(HC) Cabrera v. Godwin ( 2021 )

1 2 3 4 5 6 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 GRANTING PETITIONER’S MOTION TO STAY 13 v. (Doc. No. 3) 14 RON GOODWIN, PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 19 Petitioner Omar Cabrera, a state prisoner proceeding with counsel, seeks a writ of habeas 20 corpus under 28 U.S.C. § 2254 challenging his 2017 sentence and conviction entered by the 21 Superior Court of Kings County. (Doc. No. 1). Before the court is Petitioner’s motion for a stay 22 and abeyance under Rhines. (Doc. No. 3); Rhines v. Weber, 544 U.S. 269 (2005). The court 23 ordered Respondents to respond to the motion to stay (Doc. No. 4), and Respondents filed a 24 notice of non-opposition to Petitioner’s motion to stay. (Doc. No. 6). However, because 25 Petitioner failed to address the requirements of Rhines in his motion, the court ordered him to 26 show cause why his motion to stay should not be denied. (Doc. No. 7). On April 23, 2021, 27 Petitioner responded to the order to show cause. (Doc. No. 8). For the reasons stated below, the 28 court discharges its order to show cause and grants Petitioner’s motion to stay the case. 1 I. BACKGROUND 2 Petitioner concedes his petition contains both exhausted and unexhausted claims for relief. 3 (See generally Doc. Nos. 1, 3). Petitioner advances the following exhausted grounds for relief: 4 (1) the trial court erred in finding a race-neutral explanation for the prosecution’s use of a 5 preemptive strike during jury selection; (2) the trial court erred when it admitted certain 6 prejudicial evidence; and (3) there was insufficient evidence to support the jury’s finding on the 7 “one strike” sentencing enhancement. (See Doc. No. 1 at 2-3). Petitioner requests a stay in order 8 to exhaust the following unexhausted claims before the state courts: (1) petitioner/defendant 9 received ineffective assistance of trial and appellate counsel; (2) the trial court imposed excessive 10 fines and fees; and (3) the trial court erred when it denied petitioner/defendant’s motion to 11 substitute counsel. (Doc. No. 3 at 2-3). 12 II. APPLICABLE LAW AND ANALYSIS 13 Staying a federal habeas petition “frustrates AEDPA’s objective of encouraging finality by 14 allowing a petitioner to delay the resolution of the federal proceedings” and “undermines AEDPA’s 15 goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust 16 all his claims in state court prior to filing his federal petition.” Rhines, 544 U.S. at 277. Therefore, 17 a “stay and abeyance should be available only in limited circumstances.” Id. Under Rhines, a stay 18 and abeyance is available only where: (1) there is “good cause” for the failure to exhaust; (2) the 19 unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally engage 20 in dilatory litigation tactics. 544 U.S. at 277-78. 21 a. Good Cause 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, 661- 25 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. The ineffective assistance of post- 1 conviction counsel can constitute good cause to excuse a habeas petitioner’s failure to exhaust his 2 claims before the state courts. Id. at 982-84; see also Dixon v. Baker, 847 F.3d 714, 721-22 (9th 3 Cir. 2017) (noting that a denial of a motion to stay is unwarranted where a petitioner “alleges a 4 plausible claim that his post-conviction counsel was ineffective). 5 Here, Petitioner cites as “good cause” his position that he had ineffective assistance of 6 appellate counsel. (Doc. No. 8 at 2). Thus, petitioner’s ineffective assistance of appellate counsel 7 claim could not have been made on direct review—but rather had to be made later, through a state 8 court habeas claim. (Id.). Petitioner also claims that his “unexhausted claims were made [to the 9 state courts] as expeditiously as possible under the circumstances.” (Id.). 10 In light of Petitioner’s claims regarding his ineffective post-conviction counsel and his 11 expeditious filing of his unexhausted claims before the state court, the court finds that there is good 12 cause to grant Petitioner a stay. Further, the court notes that such a stay will likely be for a short 13 period of time because Petitioner is currently seeking review of his claims before the California 14 Supreme Court, meaning Petitioner has taken the final step necessary to exhaust his claims. See 15 Cabrera (Omar) on H.C., No. S268704 (Cal. May 10, 2021). Finally, the court notes that 16 Respondents do not oppose Petitioner’s motion. 17 b. Merit of Claims 18 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 19 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 F.3d at 722. “In 20 determining whether a claim is ‘plainly meritless,’ principles of comity and federalism demand 21 that the federal court refrain from ruling on the merits of the claim unless ‘it is perfectly clear that 22 the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th 23 Cir. 2005). 24 Petitioner claims trial and appellate counsel were ineffective, that the trial court imposed 25 an excessive fine, and that the trial court erred when it denied Petitioner’s motion to substitute 26 counsel. Although Petitioner’s claim regarding the excessive fine appears to be without merit for 27 federal habeas purposes, his claims of ineffective assistance of counsel and trial court error raise 28 constitutional issues related to Petitioner’s Sixth Amendment right to counsel. See Bailey v. Hill, 1 | 599 F.3d 976, 981 (9th Cir. 2010) (°§ 2254(a) does not confer jurisdiction over a state prisoner’s 2 | in-custody challenge to a restitution order imposed as part of a criminal sentence”); Strickland v. 3 | Washington, 466 U.S. 668 (1984) (establishing standard for Sixth Amendment right to counsel). 4 | Accordingly, Petitioner has identified at least one claim that does not appear plainly meritless. 5 c. Dilatory Litigation Tactics 6 There is no evidence that Petitioner engaged in dilatory litigation tactics or intentional 7 | delay. On the contrary, it appears Petitioner pursued his rights diligently by expeditiously filing 8 | his state habeas petitions and filing a protective federal petition. 9 Accordingly, it is ORDERED: 10 1. Petitioner’s motion to stay (Doc. No. 3) is GRANTED. 11 2. Petitioner is directed to pursue state court exhaustion without delay. 12 3. Petitioner is directed to file a motion to lift the stay within 30 days of the California 13 Supreme Court issuing a final order resolving Petitioner’s unexhausted claims. 14 1s IT IS SO ORDERED. Dated: May 26, 2021 Mile. Wh fareh Zaskth 17 HELENA M. BARCH-KUCHTA 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28