Reyes v. Lizzaraga

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 JUVENAL ANGEL REYES, Case No. 18-cv-04388-EMC 8 Petitioner, ORDER GRANTING PETITIONER’S 9 v. REQUEST TO STAY PROCEEDINGS, AND DENYING RESPONDENT’S 10 JOE LIZZARAGA, MOTION TO DISMISS 11 Respondent. Docket No. 40 — 12 — — 13 — 14 I. INTRODUCTION 15 Petitioner Juvenal Angel Reyes is currently serving a sentence for life without parole and a 16 consecutive term of four years for convictions on eight counts in Santa Clara County Superior 17 Court. He filed a federal habeas corpus petition with this Court, as well as an amended petition. 18 Docket Nos. 1, 35. Mr. Reyes acknowledges that several of the claims in his amended petition 19 have not been exhausted in state court, and, therefore, the amended petition is a “mixed petition.” 20 Docket No. 35 (“Am. Pet.”) ¶ 8. He requests the Court to employ the stay-and-abeyance 21 procedure, pursuant to Rhines v. Weber, 544 U.S. 269 (2005), to permit him to exhaust his 22 unexhausted claims. Id. Now pending is Respondent’s motion to dismiss several of the claims in 23 Reyes’s amended petition for writ of habeas corpus for failure to exhaust state remedies and as 24 untimely. Docket No. 40 (“MTD”). However, Respondent agrees that Plaintiff is entitled to have 25 his petition stayed and held in abeyance to permit Petitioner to exhaust at least one claim in state 26 court. See Docket No. 46 (“Reply”) at 20-21. 27 For the following reasons, the Court DENIES Respondent’s motion to dismiss and 1 exhausts his unexhausted claims in state court. 2 II. BACKGROUND 3 On February 6, 2011, Petitioner, Juvenal Angel Reyes, was charged with the following 4 crimes: 1) kidnapping for extortion; 2) kidnapping for robbery; 3) torture; 4) assault with a deadly 5 weapon; 5) criminal threats; 6) first degree robbery of an inhabited place committed in concert; 7) 6 first degree burglary; 8) grand theft person; 9) theft or unauthorized use of a vehicle; and 10) arson 7 of property of another. Docket No. 12-5 at 72-81 (“Exhibit 1 CT Vol. 3, Answer to Order to Show 8 Cause”). A jury in the Santa Clara County Superior Court convicted Mr. Reyes on counts one 9 through eight, and acquitted him on counts nine and ten. Docket No. 12-3 at 141-150 (“Exhibit 1 10 CT Vol 1., Answer to Order to Show Cause”). Mr. Reyes was sentenced to life without parole on 11 count one and a consecutive term of four years on count seven. Id. at 158-164. Sentences for the 12 remaining counts were stayed. Id. 13 On June 28, 2017, the California Court of Appeal affirmed the convictions. Docket No. 14 12-16 at 156-193 (“Exhibit 3-8, Answer to Order to Show Cause”). On July 24, 2017, Mr. Reyes’ 15 appellate counsel filed a petition for review with the California Supreme Court. The petition 16 raised two claims: 17 1) Whether the pattern instruction on natural and probable consequences accurately and adequately instructs on the concept of 18 supervening causation when that concept is necessary to the jury’s understanding of the applicable principles of law and defense theory 19 of the case. 20 2) Whether the pattern instruction on coconspirator liability accurately and adequately instructs on the concept of actions that 21 were the fresh and independent product of the minds of those committing unintended, nontarget felonies, outside of or foreign to, 22 the common design, causation when that concept is necessary to the jury’s understanding of the applicable principles of law and defense 23 theory of the case. 24 Id. at 195-266. On September 13, 2017, the California Supreme Court denied the petition. Id. at 25 269. These are the only claims that Mr. Reyes has raised to the California Supreme Court. 26 Docket No. 35 (“Am. Pet.”) ¶ 15; 43 at 4 (“Opp. to MTD”). 27 Petitioner Angel Reyes filed a timely pro se habeas corpus petition and a motion to 1 five claims in this original petition. Docket No. 1. As to claim three, he alleged that the jury 2 instructions were erroneous for failing to include an instruction on the specific intent required for 3 the six nontarget felonies. Id. at 6. As to claim five, he alleged that the instruction on 4 coconspirator liability was erroneous because 1) it was not supported by substantial evidence, and 5 2) it failed to inform the jury that in order to find Mr. Reyes guilty, the six nontarget felonies must 6 not be the product of a fresh and independent idea outside of the common plan of the conspiracy. 7 Id. at 9. Respondent and Petitioner’s counsel agree that the other claims in the pro se complaint 8 were less clearly stated. Docket No. 12 (“Answer to Orig. Pet.”) at 5; Opp. to MTD at 4. A 9 summary list of claims follows: 10 Claims Raised in Original Petition: 11 Claim 1: Relevant procedural background: the challenged instructions; 12 Claim 2: Reviewability of the instructions and standards of review; 13 Claim 3: Instruction on the six nontarget felonies did not require additional instruction on 14 specific intent; 15 Claim 4: Instruction on natural and probable consequences doctrine did not usurp the jury’s 16 factfinding role regarding the foreseeability of the unintended acts; 17 Claim 5: Instruction on coconspirator liability was supported by substantial evidence and did 18 not require additional explanation of limiting principle based on a fresh and independent idea 19 outside of foreign to (sic) the conspiracy design. 20 See generally Docket No. 1. 21 On December 28, 2018, Respondent filed an answer to the order to show cause. Docket 22 No. 12. Respondent noted at the outset that it was difficult to discern what federal claims 23 petitioner was asserting, but liberally construed the claims set forth in the pro se petition. Docket 24 No. 12-1 at 10. Adopting that liberal approach, respondent construed the petition as attacking the 25 decision of the California Court of Appeal rejecting three jury instruction claims as an erroneous 26 and unreasonable application of clearly established Supreme Court precedent. Id. Respondent 27 then argued that the ruling of the appellate court on each of the issues presented to it was based 1 unreasonable application of clearly established Supreme Court precedent. Id. at 11-23. 2 Thereafter, on June 7, 2019, Mr. Reyes filed a pro se petition for writ of habeas corpus 3 with the Santa Clara County Superior Court, raising three claims: 1) that the jury instructions were 4 erroneous because they failed to include the specific intent required for the six nontarget felonies; 5 2) that no substantial evidence supported the jury instructions; and 3) that his LWOP sentence was 6 disproportional and unconstitutional under the Eighth Amendment. See Docket 35-1. On May 5, 7 2020, the Santa Clara County Superior Court denied Mr. Reyes’ claims. Docket No. 35-2. Mr. 8 Reyes did not appeal the Superior Court’s order of denial. Am. Pet. ¶ 28. 9 On September 9, 2019, this Court determined that the interests of justice required 10 appointment of counsel for Petitioner to assist in his federal habeas proceedings and so ordered. 11 See Docket No. 13. On December 5, 2019, Mr. Reyes, now represented by counsel, was granted 12 leave to file an amended habeas corpus petition in this Court. Docket Nos. 17, 18. On August 25, 13 2021, Petitioner filed an amended petition raising 12 claims. See generally Am. Pet. Petitioner 14 concedes that only Claim 3 was raised and denied by the California Supreme Court. Id. ¶ 8. 15 Claims 1, 2, and 4 correspond to claims that were presented to the California Court of Appeal, but 16 were not raised in the petition for review to the California Supreme Court. Id.; Exhibit 1 CT Vol. 17 3, Answer to Order to Show Cause, at 127-154; Exhibit 3-8, Answer to Order to Show Cause, at 18 195-266. Claim 5 corresponds to a claim that was raised with the Santa Clara County Superior 19 Court in 2019 and denied in 2020, but has yet to be appealed. Opp. to MTD at 47-52. And lastly, 20 claims 6-12 are new claims that have not been raised in any state court proceeding. Am. Pet. ¶ 8. 21 A summary list of claims follows: 22 Claims Raised in Amended Petition: 23 Claim 1: The trial court failed to properly instruct the jury regarding the requisite intent to 24 convict Mr. Reyes of aggravated kidnapping for extortion; 25 Claim 2: The trial court failed to properly instruct the jury regarding the requisite intent to 26 convict Mr. Reyes of robbery in concert; 27 Claim 3: The state court decision finding the coconspirator liability instruction sufficient was 1 Claim 4: The evidence was insufficient to support a jury instruction on coconspirator 2 liability, and no rational jury could have convicted Mr. Reyes of the six violent felonies under that 3 theory; 4 Claim 5: Mr. Reyes’ sentence of life without the possibility of parole constitutes cruel and 5 unusual punishment in violation of the eighth amendment; 6 Claim 6: Due process requires reversal of Mr. Reyes’ conviction for the six violent Felonies; 7 Claim 7: Trial counsel was ineffective in failing to object to calcrim 402 and 417, and in 8 failing to request a jury instruction regarding the intent elements of sections 209(a) and 9 213(a)(1)(A); 10 Claim 8: Trial counsel was ineffective in failing to request a pinpoint instruction of the 11 Kauffman limitation (People v. Kauffman, 152 Cal. 331, 334 (1907)); 12 Claim 9: Because the evidence was insufficient to support Mr. Reyes’s conviction for 13 kidnapping for extortion, his conviction under count one and sentence to LWOP constitute a 14 violation of due process; 15 Claim 10: Because the evidence was insufficient to support Mr. Reyes’s conviction for 16 torture, his conviction under count three constitutes a violation of Due Process; 17 Claim 11: Because the evidence was insufficient to support the asportation requirement of 18 kidnapping to commit robbery, Mr. Reyes’ conviction under Count Two constitutes a violation of 19 Due Process; 20 Claim 12: Cumulative errors. 21 See generally Am. Pet. 22 Initially, Respondent filed a motion to dismiss 11 of the 12 claims in the amended petition 23 (all claims other than Claim 3, which Respondent agrees is exhausted and timely) that Respondent 24 contends are unexhausted and untimely. See MTD. However, in Respondent’s reply brief, he 25 “does not contest the applicability of equitable tolling to Claim 5” – Petitioner’s argument that his 26 life without parole sentence is cruel and unusual because it is disproportionate to his culpability in 27 light of statutory changes in California law—and Respondent concedes that these proceedings 1 III. LEGAL STANDARD 2 A federal court may not grant habeas relief until a petitioner has exhausted available state 3 remedies with respect to each claim. 28 U.S.C. § 2254 (b); Picard v. Connor, 404 U.S. 270 , 272 4 (1971). A federal constitutional claim is exhausted when it has been “fairly presented” to the 5 highest state court and that court has had a meaningful opportunity to apply controlling legal 6 principles to the facts underlying the claim. Picard, 404 U.S. at 276-77 . 7 The Supreme Court follows a rule of “total exhaustion,” requiring that all claims in a 8 habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 9 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition containing 10 both exhausted and unexhausted claims so that the petitioner may exhaust his claims in state court 11 without running afoul of the one-year statute of limitations imposed by the Antiterrorism and 12 Effective Death Penalty Act of 1996 (“AEDPA”). Rhines, 544 U.S. at 273-75 . A district court 13 must stay a mixed petition if: (1) the petitioner has good cause for his failure to exhaust his claims, 14 (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that the 15 petitioner intentionally engaged in dilatory tactics. Id. at 278 . 16 Moreover, “Rhines does not state, or suggest, that every unexhausted claim in the petition 17 must satisfy, individually, the ‘good cause’ and ‘potentially meritorious’ requirements before a 18 stay is permitted.” Weber v. Baker, No. 3:11-CV-0104-PMP-WGC, 2012 WL 4911778 , at *2 (D. 19 Nev. Oct. 15, 2012). “The efficient approach is for the court to address the petitioner's motion for 20 stay before reaching respondents' exhaustion arguments as to each individual claim.” Id. “If a 21 stay is warranted with respect to any single claim, the court need not conduct a claim-by-claim 22 exhaustion analysis regarding the remaining claims." 23 IV. DISCUSSION 24 There is no dispute that Petitioner’s amended petition is a “mixed petition.” See Am. Pet. ¶ 25 8. Petitioner has exhausted only Claim 3; Claims 1, 2 and 4-12 have not been exhausted. Id. The 26 parties are at odds over several issues, including (1) whether Respondent, in answering Plaintiff’s 27 initial pro se habeas petition, has waived Petitioner’s obligation to exhaust Claims 1, 2 and 4 in the 1 holding this case in abeyance to permit Plaintiff to exhaust his claims in state court; and (3) 2 whether Claims 6-12 of the amended petition should be dismissed as untimely because they were 3 filed after the one-year statute of limitation under 28 U.S.C. § 2244 (d)(1) and do not qualify for 4 equitable or statutory tolling. 5 However, the Court need not resolve these disputes at this juncture in light of 6 Respondent’s concession that Petitioner is entitled to equitable tolling on Claim 5 and 7 Respondent’s request that further proceedings in this action “be stayed to permit petitioner to 8 exhaust Claim 5.” Reply at 20. Indeed, the parties agree that these proceedings should be stayed 9 and held in abeyance while Petitioner exhausts Claim 5 in state court. Therefore, Respondent’s 10 express non-opposition to permitting Petitioner to exhaust Claim 5 and Respondent’s express 11 request that the Court stay these proceedings to permit Petitioner to do so, id. at 19-20 , warrants, 12 in practical terms, application of Rhines’s stay-and-abeyance procedure. 13 As this Court has previously recognized, “[i]f a stay is warranted with respect to any single 14 claim, the court need not conduct a claim-by-claim exhaustion analysis regarding the remaining 15 claims.” See Melendez v. Arnold, No. 15-CV-03753-EMC, 2016 WL 913388 , at *8 (N.D. Cal. 16 Mar. 10 , 2016) (citation omitted); see also Byford v. Baker, No. 3:11-CV-00112-JCM, 2013 WL 17 431340, at *2 (D. Nev. Feb. 1, 2013) (“Rhines does not state, or suggest, that every unexhausted 18 claim in the petition must satisfy, individually, the ‘good cause’ and ‘potentially meritorious’ 19 requirements before a stay is permitted. Indeed, the rationale for permitting a stay would apply 20 with more force to a petition in which only one of the unexhausted claims meets the Rhines 21 requirements, but is likely meritorious, than it would to a petition in which all the unexhausted 22 claims meet the Rhines requirements, but none are more than potentially meritorious.”). 23 Therefore, because Respondent agrees that these proceedings should be stayed and Petitioner be 24 allowed to pursue exhaustion as to Claim 5 in state court, rather than assess the Rhines factors as 25 to each of the eleven unexhausted claims, the Court permits petitioner to exhaust all eleven of his 26 unexhausted claims (Claims 1, 2, 4, 5-12). Weber, 2012 WL 4911778 , at *2 (“The efficient 27 approach is for the court to address the petitioner's motion for stay before reaching respondents' 1 whether the exhaustion requirement has been waived as to Claims 1, 2 and 4 is immaterial, for 2 now, as Petitioner will have the opportunity to pursue exhaustion of those claims. 3 The Court declines to address Respondent’s timeliness arguments as to claims 6-12 at this 4 juncture, as it is unnecessary to do so before the state court has an opportunity to address those 5 claims. See Melendez, No. 15-CV-03753-EMC, 2016 WL 913388 at *8-9 (denying respondent’s 6 motion to dismiss on the basis of timeliness and, instead, granting petitioner’s request for Rhines 7 stay). The Court takes no position on the timeliness or merits of Petitioner’s unexhausted claims. 8 Respondent is free to raise arguments on both grounds before the state court and, again, before this 9 Court if and when Petitioner exhausts his claims and these proceedings re-commence. 10 Finally, Petitioner’s counsel notes that Mr. Reyes continues to be without counsel in the 11 state courts, and, although Petitioner’s counsel was appointed by this Court to represent Mr. Reyes 12 in connecting with these federal proceedings pursuant to 18 U.S.C. § 3006A(a)(2)(B) “interests of 13 justice,” see Docket No. 13, counsel has not been authorized to represent Mr. Reyes in state court. 14 Opp. at 59. Petitioner’s counsel requests that the Court appoint him to represent Mr. Reyes in 15 exhausting his unexhausted claims in state court, because those state court proceedings are 16 inextricably intertwined with this federal proceeding. Id. Respondent does not respond or 17 otherwise take a position on this request. 18 Petitioner cites no authority for the Court to appoint counsel for Petitioner’s state court 19 proceedings. While it may be argued that such a request could be construed as made pursuant to 20 18 U.S.C. § 3006A(c) (“A person for whom counsel is appointed shall be represented at every 21 stage of the proceedings from his initial appearance before the United States magistrate judge or 22 the court through appeal, including ancillary matters appropriate to the proceedings”) (emphasis 23 added)), the Ninth Circuit as never so held. The Eleventh Circuit has cast doubt that § 3006A(c) 24 encompasses state collateral-review proceedings. In re Lindsey, 875 F.2d 1502, 1508 (11th Cir. 25 1989) (“Because those proceedings will be convened under the authority of the State of Alabama, 26 we conclude that they are not ‘ancillary matters’ to which section 3006A extends the right to a 27 federally-appointed lawyer and/or psychiatrist.”). The Court declines to appoint counsel to 1 V. CONCLUSION 2 For the foregoing reasons, Respondent’s motion to dismiss the first amended petition for 3 writ of habeas corpus, is DENIED, and Petitioner's request for stay and abeyance is GRANTED 4 and this matter is STAYED. 5 Ninety days after the entry of this order, and every 180 days thereafter until proceedings in 6 his state exhaustion case are completed, Petitioner shall serve and file in this Court a brief report 7 updating the Court and the parties on the status of his state habeas action(s). No later than 30 days 8 after proceedings in his state case are completed, Petitioner shall serve and file notice that 9 proceedings are completed. 10 This order disposes of Docket No. 40. — 11 — 12 IT IS SO ORDERED. — 13 — 14 Dated: August 3, 2022 — 15 — 16 ______________________________________ EDWARD M. CHEN 17 United States District Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 —