(HC) Gonzalez v. Sexton ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS MIGUEL GONZALEZ, Case No. 1:18-cv-00039-DAD-HBK 12 Petitioner, ORDER GRANTING PETITIONER’S MOTION TO STAY 13 v. (Doc. No. 59) 14 MICHAEL SEXTON, ORDER WITHDRAWING FINDINGS AND 15 Respondent. RECOMMENDATIONS 16 (Doc. No. 55) 17 18 19 20 Petitioner Luis Miguel Gonzalez, a state prisoner represented by counsel, is proceeding on 21 his First Amended Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 challenging his 22 2013 sentence and conviction entered by the Superior Court of Kern County (case no. BF 23 143990A). (Doc. No. 41). Respondent filed an answer to the amended petition, and Petitioner 24 filed a traverse. (Doc. Nos. 51, 54). On September 3, 2021, the undersigned issued Findings and 25 Recommendations to deny Petitioner relief for writ of habeas corpus. (Doc. No. 55). Petitioner 26 filed objections to the Findings and Recommendations on October 11, 2021, and simultaneously 27 filed a motion to stay pursuant to Rhines. (Doc. No. 59). In his motion to stay, Petitioner 28 withdraws ground three and a portion of ground four related to ineffective assistance of appellate 1 counsel for failure to challenge eyewitness jury instruction CALCRIM 315, but seeks a stay in 2 order to return to state court to exhaust grounds two and a portion of ground four. Respondent 3 filed a reply to Petitioner’s objections, and an opposition to Petitioner’s motion to stay. (Doc. 4 Nos. 60, 61). For the reasons stated below, the Court grants Petitioner’s motion to stay the case 5 under Rhines to permit Petitioner an opportunity to return to state court to exhaust grounds two 6 and four of the First Amended Petition. As a result, the undersigned withdraws its September 3, 7 2021, Findings and Recommendations. 8 BACKGROUND 9 On January 8, 2018, Petitioner initiated this action pro se by filing a petition for writ of 10 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). The petition raised two claims: (1) 11 improper dismissal of a juror in violation of due process, and (2) denial of effective assistance of 12 appellate counsel in violation of the Sixth and Fourteenth Amendments for failing to notify him 13 of the appellate decision and failing to “adequately raise all viable issues.” (Doc. No. 1 at 3-4). 14 Respondent filed a motion to dismiss the petition as untimely, and the former assigned magistrate 15 judge issued findings and recommendations to grant the motion to dismiss the petition as time 16 barred. (Doc. No. 13). Petitioner, who was without counsel at the time, filed objections based on 17 appellate counsel’s failure to provide him with a copy of his “case file, records [and] transcripts” 18 from his state court proceedings, and moved for leave to conduct discovery. (Doc. No. 18). The 19 former assigned magistrate judge then vacated his findings and recommendations and entered an 20 order granting Petitioner’s motion for discovery and appointing counsel for the purpose of 21 conducting discovery of the records from his state criminal proceedings and the case file 22 maintained by his appellate counsel. (Doc. Nos. 19, 24). Carolyn D. Phillips entered an 23 appearance as counsel on August 5, 2019. (Doc. No. 25). On January 6, 2020, a copy of 24 Petitioner’s state appellate case file was delivered to the court and given to Petitioner’s counsel, 25 and the court thereafter directed expansion of the record, including leave and an extension of time 26 for Petitioner to file an amended petition. (Doc. Nos. 36, 38, 40). 27 Petitioner filed an amended petition on July 16, 2020 that raised four claims. (Doc. No. 28 41). Respondent filed an answer (Doc. No. 51) and the undersigned issued Findings and 1 Recommendations to deny Petitioner relief for writ of habeas corpus on September 3, 2021. 2 (Doc. No. 55). More particularly, the undersigned recommended the district court deny ground 3 one on the merits and deny grounds two, three, and four as unexhausted.1 (Id. at 21-24). 4 Petitioner filed objections to the Findings and Recommendations on October 11, 2021 (Doc. No. 5 58), and simultaneously, by separate pleading, filed the instant motion to stay pursuant to Rhines. 6 (Doc. No. 59). Petitioner concedes his amended petition contains both exhausted and 7 unexhausted claims for relief. (Id. at 4). Thus, Petitioner requests a stay in order to exhaust 8 ground two and a portion of ground four of his unexhausted claims before the state courts.2 (Doc. 9 No. 59). 10 APPLICABLE LAW AND ANALYSIS 11 The undersigned’s authority is limited by 28 U.S.C. § 636. The statute vests a magistrate 12 judge, absent the parties’ consent, with ability in habeas actions under § 2254 to hear and 13 determine nondispositive matters. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004). The 14 courts adopt a functional approach in determining whether a motion is dispositive, i.e. the court 15 considers “the effect of the motion.” Mitchell v. Valenzuela, 791 F. 3d 1166, 1169 (2015). The 16 denial of a motion to stay effectively denies the ultimate relief sought and is considered 17 dispositive. Id. at 1170 (citing S.E.C. v. CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 18 2013)). In contrast, a motion “is nondispositive where it does not dispose of any claims or 19 1 As Respondent notes, Petitioner requested in his traverse that in the event the Court found his claims 20 unexhausted, the Court stay and hold in abeyance his petition in order to exhaust his claims in state court. (Doc. No. 54 at 15). The undersigned recommended denying the request at that time as Petitioner 21 presented no argument and did not address the three Rhines factors. (Doc. No. 55 at 23-24). 22 2 Petitioner’s First Amended Petition included two grounds asserting appellate counsel was constitutionally ineffective: (ground three) ineffective assistance of appellate counsel for failure to 23 challenge eyewitness jury instruction CALCRIM 315 which violated the due process clause under the Fourteenth Amendment; and (ground four) ineffective assistance of appellate counsel for failure to raise 24 ineffective assistance of trial counsel for failing to challenge the tainted show-up procedures and failure to object to CALCRIM 315. (Doc. No. 41). In Petitioner’s objections to the undersigned’s findings and 25 recommendations to deny habeas relief, and in his motion to stay, Petitioner acknowledges he voluntarily withdraws ground three and the portion ground four regarding the trial’s court’s instruction to the jury 26 with CALCRIM 315 based on the California Supreme Court’s rejection of this argument in People v. Lemcke, 11 Cal.5th 644 (2021). Thus, the only claims Petitioner requests to exhaust in the motion to stay 27 presently before the Court is appellate counsel ineffective assistance for failing to challenge the tainted show-up procedure and failure to raise an ineffective assistance of counsel claim regarding the same. 28 (Doc. No. 59). 1 defenses and does not effectively deny any ultimate relief sought.” Id. (internal alterations and 2 citations omitted). Because the Court is not denying the ultimate relief sought—denying the 3 motion to stay which in effect would result in the grounds being unexhausted—the undersigned 4 has authority to rule on the motion sub judice. 5 Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a petitioner has 6 exhausted the remedies available in state court. The U.S. Supreme Court has held that a district 7 court may not adjudicate a federal habeas corpus petition unless the petitioner has exhausted state 8 remedies on each of the claims raised in the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). 9 A “mixed petition,” meaning a petition containing both exhausted and unexhausted claims, is 10 subject to dismissal. Id.; Coleman v. Thompson, 501 U.S. 722, 731 (1991). 11 However, Rhines permits a court to stay all the claims in a petition while the petitioner 12 returns to the state courts to exhaust his already pled but unexhausted claims. Rhines v. Weber, 13 544 U.S. 269, 277-78 (2005). A stay and abeyance “should be available only in limited 14 circumstances” because issuing a stay “undermines AEDPA’s goal of streamlining federal habeas 15 proceedings by decreasing a petitioner’s incentive to exhaust all his claims in state court prior to 16 filing his federal petition.” Id. Under Rhines, a stay and abeyance for a mixed petition, a petition 17 that contains both exhausted and unexhausted claims, is available only where: (1) there is “good 18 cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) 19 the petitioner did not intentionally engage in dilatory litigation tactics. Id. 20 A. Good Cause 21 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 22 exhaust.” Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Although good cause under Rhines 23 does not require a showing of “extraordinary circumstances,” Jackson v. Roe, 425 F.3d 654, 661- 24 62 (9th Cir. 2005), “unspecific, unsupported excuses for failing to exhaust—such as unjustified 25 ignorance—[do] not satisfy the good cause requirement,” Blake, 745 F.3d at 981. Rather, “good 26 cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient 27 evidence, to justify” his failure to exhaust his claims. Id. at 982. 28 //// 1 Petitioner claims he has good cause for failing to exhaust his unexhausted claim because 2 “he lacked both counsel and the appellate court record in state habeas proceedings.” (Doc. No. 59 3 at 5). Respondent argues that the Supreme Court has “rejected that the exhaustion-first 4 requirement ‘will serve to trap the unwary pro se prisoner,’” and found that “[j]ust as pro se 5 prisoners have managed to use the federal habeas machinery, so too should they be able to master 6 this straightforward exhaustion requirement.” (Doc. No. 60 at 4 (citing Rose v. Lundy, 455 U.S. 7 509, 519-20 (1982)). Thus, according to Respondent, “[i]t is hardly a comfortable thing, but this 8 Court is bound to obey the Supreme Court, even when the Ninth clearly has not done so.” (Doc. 9 No. 60 at 4). Notwithstanding Respondent’s general assertion, it is well-settled in the Ninth 10 Circuit that a lack of counsel in state post-conviction proceedings has been deemed to constitute 11 good cause under Rhines. Dixon v. Baker, 847 F.3d 714, 721-22 (9th Cir. 2017) (“A petitioner 12 who is without counsel in a state postconviction proceedings cannot be expected to understand 13 the technical requirements of exhaustion and should not be denied the opportunity to exhaust a 14 potentially meritorious claim simply because he lacked counsel.”). It is undisputed that Petitioner 15 was without counsel when he filed his state habeas petitions. The Court therefore find that 16 Petitioner has demonstrated the Rhines prong for good cause. 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 Respondent argues that “[i]t is implausible to suggest, based on what Petitioner has 25 presented to this Court, that he potentially rebuts the ‘strong’ presumption that counsel ‘made a 26 legitimate strategic choice’ not to move to exclude the identification.” (Doc. No. 60 at 3). It is 27 admittedly possible that Petitioner’s appellate counsel determined that it would be futile to 28 challenge the allegedly tainted show-up procedure. Jones v. Barnes, 463 U.S. 745, 751-53 (1983) 1 (appellate counsel has no constitutional duty to raise every issue, where, in the attorney’s 2 judgment, the issue has little or no likelihood of success); see also McCoy v. Wisconsin, 486 U.S. 3 429, 436 (1988) (as an officer of the court, appellate counsel is under an ethical obligation to 4 refrain from wasting the court’s time on frivolous arguments). However, “[i]n determining 5 whether a claim is ‘plainly meritless,’ principles of comity and federalism demand that the federal 6 court refrain from ruling on the merits of the claim unless ‘it is perfectly clear that the petitioner 7 has no hope of prevailing.’” Dixon, 847 F.3d at 722 (citing Cassett v. Stewart, 406 F.3d 614, 624 8 (9th Cir. 2005). Petitioner’s claim that appellate counsel failed to challenge the allegedly tainted 9 show-up procedure is not a plainly meritless argument and has sufficient potential merit to satisfy 10 this second prong of the Rhines test. See id. at 722-23 (“[a]n attorney’s failure to raise a state-law 11 objection at trial – or the likely success of a direct appeal on the same basis – may support a claim 12 for ineffective assistance of counsel in a later federal habeas petition.”). 13 C. Dilatory Litigation Tactics 14 Respondent argues that Petitioner’s counsel has engaged in inexcusable delay because 15 counsel did not seek to exhaust this claim despite being “on notice” no later than July 16, 2020, 16 the date the amended petition was filed, that claims in the amended petition were unexhausted. 17 (Doc. No. 60 at 1-3). Respondent also cites the answer, filed on December 9, 2020, and the 18 Court’s findings and recommendations that the habeas petition be denied, filed on September 3, 19 2021, both which of noted the lack of exhaustion of the claim at issue. (Doc. Nos. 50, 55). Thus, 20 according to Respondent, “Petitioner knew, from the time the Petition was filed well over a year 21 ago, the facts demonstrating plainly that the ineffectiveness claims were not fairly presented in 22 the California Supreme Court for failure to thoroughly allege the operative facts in that Court. 23 That makes it abusive and in bad faith that he seeks a pleading fix now, not only after Respondent 24 had to file an Answer, but also after this Court had to read the pleadings and issue its Findings 25 and Recommendations.” (Doc. No. 60 at 3). 26 The undersigned finds nothing in the record suggesting that Petitioner has engaged in 27 “intentionally dilatory litigation tactics,” either prior to or after the filing of his federal habeas 28 petition. Rather, as noted by Petitioner, his “ability to litigate his habeas claims was negatively 1 | impacted by appellate counsel’s failure to communicate with him regarding the direct appeal, to 2 | notify him of a decision in the appeal or to respond to his requests for appellate records. When 3 | appellate counsel finally provided what few records she did have it was in response to a subpoena 4 | duces tecum during discovery.” (Doc. No. 59 at 6). Moreover, while the undersigned agrees that 5 || Petitioner’s counsel was “on notice” that exhaustion might be at issue, this court has previously 6 | held that “[i]t is reasonable to wait to return to state court until respondent has made his position 7 | [on] exhaustion known and this court identifies which claims are exhausted and which are not 8 | exhausted.” Leonard v. Davis, No. 2:17-CV-0796-JAM-AC DP, 2019 WL 1772390, at *5 (E.D. 9 | Cal. Apr. 23, 2019), report and recommendation adopted, No. 2:17-CV-0796-JAM-AC DP, 2019 10 | WL 2162980 (E.D. Cal. May 17, 2019). Petitioner has followed this court’s case management 11 || requirements in litigating this habeas action. Because there is no evidence that Petitioner engaged 12 | in dilatory litigation tactics or intentional delay, the third prong of Rhines is satisfied. 13 Accordingly, it is ORDERED that: 14 1. The Findings and Recommendations dated September 3, 2021 (Doc. No. 55) are 15 | WITHDRAWN. 16 2. Petitioner’s motion to stay (Doc. No. 59) is GRANTED and the Clerk of Court 17 || shall STAY this action until further order of court. 18 3. Petitioner shall file a copy of his state petition with the state court within thirty 19 | (30) days of the date on this Order. 20 4. Petitioner shall file status reports every sixty (60) days thereafter to apprise this 21 | Court of the progress of state court proceedings. 22 5. Petitioner shall file a motion to lift the stay within twenty-one (21) days of the 23 | California Supreme Court issuing a final order resolving Petitioner’s unexhausted claims. | Dated: _ March 7, 2022 law Nh. fareh Sass □□□ 25 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 27 28