Torres v. McDowell

292 F.Supp.3d 983

Hector J. TORRES, Petitioner,

v.Neil MCDOWELL, Warden, Respondent.

Case No. CV 16–7244–JLS (JPR)

United States District Court, C.D. California.

Signed November 13, 2017

Hector J. Torres, Blythe, CA, pro se.

Jonathan J. Kline, Andrew Pruitt, CAAG—Office of the Attorney General California Department of Justice, Los Angeles, CA, for Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE

JOSEPHINE L. STATON, U.S. DISTRICT JUDGE

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and Report and Recommendation of U.S. Magistrate Judge. No objections to the Report and Recommendation have been filed, nor has Petitioner filed a request for a Kelly stay. The Court accepts the findings and recommendations of the Magistrate Judge.

IT THEREFORE IS ORDERED that Petitioner's motion to stay is denied, the Petition is dismissed as partially unexhausted, and Judgment be entered dismissing this action with prejudice.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

JEAN ROSENBLUTH, U.S. MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Josephine L. Staton, U.S. District Judge, under 28 U.S.C. § 636 and General Order 05–07 of the U.S. District Court for the Central District of California.

PROCEEDINGS

On September 15, 2016, Petitioner, apparently with the help of another inmate, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody, raising four claims: grounds one and two alleged trial-court jury-instruction error and grounds three and four raised ineffective-assistance-of-counsel claims.¹ He also filed a separate "Petition for Stay, and Abeyance," asking that the Petition be stayed to allow him to exhaust claims three and four, which he admits were not raised in state court. (See Mot. Stay at 1; Pet. at 9.)² Petitioner did not cite any authority in support of his request. (See generally Mot. Stay.) On December 19, 2016, Respondent filed opposition, arguing that Petitioner is not entitled to a stay under Rhines v. Weber, 544 U.S. 269, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), because he has not shown "good cause," and he is not entitled to one under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruling on other grounds recognized by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007), because claims three and four do not "relate back" to the exhausted claims of the Petition. Petitioner did not file a reply.

After determining that it needed further information and briefing about a habeas petition Petitioner appeared to have filed in the state superior court in September 2016, the Court ordered Respondent to lodge a copy of that petition and any ruling on it, inform the Court whether Petitioner had filed any other state-court petitions, and file a supplemental response addressing the impact on Petitioner's motion, if any, of Dixon v. Baker, 847 F.3d 714 (9th Cir. 2017), which was decided after Respondent had filed his opposition. On June 1, 2017, Respondent lodged a copy of the superior-court petition and that court's order denying it and filed supplemental opposition, arguing that Dixon does not apply and that because Petitioner apparently abandoned his state-court habeas proceedings after the superior court's denial, he is not entitled to a stay. Despite having been given the opportunity to do so, Petitioner did not file a supplemental reply.

For the reasons discussed below, the Court recommends that Petitioner's stay motion be denied.

DISCUSSION

I. Applicable Law

Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has exhausted the remedies available in state court. Exhaustion requires that the petitioner's contentions were fairly presented to the state courts, Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011), and disposed of on the merits by the highest court of the state, Greene v. Lambert, 288 F.3d 1081, 1086 (9th Cir. 2002). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).

Two procedures are available to a habeas petitioner who wishes to stay a pending federal petition while exhausting additional claims in state court: the Rhines procedure and the Kelly procedure. See King v. Ryan, 564 F.3d 1133, 1139–40 (9th Cir. 2003) (explaining differences between Kelly and Rhines stays). Under Rhines, a Court may stay a "mixed" federal petition—one that includes both exhausted and unexhausted claims—while the Petitioner returns to state court to exhaust his unexhausted claims; all claims remain pending in federal court and are protected from any statute-of-limitations issues. Rhines, 544 U.S. at 277–78, 125 S.Ct. 1528. Under Kelly, the petitioner voluntarily dismisses any unexhausted claims from the pending federal petition and only the exhausted claims are stayed; the petitioner may then seek to amend the dismissed claims into the petition after he has exhausted them in state court. King, 564 F.3d at 1135 ; see Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (noting that " Rhines applies to stays of mixed petitions" and Kelly to "stays of fully exhausted petitions" (emphasis omitted) ). Under Kelly, the newly exhausted claims are not necessarily protected from any time bar. See King, 564 F.3d at 1140–41. "In this regard, the Kelly procedure ... is a riskier one for a habeas petitioner because it does not protect a petitioner's unexhausted claims from expiring during a stay." Morris v. California, No. 2:11-cv-1051 MCE DAD P, 2012 WL 2358720, at *2 (E.D. Cal. June 20, 2012).

Rhines applies in "limited circumstances." See 544 U.S. at 277, 125 S.Ct. 1528. For a Rhines stay, the petitioner must show (1) good cause for his failure to earlier exhaust the claims in state court, (2) the unexhausted claims are not "plainly meritless," and (3) he has not engaged in "abusive litigation tactics or intentional delay." Id. at 277–78, 125 S.Ct. 1528. The Supreme Court has not precisely defined what constitutes "good cause" for a Rhines stay. See Blake v. Baker, 745 F.3d 977, 980–81 (9th Cir. 2014). The Ninth Circuit has found that good cause does not require "extraordinary circumstances." Jackson, 425 F.3d at 661–62. Rather, "good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify" the failure to exhaust. Blake, 745 F.3d at 982.

Under Kelly, the petitioner need not show good cause for a stay of totally exhausted claims. See King, 564 F.3d at 1135. But a stay under Kelly"will be denied when the court finds such a stay would be futile." Knowles v. Muniz, 228 F.Supp.3d 1009, 1016 (C.D. Cal. 2017) (citation omitted), appeal docketed, No. 17–55419 (9th Cir. Mar. 28, 2017). "Futility would exist if the petitioner seeks a stay to exhaust a meritless claim." Id. Further, a petitioner may amend a newly exhausted claim into a pending federal habeas petition after the expiration of the limitation period only if it shares a "common core of operative facts" with one or more of the claims in the pending petition. Mayle v. Felix, 545 U.S. 644, 664, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). A new claim "does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth." Id. at 650, 125 S.Ct. 2562.

II. Petitioner Has Failed to Show Good Cause for a Rhines Stay

Petitioner acknowledges that grounds three and four of the Petition are unexhausted. (See Mot. Stay at 1; Pet. at 9.) In those claims, he alleges that his trial and appellate counsel were ineffective. (Pet. at 9.) He acknowledges that the claims were not raised on direct appeal (id. ), and he indicates that at the time he filed his federal Petition he had not filed any habeas petitions in state court (id. at 10–11).

On September 15, 2016, however, the same day he constructively filed his federal Petition and motion to stay, Petitioner constructively filed a habeas petition in the state superior court raising grounds three and four.³ (See Lodged Doc. 2.) The superior court denied the petition on October 19, 2016, indicating that Petitioner's claims failed to state a prima facie case for relief, were or could have been raised on appeal and failed to establish an exception to the rule barring reconsideration,⁴ and contained vague or conclusory allegations. (See Lodged Doc. 3.) The superior court did not identify which reason for denial it applied to which claim. (Id. )

To exhaust state remedies for federal habeas review, a petitioner must "invok[e] one complete round of the State's established appellate review process." Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In California, the claims must ultimately be disposed of on the merits by the state supreme court. Greene, 288 F.3d at 1086. According to the California Appellate Courts Case Information website, see Cal. App. Cts. Case Info., http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=2& doc_id=2063530& doc_no=B252919 (last visited July 28, 2017), Petitioner has not filed a habeas petition in either the court of appeal or the supreme court; he has apparently abandoned his state-court exhaustion effort.

Nothing of which the Court is aware prevented him from filing a petition in the state court of appeal or supreme court, thus completing a round of state habeas review. Indeed, almost nine months have passed since the superior court denied his petition; Petitioner has not returned to the state courts to try to raise the claims with more particularity despite having been alerted to that deficiency in October 2016, and it is likely too late to do so now. See Evans v. Chavis, 546 U.S. 189, 191–92, 126 S.Ct. 846, 163 L.Ed.2d 684 (...