Figueroa v. Lea
Filing
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ORDER Adopting 15 Report and Recommendation; Granting in Part and Denying in Part 8 Motion to Stay and Abey. It is therefore ordered that Petitioner is not entitled to have his entire mixed petition stayed in federal court while he pursues his u nexhausted claims in state court. Therefore, if Petitioner intends to proceed with his exhausted claims in Federal Courtclaims one and twohe must file a notice of withdrawal of his unexhaustedclaimsclaims three through eightwithin 30 days of the date of this Order. However, Petitioner is advised that if he does not file a notice of withdrawal of his unexhausted claims within the time permitted, the Court will dismiss his entire federal habeas petition as mixed. Signed by Judge Michael M. Anello on 9/21/2011. (All non-registered users served via U.S. Mail Service)(leh)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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JOSE ALFREDO FIGUEROA,
CASE NO. 10 CV 2274 MMA (JMA)
Petitioner,
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ORDER ADOPTING REPORT
AND RECOMMENDATION OF
UNITED STATES MAGISTRATE
JUDGE;
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vs.
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[Doc. No. 15]
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GRANTING IN PART AND
DENYING PART PETITIONER’S
MOTION TO STAY AND ABEY
MELISSA LEA, Warden,
Respondent.
[Doc. No. 8]
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On November 3, 2010, Petitioner Jose Alfredo Figueroa, a state prisoner proceeding pro
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se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his
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February 1, 2008 state court conviction. [Doc. No. 1.] The following day, the Court dismissed the
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petition without prejudice for failure to pay the required filing fee or request leave to proceed in
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forma pauperis (“IFP”). [Doc. No. 3.] On November 29, 2010, Petitioner filed a motion to
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proceed IFP, which the Court granted on December 13, 2010. [Doc. Nos. 5, 6.] On February 16,
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2011, Petitioner filed the pending motion to stay and abey his entire federal habeas petition while
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he returns to state court to exhaust his remedies with respect to claims three through eight. [Doc.
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No. 8.] Respondent filed a response to Petitioner’s motion on April 27, 2011. [Doc. No. 13.] The
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matter was referred to United States Magistrate Judge Jan M. Adler for preparation of a Report
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and Recommendation under 28 U.S.C. § 636(b) and Civil Local Rule 72.1(d).
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PROCEDURAL BACKGROUND
The circumstances underlying Petitioner’s state court conviction are fully set forth in Judge
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Adler’s Report; Petitioner does not object to this portion of the Report. [Doc. No. 15, p.1-3.]
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Accordingly, the Court ADOPTS the portion of Judge Adler’s Report and Recommendation
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which recounts in detail the facts underlying Petitioner’s state court conviction and sentence, and
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the factual background of Petitioner’s case shall not be repeated here. [Id.]
The relevant procedural posture is as follows. Petitioner was convicted of four counts of
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sexual assault on February 1, 2008. [Doc. No. 1, p.2.] Petitioner filed a direct appeal, raising two
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grounds challenging his conviction: (1) the existence of prejudicial juror misconduct because
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female jurors might have seen the victim crying in the restroom while the court was in recess
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during Petitioner’s trial; and (2) violation of Petitioner’s constitutional rights for sentencing him to
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the upper term limits on two counts, based on facts not found by the jury. [Id. at p.2.] The
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appellate court affirmed Petitioner’s conviction. [Id. at p.18-30.] Petitioner subsequently filed a
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petition for review with the California Supreme Court, which was denied on February 3, 2010.
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[Id. at p.17.] Petitioner did not file any petitions in state court for collateral review of his
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conviction and sentence. [Id. at p.3-4.]
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On June 17, 2010, Petitioner filed a petition for a writ of certiorari with the United States
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Supreme Court. [Id. at p.16.] The Supreme Court denied the petition as untimely. [Id.]
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Specifically, the Supreme Court held that because the California Supreme Court denied
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Petitioner’s request for review on February 3, 2010, his petition to the Supreme Court was due on
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or before May 4, 2010. [Id.] Thereafter, on November 3, 2010, Petitioner filed his habeas petition
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in federal court, alleging eight grounds for relief. Petitioner concedes he only exhausted the first
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two grounds for relief in state court, and requests that this Court stay his “mixed” petition while he
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pursues claims three through eight in state court, which are admittedly unexhausted.1 [Id. at p.5.]
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DISCUSSION
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Judge Adler issued a well-reasoned and thorough Report recommending Petitioner’s
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motion to stay and abey be GRANTED IN PART and DENIED IN PART. [Doc. No. 15.] After
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receiving an extension of time, Petitioner filed his objections to the Report on September 13, 2011.
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[Doc. No. 18.] Respondent did not object to the Report, nor file a response to Petitioner’s
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objections.
Under 28 U.S.C. § 636(b)(1), in reviewing a magistrate judge’s report and
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recommendation, the district court “shall make a de novo determination of those portions of the
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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in part, the
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findings or recommendations made by the magistrate judge.” Here, Petitioner objects to the
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majority of the Report. [Doc. No. 18.] Primarily, Petitioner asserts Judge Adler misconstrued the
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relief Petitioner seeks in his motion to stay and abey, and failed to address whether Petitioner may
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file a protective petition in accordance with Pace v. DiGuglielmo, 544 U.S. 408 (2005). Petitioner
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asserts he does not seek to invoke the “withdrawal and abeyance” procedure set forth in Kelly v.
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Small, 315 F.3d 1063 (9th Cir. 2003),2 which he asserts has not been upheld (nor overruled) by the
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Supreme Court.
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The Court has considered the merits of each of Petitioner’s objections, as well as
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Petitioner’s request that the Report and Recommendation be rejected as a whole. With respect to
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Petitioner’s objections to the findings of fact detailed in the Report, the Court overrules the
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objections, as they are amply supported by the record. Petitioner’s objections to the conclusions of
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law are similarly without merit, and are therefore, overruled. Judge Adler identified the correct
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legal standards, applied each standard correctly, considered relevant case law, and reached sound
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conclusions that this Court has no reason to reject.
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Claims three through eight allege constitutional violations that occurred during Petitioner’s
trial in state court. [See Doc. No. 1, p.8-13.]
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Overruled in unrelated part as stated in Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir.
2007).
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Notably, the Supreme Court’s decision in Pace does not contravene Judge Adler’s
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recommendation. In fact, Pace supports Judge Adler’s conclusion that Petitioner is not entitled to
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invoke the “stay and abey” procedure outlined in Rhines v. Weber, 544 U.S. 269 277-78 (2005),
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because Petitioner has not shown good cause for his failure to exhaust claims three through eight.
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These five unexhausted claims arise from facts that occurred during Petitioner’s trial in state court.
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Petitioner admits he was aware of the circumstances giving rise to these five claims, but indicates
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he did not pursue them until now because he was unaware of the “legal basis of those claims.”
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[Doc. No. 18, p.14.] It is well-established, however, “that ignorance of the law, even for an
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incarcerated pro se petitioner, generally does not excuse prompt filing.” Raspberry v. Garcia, 448
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F.3d 1150, 1154 (9th Cir. 2006) (quoting Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)).
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Petitioner offers no explanation why he was previously unaware of the legal grounds for his five
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additional bases for relief, nor provides any information that would demonstrate good cause for the
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delay. Thus, on the current record, Petitioner’s failure to pursue the five unexhausted claims in
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state court cannot be excused.
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Accordingly, Plaintiff has failed to satisfy at least one requirement set forth in Rhines and
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Pace—namely, that good cause exists for his failure to exhaust the claims in state court before
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filing his habeas petition in federal court. Although Petitioner asserts he was confused as to
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whether his state petition would be timely, his confusion regarding timeliness does not remedy the
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underlying unexplained lack of diligence in pursuing the additional claims earlier. As the
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Supreme Court has cautioned, “a stay-and-abeyance should be available only in limited
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circumstances, and is appropriate only when the district court determines that there was ‘good
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cause’ for the failure to exhaust.” Jackson v. Roe, 425 F.3d 654, 661 (9th Cir 2005) (quoting
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Rhines, 544 U.S. at 277). Here, absent good cause for Petitioner’s delay, Judge Adler correctly
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concluded Petitioner is not entitled to have his entire federal petition stayed while he pursues his
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unexhausted remedies in state court. The possibility that Petitioner may ultimately be barred from
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pursuing the additional grounds for relief in federal court, alone, does not warrant staying the
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entire federal petition.
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Judge Adler correctly recommended that Petitioner withdraw his unexhausted claims
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(claims three through eight) so he can pursue them in state court, and that Petitioner’s exhausted
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claims (claims one and two) be held in abeyance while Petitioner exhausts his state remedies on
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the remaining claims. Accordingly, having reviewed the Report and Recommendation and the
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files and records herein, the Court ADOPTS the Report and Recommendation in its entirety.
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Petitioner’s motion to stay and abey is GRANTED IN PART with respect to his exhausted first
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and second grounds for relief. Petitioner’s motion to stay and abey is DENIED IN PART with
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respect to claims three through eight, which have not been exhausted, because Petitioner failed to
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demonstrate good cause for his delay in pursuing these additional grounds for relief.
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IT IS THEREFORE ORDERED:
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That for the reasons set forth above, and in Judge Adler’s Report, Petitioner is not entitled
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to have his entire mixed petition stayed in federal court while he pursues his unexhausted claims in
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state court. Therefore, if Petitioner intends to proceed with his exhausted claims in federal
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court—claims one and two—he must file a notice of withdrawal of his unexhausted
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claims—claims three through eight—within 30 days of the date of this Order. Upon receipt
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of Petitioner’s notice of withdrawal, the Court shall hold exhausted claims one and two in
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abeyance while Petitioner returns to state court to exhaust the remaining claims. However,
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Petitioner is advised that if he does not file a notice of withdrawal of his unexhausted claims
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within the time permitted, the Court will dismiss his entire federal habeas petition as mixed.
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IT IS SO ORDERED.
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DATED: September 21, 2011
Hon. Michael M. Anello
United States District Judge
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