(HC) Hubbard v. People of the State of California ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWAYNE ALLEN HUBBARD, No. 2:21-cv-00040 WBS GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding in pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s motion to stay. ECF No. 19 15. Respondent has filed a statement of non-opposition.1 ECF No. 18. 20 A district court may properly stay a habeas petition and hold it in abeyance pursuant to 21 Rhines v. Weber, 544 U.S. 269 (2005). See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 22 Under Rhines, a district court may stay a mixed petition to allow a petitioner to present an 23 unexhausted claim to the state courts. Rhines, 544 U.S. at 277. Assuming the petition itself has 24 been timely filed, such a stay “eliminates entirely any limitations issue with regard to the 25 originally unexhausted claims, as the claims remain pending in federal court[.]” King, 564 F.3d at 26 1 While respondent’s non-opposition is not generally opposing petitioner’s motion, 27 respondent includes the following caveat: “Respondent does not suggest a stay is necessarily proper or non-futile, and noting that time constraints by the Court are essential.” ECF No. 18 at 1 28 (citing Rhines v. Weber, 544 U.S. 269, 278 (2005). 1 1140. However, to qualify for a stay under Rhines, a petitioner must: (1) show good cause for his 2 failure to exhaust all his claims before filing this action; (2) explain and demonstrate how his 3 unexhausted claim is potentially meritorious; (3) describe the status of any pending state court 4 proceedings on his unexhausted claim; and (4) explain how he has diligently pursued his 5 unexhausted claim. Rhines, 544 U.S. at 277–78. What constitutes good cause has not been 6 precisely defined except to indicate at the outer end that petitioner must not have engaged in 7 purposeful dilatory tactics, Rhines, 544 U.S. at 277- 78, and that “extraordinary circumstances” 8 need not be found. Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 2005); see also Rhines, 544 9 U.S. at 279 (Stevens, J., concurring) (the “good cause” requirement should not be read “to impose 10 the sort of strict and inflexible requirement that would trap the unwary pro se prisoner”) (internal 11 citation omitted); id. (Souter, J., concurring) (pro se habeas petitioners do not come well trained 12 to address tricky exhaustion determinations). “But as the Jackson court recognized, we must 13 interpret whether a petitioner has “good cause” for a failure to exhaust in light of the Supreme 14 Court’s instruction in Rhines that the district court should only stay mixed petitions in ‘limited 15 circumstances.’ We also must be mindful that [the Antiterrorism and Effective Death Penalty Act 16 of 1996 (“AEDPA”)] aims to encourage the finality of sentences and to encourage petitioners to 17 exhaust their claims in state court before filing in federal court.” Wooten v. Kirkland, 540 F.3d 18 1019, 1023-24 (9th Cir. 2008), quoting Jackson, 425 F.3d at 661) (internal citations omitted). 19 Petitioner has not established grounds for a stay under Rhines. Primarily, petitioner has 20 not identified which unexhausted claims he seeks to exhaust in state court.2 Petitioner’s bare 21 assertion fails to provide sufficient details and evidence for his claim of good cause. See Blake v. 22 Baker, 745 F.3d 977, 982 (9th Cir. 2014) (“An assertion of good cause without evidentiary 23 support will not typically amount to a reasonable excuse justifying a petitioner's failure to 24 exhaust.”) Of course, the undersigned is cognizant that a non-opposition to a motion will usually 25 //// 26 //// 27 2 On April 20, 2021, the undersigned provided petitioner an opportunity to identify the 28 claims he seeks to exhaust in state court. ECF No. 19. Petitioner did not file a response. 1 result in a granting of the motion. However, the court made a simple request that the claims for 2 exhaustion be identified, and petitioner has seemingly ignored it. 3 Accordingly, the undersigned will recommend that petitioner’s motion to stay be denied. 4 IT IS HEREBY RECOMMENDED that Petitioner’s motion to stay and hold the petition 5 in abeyance (ECF No. 15) be denied. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court and serve a copy on all parties. Such a document should be captioned 10 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 11 objections shall be filed and served within fourteen days after service of the objections. The 12 parties are advised that failure to file objections within the specified time may waive the right to 13 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 Dated: June 11, 2021 /s/ Gregory G. Hollows 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28