(HC)Tran v. Baughman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY VAN TRAN, No. 2:17-cv-1925 JAM KJN P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 DAVID BAUGHMAN, 15 Respondent. 16 17 Petitioner is a state prisoner, proceeding pro se, with a petition for writ of habeas corpus 18 challenging his 2012 conviction. On February 11, 2020, the undersigned recommended that the 19 original petition be denied. On April 25, 2020, petitioner’s motions to amend1 and for stay were 20 denied without prejudice. Petitioner has now renewed his motion to stay, and also filed a notice 21 of exhaustion. As set forth below, petitioner’s motion for stay should be denied. 22 Plaintiff’s Unexhausted Claim 23 In his notice, petitioner claims that on May 11, 2020, petitioner filed his petition for writ 24 of habeas corpus in the California Supreme Court. (ECF No. 27.) Petitioner states that he seeks 25 1 If a new petition is filed when a previous habeas petition is still pending before the district court without a decision having been rendered, then the new petition should be construed as a motion to 26 amend the pending petition. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). The Woods 27 holding is not extended to a situation where the district court has ruled on the initial petition, and proceedings have begun in the Court of Appeals. Beaty v. Schriro, 554 F.3d 780, 782-83 & n.1 28 (9th Cir. 2009), cert. denied, 130 S. Ct. 364 (2009). 1 judicial review of the state appellate court’s decision on the claims raised in the instant petition, 2 and will file his claim in this court following the California Supreme Court’s decision. (ECF No. 3 27 at 1.) Petitioner did not provide any state court case numbers, copies of a petition filed in 4 either the California Court of Appeal or the California Supreme Court, or a copy of the decision 5 by the California Court of Appeal. In his motion for stay, petitioner identifies the unexhausted 6 claim as his due process rights were violated when the jury’s special circumstances finding was 7 unsupported by the evidence to prove beyond a reasonable doubt that petitioner was the actual 8 shooter. (ECF No. 26 at 3.) 9 Motion for Stay 10 In his motion for stay, petitioner now seeks stay and abeyance under Rhines v. Weber, 11 544 U.S. 269 (2005). (ECF No. 26.) No opposition was filed by respondent. 12 A district court may, in limited circumstances, stay a mixed petition pending exhaustion of 13 unexhausted claims if: (1) “the petitioner had good cause for his failure to exhaust;” (2) “his 14 unexhausted claims are potentially meritorious;” and (3) “there is no indication that the petitioner 15 engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278; Mena v. Long, 813 16 F.3d 907, 912 (9th Cir. 2016) (finding courts also have discretion to stay and hold in abeyance 17 fully unexhausted petition under Rhines). Each of these three conditions must be satisfied 18 because, as the court emphasized, “even if a petitioner had good cause for that failure, the district 19 court would abuse its discretion if it were to grant him a stay when his unexhausted claims are 20 plainly meritless.” Rhines, 544 U.S. at 277. 21 “The case law concerning what constitutes ‘good cause’ under Rhines has not been 22 developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v. 23 Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good 24 cause to excuse a petitioner’s failure to exhaust.”)) The Supreme Court has addressed the 25 meaning of good cause only once, stating in dicta that “[a] petitioner’s reasonable confusion 26 about whether a state filing would be timely will ordinarily constitute ‘good cause’” to excuse his 27 failure to exhaust. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines, 544 U.S. at 28 278). The Ninth Circuit has provided limited guidance. Under Ninth Circuit law, the “good 1 cause” test is less stringent than an ‘extraordinary circumstances’ standard. Jackson v. Roe, 425 2 F.3d 654, 661-62 (9th Cir. 2005). 3 Initially, petitioner attempts to argue that his unexhausted claim is contained in the instant 4 petition, rendering it a mixed petition and requiring the court to grant petitioner leave to either 5 return to state court to exhaust the unexhausted claim or abandon the unexhausted claim. (ECF 6 No. 26 at 2.) Petitioner is mistaken. Petitioner raised four claims in the instant petition: two 7 claims related to the alleged violation of petitioner’s right against self-incrimination (claims I and 8 III); and his other two claims concerned the admission of evidence (claims II and IV). (ECF No. 9 1.) Petitioner did not raise either a due process claim or an insufficiency of the evidence claim in 10 the context of the special circumstances finding in the instant petition. (Id.) Indeed, petitioner 11 affirmatively pled that he fully exhausted each of the four claims presented in the instant petition. 12 (ECF No. 1 at 7-17.) Thus, the instant petition is not a mixed petition, but is fully exhausted. 13 In the April 30, 2020 order, the court addressed petitioner’s request for stay under Kelly v. 14 Small, 315 F.3d 1063 (9th Cir. 2003), but also provided petitioner with the conditions he must 15 meet in order to obtain a stay under Rhines. (ECF No. 25 at 2 n.2.) In the instant motion, 16 petitioner failed to address each condition required under Rhines. Petitioner fails to demonstrate 17 good cause for his failure to earlier exhaust his new claim. Indeed, he offers no explanation for 18 his failure to include the claim in the instant petition. He argues that this “unexhausted claim is 19 potentially meritorious because it raises a violation of his constitutional right to due process,” 20 which is insufficient to demonstrate the claim’s merit. (ECF No. 26 at 3.) However, even if the 21 court were to find petitioner had good cause (which it would not) to pursue a potentially 22 meritorious insufficiency of the evidence claim, petitioner has utterly failed to demonstrate he did 23 not engage in intentional dilatory litigation tactics. Because petitioner was aware of the facts 24 surrounding the underlying crime, and whether or not petitioner was the actual shooter, petitioner 25 fails to explain his failure to raise this claim earlier. 26 But significantly, review of the state courts website reveals that no habeas petition has 27 been filed by petitioner in the California Supreme Court on May 10, 2020, or any other date.2 28 2 The court may take judicial notice of facts that are “not subject to reasonable dispute 1 Rather, the website reflects only petitioner’s direct appeal, People v. Tran, S235100; the petition 2 for review was denied by the California Supreme Court on July 13, 2016. Id. The search by 3 petitioner’s name revealed no other filings by him in the California Supreme Court. 4 Petitioner did file a petition for writ of habeas corpus in the California Court of Appeal, In 5 re Ricky Tran on Habeas Corpus, No. C091450, which was denied on February 21, 2020. But 6 when the appellate court case number C091450 is entered in the California Supreme Court 7 website, which cross-references appellate court case numbers, no habeas case filing in the 8 California Supreme Court by petitioner is found. Because petitioner has not filed his petition in 9 the California Supreme Court, contrary to his statement, the undersigned cannot find that 10 petitioner has not intentionally engaged in dilatory litigation tactics. 11 Because petitioner fails to meet all three conditions required for a stay under Rhines, the 12 motion for stay should be denied. 13 Pending Findings and Recommendations 14 Once the district court rules on the instant findings and recommendations, the undersigned 15 will forward the February 11, 2020 findings and recommendations (ECF No. 19) to the district 16 court for review.3 17 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s motion for stay (ECF 18 No. 26) be denied. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 24 because it . . . can be accurately and readily determined from sources whose accuracy cannot 25 reasonably be questioned,” Fed. R. Evid. 201(b), including undisputed information posted on official websites. Daniels-Hall v. National Education Association, 629 F.3d 992, 999 (9th Cir. 26 2010). It is appropriate to take judicial notice of the docket sheet of a California court. White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010). The address of the official website of the California 27 state courts is www.courts.ca.gov. 28 3 Petitioner filed objections on March 23, 2020 (ECF No. 24); respondent did not file a reply. wOASe 2 □□ □□ EAINTT IN RATIO □□ PO VSI eT OY VY VI 1 | objections shall be served and filed within fourteen days after service of the objections. The 2 | parties are advised that failure to file objections within the specified time may waive the right to 3 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 4 | Dated: August 31, 2020 Fens Arn 6 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 7 8 | frani925.sty.d 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28