(HC) Franklin v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER FRANKLIN, No. 2:23-cv-1039 KJN P 12 Petitioner, 13 v. ORDER 14 C. PFEIFFER, Warden, 15 Respondent. 16 17 Petitioner, a state prisoner, proceeds pro se and in forma pauperis, with an application for 18 a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner’s motion for stay is before the 19 court. As discussed below, petitioner’s motion for stay is granted. 20 Background 21 On June 1, 2023, petitioner filed a petition for writ of habeas corpus challenging his 2023 22 Sacramento County Superior Court conviction for first degree murder, attempted murder, assault 23 by means of force likely to produce great bodily injury, and three counts of carrying a concealed 24 firearm. (ECF No. 1.) Petitioner raises the following cognizable grounds for relief: (1) and (8) 25 insufficient evidence to support the murder, attempted murder and associated firearm charges; (2) 26 ineffective assistance of counsel for failing to object to petitioner’s absence from hearings, failure 27 to move for a speedy trial, and other failures to object; (3) improper impeachment based on a 28 1 misdemeanor crime; (4) insufficient evidence to support assault conviction; and (8).1 The 2 petition appears to be wholly unexhausted. 3 On August 11, 2023, petitioner was provided information concerning the two motions for 4 stay and abeyance that are available to him. (ECF No. 14 at 3-4.) On August 21, 2023, petitioner 5 moved to stay the instant petition under Rhines v. Weber, 544 U.S. 269 (2005). 6 Discussion 7 Stay and Abeyance 8 A petitioner in state custody proceeding with a petition for writ of habeas corpus must 9 exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). A petitioner can satisfy the exhaustion 10 requirement by providing the highest state court with a full and fair opportunity to consider each 11 claim before presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 12 Duncan v. Henry, 513 U.S. 364, 365 (1995). If petitioner has not sought relief in the California 13 Supreme Court for the claims that he raises in the instant petition, the Court cannot proceed to the 14 merits of those claims. 28 U.S.C. § 2254(b)(1). 15 Under Rhines, a district court has discretion to stay a mixed or wholly unexhausted 16 petition to allow a petitioner time to present his or her unexhausted claims to state courts. Id. 544 17 U.S. at 276; see Mena v. Long, 813 F.3d 907, 912 (9th Cir. 2016) (holding district court has 18 discretion to stay and hold in abeyance fully unexhausted petitions under the circumstances set 19 forth in Rhines). However, “stay and abeyance [is] available only in limited circumstances,” and 20 only when: (1) there is “good cause” for the failure to exhaust; (2) the “unexhausted claims are 21 potentially meritorious”; and (3) “there is no indication that the petitioner engaged in intentionally 22 dilatory litigation tactics.” 544 U.S. at 277-78. Additionally, in the Ninth Circuit there is an 23 alternative stay procedure set forth in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on 24 other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). Under Kelly, a three- 25 step procedure is used: (1) the petitioner amends his petition to delete any unexhausted claims; 26 (2) the court in its discretion stays the amended, fully exhausted petition, and holds it in abeyance 27 1 Petitioner’s claims 5, 6, 7 and 9 are not based on constitutional challenges to his conviction and 28 therefore are not cognizable federal habeas claims. 1 while the petitioner has the opportunity to proceed to state court to exhaust the deleted claims; 2 and (3) once the claims have been exhausted in state court, the petitioner may return to federal 3 court and amend his federal petition to include the newly-exhausted claims. 315 F.3d at 1070-71. 4 The Ninth Circuit has “noted the important distinctions between the Rhines and Kelly 5 procedures.” King v. Ryan, 564 F.3d 1133, 1139 (9th Cir. 2009). “Rhines allows a district court 6 to stay a mixed petition, and does not require that unexhausted claims be dismissed while the 7 petitioner attempts to exhaust them in state court. In contrast, the three-step procedure outlined in 8 Kelly allows the stay of fully exhausted petitions, requiring that any unexhausted claims be 9 dismissed.” Id. 1139-40 (citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)). “Kelly is not 10 only a more cumbersome procedure for petitioners, but also a riskier one. A petitioner seeking to 11 use the Kelly procedure will be able to amend his unexhausted claims back into his federal 12 petition once he has exhausted them only if those claims are determined to be timely.” King, 564 13 F.3d at 1140-41. 14 Good Cause 15 “There is little authority on what constitutes good cause to excuse a petitioner’s failure to 16 exhaust” under Rhines. Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). “The Supreme Court 17 has addressed the issue only once, when it noted that a ‘petitioner’s reasonable confusion about 18 whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in 19 federal court.’” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)). The Ninth Circuit 20 has “held that good cause under Rhines does not require a showing of ‘extraordinary 21 circumstances,’ but that a petitioner must do more than simply assert that he was ‘under the 22 impression’ that his claim was exhausted.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) 23 (quoting Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005); and Wooten v. Kirkland, 540 F.3d 24 1019, 1024 (9th Cir. 2008)). “While a bald assertion cannot amount to a showing of good cause, 25 a reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, will.” 26 Blake, 745 F.3d at 982. 27 Although not specifically stated, petitioner appears to claim confusion as to the state and 28 federal rules governing habeas procedures and timeliness. See Bernhardt v. Los Angeles County, 1 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and motions 2 liberally). Therefore, the court finds petitioner has satisfied Rhines’ good cause requirement. See 3 Pace, 544 U.S. at 416 (“A petitioner’s reasonable confusion about whether a state filing would be 4 timely will ordinarily constitute ‘good cause’ for him to file in federal court.”). 5 Potentially Meritorious Unexhausted Claims 6 “A federal habeas petitioner must establish that at least one of his unexhausted claims is 7 not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 8 (9th Cir. 2017). “In determining whether a claim is ‘plainly meritless,’ principles of comity and 9 federalism demand that the federal court refrain from ruling on the merits of the claim unless ‘it is 10 perfectly clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 406 11 F.3d 614, 624 (9th Cir. 2005)). 12 Here, it is not clear that petitioner has no hope of prevailing on the unexhausted claims set 13 forth above, and at least one of petitioner’s unexhausted claims appears on its face to not be 14 “plainly meritless.” See Strickland v. Washington, 466 U.S. 668 (1984) (failure to object to 15 petitioner’s absence at court hearings). 16 Conclusion 17 Petitioner has established good cause for his failure to exhaust, and at least one of his 18 unexhausted claims appears on its face to not be plainly meritless. There is no indication that 19 petitioner engaged in “intentionally dilatory tactics.” Rhines, 544 U.S. at 278. Indeed, petitioner 20 has filed a petition for writ of habeas corpus in the Sacramento County Superior Court, No. 21 23HC00326. (ECF No. 15 at 1-2.) 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Petitioner’s motion for stay (ECF No. 15) is granted; 24 2. This action is stayed pending exhaustion of state court remedies with respect to 25 petitioner’s unexhausted claims; 26 3. This action shall not proceed further unless and until petitioner files a motion to lift the 27 stay, which shall be filed within thirty days from the date of any final order by the California 28 Supreme Court resolving his state exhaustion petition; and ] 4. The Clerk of the Court is directed to administratively close this case. 2 || Dated: September 26, 2023 ; Foci) Aharon 4 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 5 6 /fran1039.styg 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28