cv700, 2008 WL 80983, *3 (S.D. Cal. Jan. 7, 2008) (Gonzalez, C.J.) (citing Kelly v. 22 Small, 315 F.3d 1063, 1070 (9th Cir. 2002)). Unlike the stay-and-abeyance procedure, 23 24
Petitioner argues the Court should apply a "reasonable confusion" standard to show good cause. Pace v. Diguglielmo, 544 U.S. 408, 416 (2005) (stating in dictum that "reasonable 25 confusion" about timeliness rules would "ordinarily" constitute good cause). Even if the Court applied this standard, Petitioner failed to provide any evidence to show reasonable confusion 26 regarding his understanding of timeless rules. In fact, Petitioner showed a clear understanding 27 of when the statute of limitations expired and how the date was calculated. (Pet'r's Mot. 2:8­13.)
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1 a petitioner seeking to use the withdrawal-and-abeyance procedure need not show good 2 cause for his failure to exhaust. Robbins, 481 F.3d at 1148. The three-step withdrawal3 and-abeyance procedure goes as follows: (1) the petitioner amends his mixed petition 4 to remove the unexhausted claims; (2) the district court stays and holds the amended 5 and fully exhausted petition in abeyance; and (3) the petitioner re-amends his petition 6 to add the newly exhausted claims after litigating them in state court. Id. The newly 7 exhausted claims, however, must "relate back" to the claims in the fully exhausted 8 petition--that is, they must share a "common core of operative facts" with the 9 previously exhausted claims. Kelly, 315 F.3d at 1142-43 (quoting Mayle v. Felix, 545 10 U.S. 644, 659 (2005)). 11 Petitioner is advised that it appears from the documents filed so far in this case 12 that the AEDPA's one-year statute of limitations expired on May 12, 2010. If this is 13 so, and absent any equitable tolling to which he may be entitled, he would be granted 14 leave to amend his timely federal habeas petition with the newly exhausted claims only 15 if he can demonstrate that they relate back to the claims in his fully exhausted petition 16 under Mayle. If he is unable to demonstrate that the claims relate back, he will be 17 unable to litigate those claims in this Court. 18 19 20 2. Second Option: Voluntarily Dismiss the Petition Petitioner may move to voluntarily dismiss his entire federal habeas petition and

21 return to state court to exhaust his unexhausted claims. Petitioner may then file a new 22 federal habeas petition containing only exhausted claims. See Rose, 455 U.S. at 510, 23 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to 24 "return[] to state court to exhaust his claims"). 25 // 26 // 27 // 28
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Petitioner is cautioned, however, that any new federal habeas petition must be

2 filed before the expiration of the one-year statute of limitations and in this case, as noted 3 above, it appears the AEDPA's one-year statute of limitations expired on May 12, 4 2010. Duncan v. Walker, 533 U.S. 167, 176 (2001); see 28 U.S.C. § 2244(d).4 The 5 statute of limitations does not run while a properly filed state habeas corpus petition is 6 pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 7 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 8 `properly filed' when its delivery and acceptance [by the appropriate court officer for 9 placement into the record] are in compliance with the applicable laws and rules 10 governing filings"); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that 11 a state application for post-conviction relief which is ultimately dismissed as untimely 12 was neither "properly filed" nor "pending" while it was under consideration by the state 13 court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. 14 However, absent some other basis for tolling, the statute of limitations continues to run 15 while the federal habeas petition is pending. Duncan, 533 U.S. at 181-82. 16 17 18 19 20 21 22 23 24 25 26 27 28
28 U.S.C. § 2244(d) provides: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of­ (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgement or claim is pending shall not be counted toward any period of limitation under this subsection.
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3.

Third Option: Formally Abandon Unexhausted Claims

Petitioner may formally abandon his unexhausted claims and proceed with his

3 exhausted claim. Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a 4 mixed petition may "resubmit[ ] the habeas petition to present only exhausted claims"). 5 However, Petitioner is cautioned that once he abandons his unexhausted claims, he may 6 lose the ability to ever raise them again in federal court. See Slack v. McDaniel, 529 7 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in 8 a first § 2254 petition renders any later petition successive); see also 28 U.S.C. § 9 2244(a)-(b).5 10 11 IV. 12 CONCLUSION AND ORDER In light of the foregoing, the Court ADOPTS the Report in its entirety (Doc. 9),

13 OVERRULES Petitioner's objections (Doc. 11), and DENIES Petitioner's motion for 14 stay and abeyance (Doc. 3). 15 17 18 19 20 21 22 23 24 25 26 27 28
28 U.S.C. § 2244(b)(2) provides that a claim presented in a second or successive habeas corpus application under § 2254 shall be dismissed unless: (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.
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Because the Petition is mixed and in order to avoid dismissal, Petitioner must 1.) First Option: File a Motion for Withdrawal and Abeyance. If Petitioner chooses this option, he must file a request for withdrawal and abeyance no

16 choose one of the following options (explained more fully above):

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1 2 3 4 5 6 7 8 9 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3.) 2.)

later than 30 days following the issuance of this order. Respondent may file a reply no later than 45 days following the issuance of this order. Second Option: Voluntarily Dismiss the Petition. If Petitioner chooses this second option, he must file dismissal papers no later than 30 days following the issuance of this order. Third Option: Formally Abandon Unexhausted Claims. If Petitioner chooses this third option, he must file a pleading with this Court no later than 30 days following the issuance of this order.

IT IS SO ORDERED.

12 DATED: November 23, 2010 Hon. Thomas J. Whelan United States District Judge

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