(HC) Cabrera v. Godwin

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 OMAR CABRERA, Case No. 1:20-cv-01738-HBK 12 Petitioner, ORDER TO SHOW CAUSE WHY PETITIONER’S MOTION TO STAY 13 v. SHOULD NOT BE DENIED 14 RON GOODWIN, PEOPLE OF THE RESPONSE DUE IN THIRTY DAYS STATE OF CALIFORNIA, 15 (Doc. No. 3) Respondents. [18] 19 Petitioner Omar Cabrera, a state prisoner proceeding with counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2254 . (Doc. No. 1). Before the court is petitioner’s motion for a stay 21 and abeyance under Rhines. (Doc. No. 3); Rhines v. Weber, 544 U.S. 269 (2005). The court ordered 22 respondents to respond to the motion to stay (Doc. No. 4), and respondents filed a notice of non23 opposition to petitioner’s motion to stay. (Doc. No. 6). However, because petitioner has failed to 24 demonstrate that he meets the requirements of Rhines, the court will provide him with notice of his 25 options for how this case may proceed and order him to show cause why his motion to stay should 26 not be denied. [1] 2 I. BACKGROUND 3 Petitioner makes both exhausted and unexhausted claims for relief. (See generally Doc. 4 No. 1). Petitioner makes the following exhausted claims: (1) the trial court erred in finding a race5 neutral explanation for the prosecution’s use of a preemptive strike during jury selection; (2) the 6 trial court erred when it admitted certain prejudicial evidence; and (3) there was insufficient 7 evidence to support the jury’s finding on the “one strike” sentencing enhancement. (See Doc. No. 8 1 at 2-3). Petitioner seeks to exhaust the following unexhausted claims before the state courts: (1) 9 he received ineffective assistance of trial and appellate counsel; (2) the trial court imposed 10 excessive fines and fees; and (3) the trial court erred when it denied petitioner’s motion to substitute 11 counsel. (Doc. No. 3 at 2-3). 12 II. APPLICABLE LAW AND ANALYSIS 13 a. Rhines Stay 14 Staying a federal habeas petition “frustrates AEDPA’s objective of encouraging finality by 15 allowing a petitioner to delay the resolution of the federal proceedings” and “undermines AEDPA’s 16 goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust 17 all his claims in state court prior to filing his federal petition.” Rhines, 544 U.S. at 277 . Therefore, 18 a “stay and abeyance should be available only in limited circumstances.” Id. Under Rhines, a stay 19 and abeyance is available only where: (1) there is “good cause” for the failure to exhaust; (2) the 20 unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally engage 21 in dilatory litigation tactics. 544 U.S. at 277-78 . 22 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 23 exhaust.” Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Although good cause under Rhines 24 does not require a showing of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654 , 66125 62 (9th Cir. 2005), “unspecific, unsupported excuses for failing to exhaust—such as unjustified 26 ignorance—[do] not satisfy the good cause requirement,” Blake, 745 F.3d at 981 . Rather, “good 27 cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient 28 evidence, to justify” his failure to exhaust his claims. Id. at 982 . “An assertion of good cause 1 without evidentiary support will not typically amount to a reasonable excuse justifying a 2 petitioner’s failure to exhaust.” Id. Sister courts within our circuit have required, at a minimum, a 3 showing of some “circumstance over which [a petitioner] had little or no control” that prevented 4 him from asserting the unexhausted claim in state court. Riner v. Crawford, 415 F. Supp. 2d 1207 , 5 1211 (E.D. Nev. 2006); see Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005) 6 (adopting the “good cause” standard of procedural defaults in which “a petitioner ordinarily must 7 show that the default resulted from an objective factor external to the petitioner which cannot fairly 8 be attributed to him”). 9 Here, petitioner has not addressed the good cause requirement of Rhines in his motion to 10 stay. (See generally Doc. No. 3). Without an explanation for petitioner’s delay in exhaustion, the 11 court has no grounds to grant petitioner’s motion to stay under Rhines. Further, petitioner has failed 12 to address the other two prongs of Rhines—whether the unexhausted claims are not plainly 13 meritless and whether petitioner engaged in dilatory litigation tactics. If petitioner wishes to 14 proceed with a stay under Rhines, he must address all three prongs of Rhines in his response to this 15 order to show cause.1 16 b. Kelly Stay 17 An alternative procedure for staying a case exists in the Ninth Circuit—the Kelly stay. 18 See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). Under Kelly, a case moves through 19 three stages: first, the petitioner amends his petition to delete any unexhausted claims; second, the 20 court, in its discretion, stays the amended, fully-exhausted petition, and holds it in abeyance while 21 the petitioner has the opportunity to proceed to state court to exhaust the deleted claims; and third, 22 once the deleted claims have been exhausted in state court, the petitioner may return to federal 23 court and amend his federal petition, adding the newly-exhausted claims. See Kelly, 315 F.3d at 24 1070-71 (citing Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981 , 986 (9th Cir. 1998)). 25 However, under Kelly, a petitioner is only be able to amend his petition with his newly 26 exhausted claim if that claim is “timely” when amendment is sought. See King v. Ryan, 564 F.3d 27 1 The court notes that petitioner’s second unexhausted claim—that the trial court imposed excessive fines 28 and fees—is not cognizable on habeas review. See Bailey v. Hill, 599 F.3d 976, 981 (9th Cir. 2010). 1 1133, 1140-41 (9th Cir. 2009). Unlike filing an application for state habeas relief, filing a federal 2 habeas claim does not toll AEDPA’s statute of limitations. See Duncan v. Walker, 533 U.S. 167 , 3 181 (2001). To be timely, a claim must either (1) meet AEDPA’s statute of limitations 4 requirements, see 28 U.S.C. § 2244 (d)2 or (2) “relate back” to claims contained in the original 5 petition that were exhausted at the time of filing. See King, 564 F.3d at 1143 ; Mayle v. Felix, 545 6 U.S. 644 , 664 (2005). A claim that simply arises from “the same trial, conviction, or sentence” 7 does not necessarily relate back to the initial claims. See Mayle, 545 at U.S. 659. To “relate 8 back,” the new claim must share a “common core of operative facts” with the claims in the 9 pending petition. Id. 10 By this court’s calculation, petitioner had over four months left in his AEDPA limitations 11 period when he filed his state habeas petition seeking review of the unexhausted claims, thus 12 tolling the federal limitations period. Accordingly, it is possible that petitioner would be able to 13 take advantage of a stay under Kelly by dismissing his unexhausted claims now, exhausting his 14 claims at the state level, and returning to federal court within the remaining period of the AEDPA 15 limitations period after the state court renders its decision on petitioner’s unexhausted claims and 16 seeking to amend his petition with the now fully exhausted claims. Failing to amend the petition 17 to include these now exhausted claimed within the remaining period left on the AEDPA timeline 18 could prove fatal to these claims if the newly exhausted claims do not relate back to his original 19 claims. Upon a cursory review, it appears that the unexhausted new claims do not appear to share 20 a common core of operative facts with the original claims, as required by Kelly. Thus, petitioner 21 would need to amend his petition with the newly exhausted claims within the remaining time left 22 on the AEDPA clock, which would restart after these claims are fully exhausted in the state 23 courts. [26] 27 2 Generally, federal habeas claims are timely when filed within one year of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such 28 review.” 28 U.S.C. § 2244 (d)(1)(A). 1 c. Dismissal of Unexhausted Claims 2 In the alternative, petitioner may choose to dismiss his unexhausted claims, proceeding 3 | with his exhausted claims only. Absent any other procedural bars, this route will ensure that at 4 | least some of petitioner’s claims are considered by this court. 5 d. Voluntary Dismissal of Petition 6 Finally, petitioner may voluntarily dismiss his entire petition and refile the entire petition 7 | once all his claims are exhausted. As noted above, the AEDPA period within which petition must 8 | file his federal habeas petition is not yet expired and became tolled when petitioner filed his state 9 | habeas petition raising the unexhausted claims, assuming the state habeas petition was deemed 10 | properly filed at the state court level. Thus, petitioner has over four months remaining in the 11 | AEDPA limitations clock, which will not restart until the last state court renders it final decision 12 | onthe exhausted claims. Further, the new filing would not be considered second or successive. 13 | See Slack vy. McDaniel, 529 U.S. 473, 487 (2000). 14 Accordingly, it is ORDERED: 15 Within thirty days of the date of service of this order, petitioner is ordered to inform the 16 | court whether he wishes to proceed under Rhines or under Kelly, or whether he wishes to 17 | voluntarily dismiss his unexhausted claims or his entire petition without prejudice to refiling once 18 | his claims are exhausted. If petitioner wishes to proceed with a stay under Rhines, he must show 19 | cause why such a stay should not be denied. [20] IT IS SO ORDERED. [22] Dated: _ March 23, 2021 Mile. Wh fareh fackte 23 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE