(HC) Rubio v. Ndoh ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX ANTHONY RUBIO, Case No. 1:20-cv-00085-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO GRANT MOTION TO STAY AND HOLD IN 13 v. ABEYANCE PETITION FOR HABEAS CORPUS 14 ROSEMARY NDOH, ECF No. 2 15 Respondent. OBJECTIONS DUE IN FOURTEEN DAYS 16 ORDER DIRECTING CLERK TO ASSIGN 17 CASE TO DISTRICT JUDGE 18 Alex Anthony Rubio, a state prisoner without counsel, petitioned for a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. He raised two claims of trial court error and 20 provided evidence confirming that his claims were exhausted at the state level, as required by 21 § 2254(b). See id. at 49-75. Petitioner then moved, in a separate motion, for a stay and abeyance 22 of his petition, stating that he wanted to exhaust state-level remedies for an additional claim of 23 ineffective assistance of counsel. ECF No. 2. 24 Discussion 25 A petitioner in state custody proceeding with a federal habeas petition must exhaust state 26 judicial remedies before seeking federal habeas relief. See § 2254(b)(1); Murray v. Schriro, 882 27 F.3d 778, 807 (9th Cir. 2018). The exhaustion doctrine is based on comity; it gives the state court 28 1 the first opportunity to correct the state’s alleged constitutional deprivations. See Coleman v. 2 Thompson, 501 U.S. 722, 731 (1991). A petitioner can satisfy the exhaustion requirement by 3 providing the highest state court with a full and fair opportunity to consider each of his claims 4 before presenting it to the federal court. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). 5 The existence of a parallel state-level proceeding may justify our abstention from the case. See 6 Younger v. Harris, 401 U.S. 37 (1971). 7 In this circuit, two procedures for staying a petition may be available while a petitioner 8 exhausts his claims in state court. See Rhines v. Weber, 544 U.S. 269, 277 (2005); Kelly v. Small, 9 315 F.3d 1063, 1070-71 (9th Cir. 2002). Under Rhines, a stay and abeyance is available for 10 “mixed petitions,” or those containing both exhausted and unexhausted claims, upon a showing 11 of, inter alia, good cause for the partial delay in exhaustion.1 Rhines, 544 U.S. at 277. Here, 12 petitioner has not presented a mixed petition, but rather a fully-exhausted petition and a motion to 13 stay that refers to an unfiled, unexhausted claim. See ECF No. 1; ECF No. 2 at 1. Therefore, we 14 decline to analyze petitioner’s motion under Rhines.2 15 Unlike a Rhines stay, a Kelly stay is permitted for fully-exhausted petitions and does not 16 require a showing of good cause for delay. See King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 17 2009). Under Kelly, a case moves through three stages: first, the petitioner amends his petition to 18 delete any unexhausted claims; second, the court, in its discretion, stays the amended, fully- 19 exhausted petition, and holds it in abeyance while the petitioner has the opportunity to proceed to 20 state court to exhaust the deleted claims; and third, once the deleted claims have been exhausted 21 in state court, the petitioner may return to federal court and amend his federal petition, adding the 22 23 1 A Rhines stay is also available for fully-unexhausted petitions. See Mena v. Long, 813 F.3d 907 24 (9th Cir. 2016). 2 Even if petitioner had presented a mixed petition, Rhines requires a showing of “good cause” for 25 the delay in raising an unexhausted claim. See Rhines, 544 U.S. at 277-78. Here, petitioner cannot show good cause for his delay in exhausting his ineffective assistance of counsel claim; he 26 did not provide a “reasonable excuse, supported by evidence” to justify his failure to exhaust. See 27 Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). Petitioner was aware of the ground for his claim of ineffective assistance of counsel during his trial and had ample opportunity to raise the 28 claim on direct appeal. See ECF No. 2 at 1. 1 newly-exhausted claims. See Kelly, 315 F.3d at 1070-71 (citing Calderon v. U.S. Dist. Court 2 (Taylor), 134 F.3d 981, 986 (9th Cir. 1998)). 3 Here, because petitioner has submitted a fully-exhausted petition and has only made 4 reference to—without including—his unexhausted claim in his motion to stay, amendment of the 5 petition under Kelly’s first step is unnecessary. We thus consider whether to stay the petition, in 6 our discretion, under step two of Kelly. In support of his motion to stay, petitioner states that 7 “recent events have unfolded in which [p]etitioner’s trial attorney has acknowledged not giving 8 any advice to petitioner regarding his plea offer of 18-years.” ECF No. 2 at 1.3 Because a denial 9 of a stay at this point would likely foreclose the possibility of federal relief on petitioner’s 10 ineffective assistance of counsel claim, we recommend that this court stay the petition and hold it 11 in abeyance until petitioner has fully exhausted his claim. 12 If petitioner’s new claim is exhausted at the state level, he may then be able to proceed to 13 step three of Kelly by amending his federal petition to include the additional claim. However, 14 under Kelly, he will only be able to amend his petition with his newly-exhausted claim if that 15 claim is timely when amendment is sought. See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 16 2009). Unlike filing an application for state habeas relief, filing a federal habeas claim does not 17 toll AEDPA’s statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001). To be 18 timely, a claim must either (1) meet AEDPA’s statute of limitations requirements, see 28 U.S.C. 19 § 2244(d)4 or (2) “relate back” to claims contained in the original petition that were exhausted at 20 the time of filing. See King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009); Mayle v. Felix, 545 21 U.S. 644, 664 (2005). 22 23 3 As an exhibit, petitioner attached a letter from his father, sent to petitioner’s trial counsel, which allegedly summarizes a conversation between petitioner’s father and his trial counsel. ECF No. 2 24 at 4. In the letter, petitioner’s father characterizes his conversation with the counsel, stating that the counsel said he “remembered not advising [petitioner] to accept the plea bargain offer of 18 25 years, instead of taking a jury trial and risking a life sentence” and that his “only duty is to inform the client of the plea offer and nothing else.” Id. Petitioner did not attach a response letter from 26 the trial counsel. 27 4 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 28 such review.” 28 U.S.C. § 2244(d)(1)(A). 1 A claim that simply arises from a “the same trial, conviction, or sentence” does not 2 | necessarily relate back to the initial claims. See Mayle, 545 at U.S. 659. To “relate back,” the 3 | new claim must share a “common core of operative facts” with the claims in the pending petition. 4 | Id. Here, because petitioner’s initial claims attack the trial court’s actions and his new claim 5 | attacks his attorney’s actions, petitioner may have difficulty showing that these claims share a 6 || common core of operative facts. For that reason, we will require petitioner to notify this court of 7 | his intention to proceed under Kelly before we stay his petition under Kelly. 8 | Order 9 Petitioner is ordered to notify this court within 30 days of the service of this order whether 10 | he wishes to proceed with a stay under the Kelly procedure. If petitioner does not wish to stay his 11 | petition under Kelly, the original petition may proceed. ECF No. 1. The clerk of court is ordered 12 | to assign this case to a district judge who will review these findings and recommendations. 13 | Findings and Recommendations 14 We recommend that the court grant petitioner’s motion to stay. ECF No. 2. Under 28 15 | U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 16 | Court, Eastern District of California, we submit the findings and recommendations to the U.S. 17 | District Court judge presiding over the case. Within fourteen days of the service of the findings 18 | and recommendations, any party may file written objections to the findings and 19 || recommendations. That document must be captioned “Objections to Magistrate Judge’s Findings 20 | and Recommendations.” The presiding district judge will then review the findings and 21 | recommendations under 28 U.S.C. § 636(b)(1)(C). 22 73 IT IS SO ORDERED. 24 ( Waban Dated: _ February 21, 2020 25 UNIT#D STATES MAGISTRATE JUDGE 26 27 | No. 206. 28