(HC) Thompson v. Spearman ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KANE MICHAEL THOMPSON, No. 2:19-cv-2328 KJM DB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 M.E. SPEARMAN, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a 18 writ of habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his 2017 conviction in 19 Sacramento County Superior Court. On August 12, 2021, the court found that the Second 20 Amended Petition (“SAP”) was a mixed petition containing both exhausted and unexhausted 21 claims and recommended that this action be dismissed. (ECF No. 37.) Presently before the court 22 is petitioner’s motion for stay and abeyance of this action so that petitioner may seek to exhaust 23 his claims in state court. (ECF No. 40.) For the reasons set forth below, this court will 24 recommend that petitioner’s motion be denied. 25 //// 26 //// 27 //// 28 //// 1 MOTION FOR STAY AND ABEYANCE 2 I. General Legal Standards 3 It is well established that a federal court may not “adjudicate mixed petitions for habeas 4 corpus, that is, petitions containing both exhausted and unexhausted claims.” Rhines v. Weber, 5 544 U.S. 269, 273 (2005) (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). Historically, 6 federal courts dismissed mixed petitions. See Rose, 455 U.S. at 522; Rhines, 544 U.S. at 274. In 7 2005, the Supreme Court considered the propriety of staying a mixed petition. In Rhines, the 8 Court held that stay and abeyance of a mixed petition is available in “limited circumstances” 9 when “the district court determines there was good cause for the petitioner’s failure to exhaust his 10 claims first in state court.” 544 U.S. at 277. Even if a court finds good cause, however, a stay is 11 inappropriate if the unexhausted claims are “plainly meritless” or petitioner has engaged in 12 “abusive litigation tactics or intentional delay.” Id. at 278. Under Rhines, then, a federal court 13 may stay a petition containing exhausted and unexhausted claims if the following conditions are 14 met: (1) “the petitioner had good cause for his failure to exhaust,” (2) “his unexhausted claims are 15 potentially meritorious,” and (3) “there is no indication that the petitioner engaged in intentionally 16 dilatory litigation tactics.” Id. 17 II. Good Cause Under Rhines 18 What constitutes “good cause” is not clearly defined in Rhines. The Supreme Court has 19 explained that in order to promote the Anti-terrorism and Effective Death Penalty Act's 20 (“AEDPA”) twin goals of encouraging the finality of state judgments and reducing delays in 21 federal habeas review, “stay and abeyance should be available only in limited circumstances.” 22 Rhines, 544 U.S. at 277. Extraordinary circumstances are not necessary to justify a Rhines stay. 23 Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). 24 In 2008, the Ninth Circuit warned that the good cause standard should not be so easy to 25 meet that it renders “stay-and-abey orders routine” and runs “afoul of Rhines and its instruction 26 that district courts should only stay mixed petitions in ‘limited circumstances.’” Wooten v. 27 Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (petitioner did not show good cause by arguing 28 that he was “under the impression” that his counsel had raised all claims before the state court of 1 appeal). In 2014, the Ninth Circuit clarified that “[t]he good cause element is the equitable 2 component of the Rhines test,” and that although “a bald assertion cannot amount to a showing of 3 good cause, a reasonable excuse, supported by evidence to justify a petitioner's failure to exhaust, 4 will.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). The court also retreated from the 5 implication in Wooten that an excuse that is a common occurrence could not constitute good 6 cause. The court in Blake held that good cause should not be measured by “how often the type of 7 good cause [the petitioner] asserted could be raised.” Id. at 981. 8 Under Blake, that good cause for failure to exhaust is established when “petitioner can set 9 forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” Id. at 982 10 (citing Pace v. DiGuglielmo, 544, U.S. 408, 416 (2004)). A petitioner’s ignorance that a claim 11 was unexhausted is insufficient unless petitioner can provide evidence that indicates the 12 petitioner’s ignorance was justified. Id. Ineffective assistance of counsel by post-conviction 13 counsel can be sufficient to establish good cause for failure to exhaust if petitioner provides “a 14 concrete and reasonable excuse, supported by evidence.” Id. at 983. 15 III. Analysis 16 Petitioner argues good cause exists to grant a Rhines stay as the failure to properly exhaust 17 petitioner’s claims was due to ineffective assistance of appellate counsel. (ECF No. 40 at 4-5.) 18 The motion does not provide any evidence in support of this argument. (Id. at 4.) Instead, 19 petitioner simply states that he did not intend to “default on any of these claims” and that any 20 such error was due to ineffective assistance of counsel. (Id.) These arguments are insufficient to 21 establish good cause for petitioner’s failure to exhaust. 22 As stated above, ineffective assistance of post-conviction counsel can establish the 23 existence of good cause for failure to properly exhaust claims. Blake, 745 F.3d at 983. However, 24 petitioner has not presented any evidence to show that his ignorance that these claims were 25 unexhausted was justified. On the contrary, the appeal petitioner previously cited as evidence 26 that he had exhausted all of his claims (See ECF Nos. 36, 27-3) plainly states only two of the four 27 claims brought in petitioner’s SAP (ECF No. 20). As such, good cause has not been established 28 //// 1 by the petitioner. The bald assertions that petitioner intended to exhaust his claims and that post- 2 conviction counsel was ineffective are insufficient. See Blake, 745 F.3d at 982-83. 3 Petitioner also argues that good cause exists for a stay under Rhines due to petitioner 4 having limited access to the law library due to the COVID-19 pandemic. (ECF No. 40 at 3.) 5 Though it might explain that petitioner was unaware that this was a requirement prior to filing his 6 petition, petitioner’s present difficulty accessing the law library does not appear to have any 7 connection to petitioner’s failure to exhaust his claims. Petitioner was represented by appellate 8 counsel during his state court appeals and these appeals took place back in 2018. (See ECF No. 9 27-3.) The question of good cause specifically regards whether there is good cause for 10 petitioner’s failure to exhaust. See Rhines, 544 U.S. at 277 (“stay and abeyance is only 11 appropriate when the district court determines there was good cause for the petitioner's failure to 12 exhaust his claims first in state court.”) As such, petitioner’s current lack of access to the law 13 library is not relevant to whether good cause exists to his failure to exhaust his claims. 1 14 Given the above, petitioner has not established good cause for the failure to exhaust the 15 unexhausted claims in the SAP. Thus, petitioner has not satisfied the necessary conditions for a 16 Rhines stay to be granted. 544 U.S. at 278. Accordingly, it will be recommended that 17 petitioner’s motion for stay (ECF No. 40) be denied. 18 CONCLUSION 19 For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s motion for 20 stay and abeyance of this action (ECF No. 40) be denied. 21 These findings and recommendations will be submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. The document should be captioned 25 26 1 If petitioner was raising this argument as it related to his motion to stay, he was able to request an extension of time to file this motion. The court previously granted petitioner an extension of 27 time to file this motion on similar grounds on September 9, 2021. (ECF No. 39.) An additional request would likely have been granted. However, petitioner seems to intend that this discussion 28 of law library access as grounds for a Rhines stay, not an extension of time. 1 | “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the 2 | objections shall be filed and served within seven days after service of the objections. The parties 3 || are advised that failure to file objections within the specified time may result in waiver of the 4 | right to appeal the district court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In the 5 || objections, the party may address whether a certificate of appealability should issue in the event 6 || an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the 7 | district court must issue or deny a certificate of appealability when it enters a final order adverse 8 || to the applicant). 9 | Dated: February 17, 2022 11 D ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 DBIDB Prisoner Inbox/Habeas/S/thom2328. stay 18 19 20 21 22 23 24 25 26 27 28