(HC) Morales v. Covello

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 SONNY JAMES MORALES, Case No. 1:20-cv-00894-JDP 12 Petitioner, ORDER TO SHOW CAUSE WHY MOTION FOR STAY AND ABEYANCE SHOULD 13 v. NOT BE DENIED 14 A. COVELLO, RESPONSE DUE IN SIXTY DAYS 15 Respondent. ECF No. 1 [17] 18 Petitioner Sonny James Morales, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254 . ECF No. 1. This matter is before us for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must 21 dismiss a habeas petition if it “plainly appears” that the petitioner is not entitled to relief. See 22 Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124 , 23 1127 (9th Cir. 1998). Here, petitioner states one fully exhausted claim for relief: that the 24 evidence at trial was insufficient to support his conviction. ECF No. 1 at 5-6. 25 Also before us is petitioner’s motion for a stay and abeyance under Rhines. Id. at 40-46. 26 Petitioner seeks to exhaust two additional claims before the state courts: (1) that the prosecutor 27 failed to disclose exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), [28] 1 and (2) that petitioner received ineffective assistance of counsel at trial. Id. Because petitioner 2 has failed to demonstrate that he meets the requirements for a stay and abeyance under Rhines, we 3 will order him to show cause why his motion should not be denied. 4 Discussion 5 “Staying a federal habeas petition frustrates AEDPA’s objective of encouraging finality 6 by allowing a petitioner to delay the resolution of the federal proceedings. It also undermines 7 AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive 8 to exhaust all his claims in state court prior to filing his federal petition.” Rhines v. Weber, 544 9 U.S. 269 , 277 (2005). Therefore, a “stay and abeyance should be available only in limited 10 circumstances.” Id. Under Rhines, a stay and abeyance of a habeas petition is available where a 11 petitioner can show good cause for his failure to exhaust his claims in state court, that his claims 12 are not plainly meritless, and that he has not engaged in abusive litigation tactics.1 Id. at 278 . 13 Upon this showing, the petition may be stayed while petitioner exhausts his claims at the state 14 level. Once a petitioner has exhausted his claims, he may return to federal court with his fully 15 exhausted petition. 16 Although the Supreme Court has not defined what constitutes “good cause” for a Rhines 17 stay, in the Ninth Circuit, “good cause turns on whether the petitioner can set forth a reasonable 18 excuse, supported by sufficient evidence, to justify” the failure to exhaust.2 See Blake v. Baker, [19] 1 Although petitioner exclusively seeks a stay under Rhines, an alternative procedure for the stay 20 and abeyance of habeas petitions exists in our circuit under Kelly v. Small, 315 F.3d 1063 , 107071 (9th Cir. 2002). However, a stay under Kelly “does nothing to protect a petitioner’s 21 unexhausted claims from untimeliness.” See King v. Ryan, 564 F.3d 1133, 1141 (9th Cir. 2009). To be timely under Kelly, his new claims must either (1) meet AEDPA’s statute of limitations [22] requirements, see 28 U.S.C. § 2244 (d) or (2) “relate back” to the claims contained in the original 23 petition that were exhausted at the time of filing. See King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009). A claim that simply arises from “the same trial, conviction, or sentence” does not 24 necessarily relate back to the initial claims. See Mayle v. Felix, 545 U.S. 644, 659 (2005). To “relate back,” the new claim must share a “common core of operative facts” with the claims in the [25] pending petition. Id. Here, petitioner has waited until nearly the end of the federal statute of limitations period to file his federal habeas petition and his new claims do not appear to relate [26] back to his original claim. Therefore, a stay under Kelly would not likely provide petitioner the 27 relief he seeks. 2 Notably, “the first element of the Rhines test can easily be established to the extent [petitioners] 28 were without counsel” during the period relevant to state-level exhaustion in post-conviction [1] 745 F.3d 977, 980-82 (9th Cir. 2014). However, “[a]n assertion of good cause without 2 evidentiary support will not typically amount to a reasonable excuse justifying a petitioner’s 3 failure to exhaust.” Id. at 982 . Sister courts within our circuit have required, at a minimum, a 4 showing of some “circumstance over which [a petitioner] had little or no control” that prevented 5 him or her from asserting the unexhausted claim in state court. Riner v. Crawford, 415 F. Supp. 6 2d 1207, 1211 (E.D. Nev. 2006); see Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. 7 Cal. 2005 ) (adopting the “good cause” standard of procedural defaults in which “a petitioner 8 ordinarily must show that the default resulted from an objective factor external to the petitioner 9 which cannot fairly be attributed to him”). 10 Here, petitioner states that he had good cause for his failure to exhaust his claims because 11 his access to his prison’s law library has been restricted since March 2020 due to the COVID-19 12 pandemic. ECF No. 1 at 41. Although the recent restriction on petitioner’s access to the law 13 library is unfortunate, petitioner has provided no reasonable excuse, supported by sufficient 14 evidence, for his failure to exhaust his claims in a timely manner. Petitioner was convicted of his 15 crimes and sentenced to prison in January 2016, id. at 1, and the factual predicates of petitioner’s 16 unexhausted claims were discoverable at the time of his trial in 2015. Petitioner provides no 17 insight into any circumstances that may have prevented his more than three-year delay in seeking 18 to exhaust these claims. Moreover, petitioner has failed to directly address the second and third 19 requirements of Rhines—that his claims are not plainly meritless and that he has not engaged in 20 abusive litigation tactics. 21 Order 22 Within sixty days of the date of service of this order, petitioner is ordered to show cause 23 why his motion for a stay and abeyance should not be denied. Petitioner is directed to address all 24 three requirements of Rhines in his response. [27] proceedings. Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017). [28] LOU OMT VT op POR Ne AY Tt 5 IT IS SO ORDERED. ° yi, —N prssann — Dated: July 1, 2020 4 UNI STATES MAGISTRATE JUDGE [5] 6 | No. 206.