Huynh v. Lizarraga

Filing 20

REPORT AND RECOMMENDATION of United States Magistrate Judge regarding Petitioner's 7 MOTION for Stay and Abeyance filed by Philong Huynh. It is Ordered that no later than 3/25/2016, any party to this action may file written objections wi th the Court. It is further Ordered any Reply to the Objections shall be filed with the Court and served on all parties no later than ten (10) days from service of the filed Objections. Signed by Magistrate Judge David H. Bartick on 3/1/2016.(All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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PHILONG HUYNH,

Case No.: 15-CV-1924 BTM (DHB)
Petitioner,

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REPORT AND
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
REGARDING PETITIONER’S
MOTION FOR STAY AND
ABEYANCE

v.
J. LIZARRAGA,
Respondent.

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[ECF No. 7]

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On August 31, 2015, Petitioner, Philong Huynh (“Petitioner”), filed a Petition for

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Writ of Habeas Corpus. (ECF No. 1.)1 On September 21, 2015, Petitioner filed a Motion
for Stay and Abeyance. (ECF No. 7.) Respondent filed an opposition to Petitioner’s
motion on October 23, 2015 (ECF No. 11), and Petitioner filed a reply on November 16,
2015. (ECF No. 15.)
The Court has considered the above documents as well as the record as a whole.

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Based thereon, and for the reasons set forth below, the Court RECOMMENDS that
Petitioner’s Motion for Stay and Abeyance be DENIED.

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Page numbers for docketed materials cited in this Order refer to those imprinted by the Court’s
electronic case filing (“ECF”) system.
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15-CV-1564 CAB (DHB)

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I.

BACKGROUND

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Petitioner began federal habeas proceedings on August 31, 2015, when he filed his

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Petition for Writ of Habeas Corpus. (ECF No. 1.) Petitioner raises five claims in his

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Petition: (1) insufficient evidence; (2) actual innocence; (3) ineffective assistance of

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counsel; (4) violation of due process under the Fifth and Fourteenth Amendments; and (5)

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unreasonable search and seizure in violation of the Fourth Amendment. (Id.)

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On September 21, 2015, Petitioner filed a cursory motion for stay and abeyance

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indicating he wishes to “file new state petitions.” (ECF No. 7.) In opposition, Respondent

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contends the actual innocence claim in Ground Two is unexhausted. (ECF No. 11.)

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Respondent notes the remaining four claims appear to be exhausted.2 (Id.) Therefore,

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presumably Petitioner seeks to stay these proceedings while he exhausts Ground Two.

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Respondent contends that Petitioner is not entitled to a stay.

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II.

DISCUSSION

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A.

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Habeas petitioners who wish to challenge either their state court conviction, or the

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length of their confinement, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b),

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(c); Granberry v. Greer, 481 U.S. 129, 133-34 (1987). To exhaust state judicial remedies,

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a California state prisoner must present the California Supreme Court with a fair

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opportunity to rule on the merits of every issue raised in his or her federal habeas petition.

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28 U.S.C. § 2254(b), (c); Granberry, 481 U.S. at 133-34. Federal courts cannot consider

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petitions that contain both exhausted and unexhausted claims, often referred to as “mixed”

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petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding a district court must

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dismiss a federal habeas petition containing both unexhausted and exhausted claims). The

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filing of a mixed petition renders it subject to dismissal. Id.

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Legal Standard

On January 22, 2013, Petitioner filed a Petition for Review in the California Supreme Court, where he
raised claims similar to those in Grounds One and Four of the current Petition. (Lodgment No. 9.) On
December 22, 2014, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme
Court, where he raised claims similar to those in Grounds One, Three, Four, and Five of the current
Petition. (Lodgment No. 5.)
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There are two procedures available to stay federal proceedings when a Petitioner

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seeks to return to state court to exhaust an unexhausted claim: (1) the “stay and abeyance”

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procedure under Rhines v. Weber, 544 U.S. 269, 277-78 (2005); and (2) the “withdrawal

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and abeyance” procedure under Kelly v. Small, 315F.3d 1063 (9th Cir. 2003). In King v.

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Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit summarized the difference between

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the procedures as follows:

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Rhines allows a district court to stay a mixed petition, and does not require
that unexhausted claims be dismissed while the petitioner attempts to exhaust
them in state court. In contrast, the three-step procedure outlined in Kelly
allows the stay of fully exhausted petitions, requiring that any unexhausted
claims be dismissed.
King, 564 F.3d at 1139-40.

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In his motion for stay and abeyance, Petitioner did not specify whether he was

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requesting a stay under Rhines or under Kelly. However, in his reply, Petitioner requests

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the Court stay the Petition pursuant to Rhines. (ECF No. 15 at 3.)

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B.

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Under the Rhines procedure, the entire petition is stayed while the petitioner returns

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to state court to exhaust the unexhausted claims. Once all claims are exhausted, the district

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court will lift the stay and the petitioner will proceed with his petition. Id. at 275-76. To

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be eligible for a stay under Rhines, the petitioner must show: (1) there was good cause for

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his failure to exhaust his claims in state court, (2) that the unexhausted claims are

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potentially meritorious, and (3) that he has not engaged in intentionally dilatory litigation

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tactics. Id. at 278. In Rhines, the Supreme Court held that “stay and abeyance should be

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available only in limited circumstances” because staying a federal habeas petition frustrates

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the Antiterrorism and Effective Death Penalty Act’s (“AEDPA”) objective of encouraging

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finality by allowing a petitioner to delay the resolution of federal proceedings, and

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undermines AEDPA’s goal of streamlining federal habeas proceedings by decreasing a

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petitioner’s incentive to first exhaust all his claims in state court. Rhines, 544 U.S. at 277.

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As a threshold matter, “[b]ecause granting a stay effectively excuses a petitioner’s failure

Discussion

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to present his claims first to the state courts, stay and abeyance is only appropriate when

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the district court determines there was good cause for the petitioner’s failure to exhaust his

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claims first in state court. Moreover, even if a petitioner had good cause for that failure,

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the district court would abuse its discretion if it were to grant him a stay when his

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unexhausted claims are plainly meritless.” Id.

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Petitioner asserts good cause exists for his failure to exhaust because at the time he

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filed in state court, he did not yet have the evidence to support his claim of actual

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innocence. (ECF No. 15 at 1.) Petitioner also asserts that he encountered difficulties in

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gathering the evidence for his actual innocence claim due to being injured in prison,

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contracting valley fever, and suffering from depression. (Id. at 2.) Even assuming these

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conditions would constitute good cause for his failure to exhaust, the Court finds Petitioner

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cannot satisfy the second requirement under Rhines because his claim does not have

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potential merit.

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The United States Supreme Court has not recognized freestanding actual innocence

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as a basis for federal habeas relief. “Claims of actual innocence based on newly discovered

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evidence have never been held to state a ground for federal habeas relief absent an

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independent constitutional violation occurring in the underlying state criminal

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proceeding.” Herrera v. Collins, 506 U.S. 390, 400 (1993). In Herrera, the Court

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explained that its body of “habeas jurisprudence makes clear that a claim of ‘actual

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innocence’ is not itself a constitutional claim, but instead a gateway through which a habeas

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petitioner must pass to have his otherwise barred constitutional claims considered on the

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merits.” Id. at 404. “This rule is grounded in the principle that federal habeas courts sit to

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ensure that individuals are not imprisoned in violation of the Constitution – not to correct

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errors of fact.” Id. at 400. See also Schlup v. Delo, 513 U.S. 298, 313-315 (1995)

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(distinguishing procedural claims of innocence from substantive claims of innocence, and

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holding that a claim of actual innocence may be raised to avoid a procedural bar to

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consideration of the merits of a petitioner’s constitutional claims); House v. Bell, 547 U.S.

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518, 555 (2006) (declining to resolve the open question of whether freestanding actual
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15-CV-1564 CAB (DHB)

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innocence claims are possible).

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Here, Petitioner, like the petitioner in Herrera “does not seek excusal of a procedural

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error so that he may bring an independent constitutional claim challenging his conviction

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or sentence, but rather argues that he is entitled to habeas relief because newly discovered

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evidence shows that his conviction is factually incorrect.” Herrera, 506 U.S. at 404.

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Indeed, it does not appear, and Respondent has not argued, that Petitioner’s other four

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claims are procedurally barred. (See ECF No. 16.) Thus, Petitioner is not seeking to use

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his actual innocence claim as a gateway to have otherwise barred constitutional claims

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considered. Therefore, just as the Supreme Court reasoned in Herrera, Petitioner’s actual

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innocence claim does not state a ground for federal habeas relief.3 Herrera, 506 U.S. at

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504.

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Because Petitioner’s actual innocence claim is not cognizable on federal habeas

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review, Petitioner cannot show that his claim is “potentially meritorious” under Rhines.4

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In Herrera, the Supreme Court mentioned in dicta that there may be a possibility of a freestanding actual
innocence claim in extraordinary cases. The Court stated “that in a capital case a truly persuasive
demonstration of ‘actual innocence’ made after trial would render the execution of a defendant
unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a
claim.” Herrera, 506 U.S. at 417. The Court further noted that “the threshold showing for such an
assumed right would necessarily be extraordinarily high.” Id. Here, this is not a capital case, Petitioner
is not facing execution, and California law leaves open an avenue for pursuit of actual innocence claims.
See e.g. In re Clark, 5 Cal.4th 750, 766 (1993) (holding that successive or untimely state habeas petitions
may be considered if the petitioner can demonstrate that actual innocence based on newly discovered
evidence). Further, the Court finds the evidence Petitioner claims establishes actual innocence falls short
of the “extraordinarily high” threshold referenced in Herrera.

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The Court further finds that a stay is not appropriate under the alternative Kelly procedure. Under the
Kelly procedure, the petitioner: (1) must voluntarily dismiss all unexhausted claims from his federal
petition and request the court stay the case; (2) return to state court and exhaust those claims while the
federal court holds the fully exhausted claims in abeyance; and (3) seek leave to amend his federal petition
to add the newly exhausted claims. King v. Ryan, 564 F.3d 1133, 1139 (9th Cir. 2009) citing Kelly v.
Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003.) Under Kelly, the petitioner does not have to show good
cause. Id. at 1140. However, the Kelly procedure “does not eliminate the requirement that there must be
potential merit to the claim the petitioner wants to exhaust in state court.” Law v. McEwen, 2012 WL
7600468, *3 (C.D. Cal. Nov. 20, 2012). See also Gaddis v. Ryan, 2012 WL 5512564 at *2 (explaining
that “a proper exercise of discretion under Kelly would call for some suggestion on the record that the
claims to be exhausted and subsequently added had sufficient merit and likelihood of success in light of
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Accordingly, the Court RECOMMENDS that Petitioner’s motion for stay and abeyance

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be DENIED.

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III.

CONCLUSION

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The Court submits this Report and Recommendation to United States District Judge

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Barry Ted Moskowitz under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(d) of the

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United States District Court for the Southern District of California. For the foregoing

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reasons, this Court RECOMMENDS that Petitioner’s motion for stay and abeyance be

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DENIED.

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IT IS HEREBY ORDERED that no later than March 25, 2016, any party to this

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action may file written objections with the Court and serve a copy on all parties. The

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document should be captioned “Objections to Report and Recommendation.”

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IT IS FURTHER ORDERED any Reply to the Objections shall be filed with the

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Court and served on all parties no later than ten (10) days from service of the filed

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Objections. The parties are advised that failure to file objections within the specified time

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may waive the right to raise those objections on appeal of the Court’s Order. See Turner

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v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th

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Cir. 1991).

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IT IS SO ORDERED.
Dated: March 1, 2016

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any applicable procedural defenses, to merit the delay in the litigation.”). Because Plaintiff’s actual
innocence claim does not have potential merit, the case should not be stayed pursuant to Kelly.
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