Morrison v. Lizarraga ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RYAN MICHAEL MORRISON, Case No.: 18-cv-01857-MMA (JLB) 12 Petitioner, REPORT AND 13 v. RECOMMENDATION RE: MOTION TO DISMISS PETITION FOR WRIT 14 JOE A. LIZARRAGA, Warden, et al., OF HABEAS CORPUS 15 Respondents. [ECF No. 12] 16 17 18 This Report and Recommendation is submitted to the Honorable Michael M. Anello, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 20 72.1(d) of the United States District Court for the Southern District of California. 21 On August 8, 2018, Petitioner Ryan Michael Morrison (“Petitioner”), proceeding 22 pro se, filed a Petition for Writ of Habeas Corpus (the “Petition”) before this Court pursuant 23 to 28 U.S.C. § 2254. (ECF No. 1.) On August 13, 2018, the Court advised Petitioner that 24 his Claim Two appeared to be unexhausted and gave him options on how to proceed. (ECF 25 No. 2.) Petitioner chose one of the options and, on October 14, 2018, constructively filed 26 a motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF 27 No. 4.) Upon consideration of the motion, the undersigned issued a report recommending 28 that the motion be denied without prejudice. (ECF No. 5.) No objections were filed. On 1 April 26, 2019, the Honorable Michael M. Anello, United States District Judge, adopted 2 the report and recommendation and denied Petitioner’s motion for stay and abeyance 3 without prejudice. (ECF No. 7.) 4 Now before the Court is a motion to dismiss filed by Respondent Joe A. Lizarraga 5 (“Respondent”), Warden of Mule Creek State Prison. (ECF No. 12.) Respondent moves 6 to dismiss the Petition on the grounds that Petitioner has failed to exhaust his state court 7 remedies with respect to all claims in the Petition. (Id.) Petitioner filed an opposition in 8 which he renews his request for a stay and abeyance under Rhines. (ECF No. 17.) 9 The Court has carefully considered Respondent’s motion, Petitioner’s opposition, 10 the Notice of Lodgment (ECF No. 13), as well as the record as a whole. Based thereon, 11 and for the reasons set forth below, the Court RECOMMENDS that Respondent’s motion 12 to dismiss be DENIED, and Petitioner’s renewed request for a Rhines stay be GRANTED. 13 I. BACKGROUND 14 On December 18, 2015, Petitioner was sentenced to twenty-five years to life, plus 15 five years, following conviction in San Diego County Superior Court for first degree 16 burglary of an inhabited dwelling, possession of methamphetamine, and possession of 17 heroin. (ECF No. 1 at 1-2.) Petitioner appealed his conviction to the California Court of 18 Appeal. (Id. at 2.) In his appeal, Petitioner raised four claims, including two raised in this 19 Petition: (1) the trial court erred in not dismissing one of his prior strike convictions; and 20 (2) Petitioner’s due process rights were violated when he received a sentence after trial 21 which was significantly harsher than his pre-trial offer. (Id. at 2, 6-13.) On April 27, 2017, 22 the California Court of Appeal affirmed the judgment. (Id. at 2.) 23 Petitioner then filed a petition for review in the California Supreme Court seeking 24 review of the same issues that he raised before the Court of Appeal. (Id.) The California 25 Supreme Court affirmed Petitioner’s judgment of guilt on August 9, 2017. (Id.) Petitioner 26 did not file a writ of certiorari in the United States Supreme Court. (Id. at 3.) 27 On August 8, 2018, Petitioner filed the present Petition. (ECF No. 1.) In his Petition, 28 Petitioner claims his constitutional rights were violated in the following ways: (1) the trial 1 court erred in not dismissing one of his prior strike convictions (Claim One); (2) 2 Petitioner’s trial counsel was ineffective for failing to provide an adequate expert witness 3 (Claim Two); and (3) Petitioner’s due process rights were violated when he received a 4 sentence after trial which was significantly harsher than his pre-trial offer (Claim Three). 5 (Id. at 6-13.) 6 In his Petition, Petitioner alleges exhaustion as to Claims One and Three. (See id. at 7 2, 6, 12.) However, Petitioner does not allege exhaustion as to Claim Two, his ineffective 8 assistance of trial counsel claim. (See id. at 9.) Therefore, on August 13, 2018, the Court 9 issued a Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court 10 Remedies (the “Notice”), informing Petitioner of several options with respect to his mixed 11 petition. (ECF No. 2.) The Notice informed Petitioner that his Petition was subject to 12 dismissal because it contained unexhausted claims. (Id.) On October 14, 2018, Petitioner 13 elected to file a motion for stay and abeyance under Rhines. (See id. at 4; ECF No. 4.) 14 Respondent had until November 15, 2018 to file a response to Petitioner’s motion and did 15 not do so. (See ECF No. 2 at 4.) 16 On March 25, 2019, the undersigned issued a Report and Recommendation 17 regarding Petitioner’s motion for stay and abeyance. (ECF No. 5.) After analyzing 18 Petitioner’s motion, the Court determined that Petitioner had not demonstrated good cause 19 for a stay under Rhines. (Id. at 9.) The Court relied on the fact that, despite being on 20 notice, the Court had before it no evidence that Petitioner had filed any state habeas petition 21 with respect to Claim Two. (See id. at 5-9.) The Court gave Petitioner until April 19, 2019 22 to file written objections. (Id. at 11.) Petitioner did not file any objections.1 (See ECF No. 23 24 25 1 Petitioner did not file any objections even though on January 31, 2019, Petitioner filed a petition for writ of habeas corpus in San Diego Superior Court, in which 26 he raised Claim Two. (ECF No. 13-11.) The Court was not notified by either party that 27 the state court habeas petition had been filed. The San Diego Superior Court denied the petition on April 16, 2019. (ECF No. 13-12.) There is nothing before the Court suggesting 28 1 13-11.) On April 26, 2019, Judge Anello adopted the Report and Recommendation and 2 denied Petitioner’s motion for stay and abeyance without prejudice. (ECF No. 7.) 3 Now before the Court is Respondent’s motion to dismiss the Petition on the grounds 4 that Petitioner has failed to exhaust his state court remedies with respect to all claims in the 5 Petition. (ECF No. 12.) Petitioner filed an opposition in which he requests reconsideration 6 of the Court’s order denying his motion for stay and abeyance pursuant to Rhines. (ECF 7 No. 17.) 8 II. LEGAL STANDARD 9 Habeas petitioners who wish to challenge either their state court conviction, or the 10 length of their confinement, must first exhaust state judicial remedies. 28 U.S.C. § 2254(b), 11 (c); see also Granberry v. Greer, 481 U.S. 129, 133-34 (1987); Peterson v. Lampert, 319 12 F.3d 1153, 1155 (9th Cir. 2003). To exhaust state judicial remedies, a California state 13 prisoner must present the California Supreme Court with a fair opportunity to rule on the 14 merits of every issue raised in his or her federal habeas petition. 28 U.S.C. § 2254(b), (c); 15 Granberry, 481 U.S. at 133-34; Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999). 16 Federal courts cannot consider petitions that contain both exhausted and unexhausted 17 claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 509, 522 (1982) 18 (holding a district court must dismiss a federal habeas petition containing both unexhausted 19 and exhausted claims). The filing of a mixed petition renders it subject to dismissal. Id. 20 In Rhines, the Supreme Court carved out “limited circumstances” in which it is 21 within the district court’s discretion to grant a stay of a mixed petition and hold it in 22 abeyance to allow the petitioner to return to state court and present his unexhausted claims. 23 Rhines, 544 U.S. at 277; see also Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). A 24 stay and abeyance is appropriate when the petitioner demonstrates “good cause” for his 25 failure to exhaust his claims in state court, where his claims are not plainly meritless, and 26 where he has not engaged in “abusive litigation tactics.” Dixon v. Baker, 847 F.3d 714, 27 720 (9th Cir. 2017) (citing Rhines, 544 U.S. at 278); see also King v. Ryan, 564 F.3d 1133, 28 1139 (9th Cir. 2009). 1 “The good cause element is the equitable component of the Rhines test. It ensures 2 that a stay and abeyance is available only to those petitioners who have a legitimate reason 3 for failing to exhaust a claim in state court.” Blake, 745 F.3d at 982. “The caselaw 4 concerning what constitutes ‘good cause’ under Rhines has not been developed in great 5 detail.” Dixon, 847 F.3d at 720; see also Blake 745 F.3d at 980 (“There is little authority 6 on what constitutes good cause to excuse a petitioner’s failure to exhaust.”). Good cause 7 under Rhines does not require a showing of “extraordinary circumstances.” Jackson v. 8 Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). However, a “bald assertion” of facts “cannot 9 amount to a showing of good cause.” Blake, 745 F.3d at 982. “[G]ood cause turns on 10 whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, 11 to justify [the failure to exhaust].” Id. (citation and footnote omitted). The Ninth Circuit 12 has instructed courts to “interpret whether a petitioner has ‘good cause’ for a failure to 13 exhaust in light of the Supreme Court’s instruction in Rhines that the district court should 14 only stay mixed petitions in ‘limited circumstances.’” Wooten v. Kirkland, 540 F.3d 1019, 15 1024 (9th Cir. 2008) (citing Jackson, 425 F.3d at 661). 16 As to the second prong, “[i]n determining whether a claim is ‘plainly meritless,’ 17 principles of comity and federalism demand that the federal court refrain from ruling on 18 the merits of the claim unless ‘it is perfectly clear that the petitioner has no hope of 19 prevailing.’” Dixon, 847 F.3d at 722 (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th 20 Cir. 2005)). “A contrary rule would deprive state courts of the opportunity to address a 21 colorable federal claim in the first instance and grant relief if they believe it is warranted.” 22 Id. (quoting Cassett, 406 F.3d at 624). 23 III. DISCUSSION 24 Respondent moves to dismiss the Petition on the grounds that Petitioner has failed 25 to exhaust his state court remedies with respect to all claims in the Petition. (ECF No. 12.) 26 Respondent requests that the Court dismiss the Petition, unless Petitioner elects to delete 27 his unexhausted claim, Claim Two. (Id. at 19.) In his opposition, Petitioner renews his 28 request for a stay and abeyance under Rhines. (ECF No. 17 at 22-23.) 1 A. Good Cause under Rhines 2 In renewing his request for a stay under Rhines, Petitioner contends that “he can 3 establish good cause for a stay.” (Id. at 22.) Petitioner does not articulate his grounds for 4 good cause. Rather, the majority of Petitioner’s opposition discusses the Superior Court’s 5 denial of his state habeas petition and addresses what Petitioner needs to do in order to 6 establish a prima facie case for relief in state court. (See ECF No. 17 at 5-16.) Petitioner 7 explains that he plans on filing a new state habeas petition with new evidence. (Id. at 10- 8 11, 16.) Petitioner does not address, however, why it took Petitioner nearly a year and a 9 half to file his first state habeas petition.2 10 The Court previously held that Petitioner had not established good cause for a stay 11 under Rhines. (ECF Nos. 5, 7.) The most significant development that has occurred since 12 the Court conducted that analysis is that Petitioner has now established that he filed a state 13 habeas petition on January 31, 2019. This is significant to the Court’s analysis. See 14 Williams v. Filson, No. 2:18-CV-1305 KJN P, 2018 WL 4441103, at *3 (E.D. Cal. Sept. 15 17, 2018) (noting that although a prisoner who appears pro se in state postconviction 16 proceedings has good cause for failure to exhaust under Dixon, “Dixon does not apply and 17 good cause is lacking when a pro se prisoner has not filed any state habeas petitions, 18 particularly when there is evidence that the prisoner has not been expeditious in seeking 19 relief”) (emphasis added), adopted by 2019 WL 1058099 (E.D. Cal. Mar. 6, 2019). In 20 Dixon, the Ninth Circuit held that a petitioner can show good cause for failure to exhaust 21 an ineffective assistance of trial counsel claim by asserting that he was without counsel in 22 23 24 2 Petitioner states that he has “been hampered by the interference of government 25 actors in the destruction of his trial court records.” (ECF No. 17 at 12-13.) Petitioner indicates that the trial record was “destroyed during a search by correctional officers.” (Id. 26 at 9.) However, Petitioner does not indicate when this search and destruction occurred. In 27 context, it appears this search and destruction occurred after he filed his state habeas petition in January 2019. Indeed, Petitioner did not indicate any destruction of records in 28 1 his state post-conviction case. Dixon, 847 F.3d at 721. The Ninth Circuit further held that 2 a petitioner proceeding pro se in such state post-conviction proceedings, as is the case here, 3 need not come forward with additional evidence over and above the fact that he lacked 4 counsel. Id. 5 As Petitioner is now pursuing his unexhausted Claim Two for ineffective assistance 6 of trial counsel in state post-conviction proceedings without counsel, the Court finds that 7 Petitioner has established good cause for a Rhines stay under Dixon. (See ECF No. 13-11.) 8 Accordingly, the Court turns to the next two elements of the test – claim plausibility and 9 the absence of abusive tactics – to “weed out plainly meritless claims” and to ensure that a 10 dilatory litigant’s failure to exhaust is not condoned. See Dixon, 847 F.3d at 722. 11 B. “Plainly Meritless” under Rhines 12 A federal habeas petitioner must establish that at least one of his unexhausted claims 13 is not “plainly meritless” in order to obtain a stay under Rhines. Dixon, 847 F.3d at 722 14 (citing Rhines, 544 U.S. at 277). In Claim Two, Petitioner claims that his trial counsel was 15 ineffective for “using an inexperienced, unlicensed expert witness.” (ECF No. 1 at 10.) 16 Petitioner contends that he was suffering a “drug induced psychosis” during the burglary 17 and that a video shown to the jury displayed his “bizarre behavior.” (Id.) Petitioner claims 18 that his trial counsel should have found a “licensed professional in the field of psychology 19 specializing in mental capacity to explain to the jury just what a person high on drugs is 20 capable of considering to be right from wrong” in order to show that Petitioner did not have 21 the requisite intent to commit the burglary. (Id.) Instead of doing so, Petitioner claims that 22 his trial counsel “used an unlicensed, nonprofessional witness to explain diminished 23 capacity during a drug induced psychotic episode” and that a “witness of this caliber does 24 not hold much weight for a jury.” (Id.) Petitioner claims that his trial counsel’s failure to 25 do so caused Petitioner prejudice “by allowing a harsher sentence of first degree instead of 26 second degree burglary.” (Id.) Petitioner claims a jury determination of second degree 27 burglary “would have eliminated a strike and therefore eliminated [Petitioner’s] life 28 sentence.” (Id.) 1 Claims of ineffective assistance of counsel are examined under Strickland v. 2 Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffectiveness of counsel, 3 Petitioner must establish two factors. First, he must establish that counsel’s performance 4 was deficient, i.e., that it “amounted to incompetence under ‘prevailing professional 5 norms,’ not whether it deviated from best practices or most common custom.” Harrington 6 v. Richter, 562 U.S. 86, 105 (2011) (citing Strickland, 466 U.S. at 690). Second, he must 7 establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a 8 reasonable probability that, but for counsel’s unprofessional errors, the result of the 9 proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable 10 probability is a probability sufficient to undermine confidence in the outcome.” Id. “The 11 likelihood of a different result must be substantial, not just conceivable.” Harrington, 562 12 U.S. at 112 (citing Strickland, 466 U.S. at 693). 13 The Court finds that Petitioner’s Claim Two is not plainly meritless. See Hernandez 14 v. Chappell, 923 F.3d 544, 550 (9th Cir. 2019) (finding that counsel’s “failure to investigate 15 and present a diminished capacity defense based on mental illness was unreasonable” and 16 therefore his assistance was constitutionally deficient); Lynch v. Baughman, No. CV 18- 17 3020-DOC (AGR), 2019 WL 4454509, at *2 (C.D. Cal. Aug. 6, 2019) (citing Hernandez, 18 923 F.3d at 550) (finding that the petitioner’s claim that his attorney failed to investigate 19 and prepare a mental state defense is not plainly meritless for purposes of a Rhines stay), 20 adopted by 2019 WL 4447953 (C.D. Cal. Sept. 16, 2019). At this stage, Petitioner does 21 not need to conclusively prove ineffective assistance and Respondent does not contend that 22 the claim is plainly meritless. Accordingly, the Court will turn to the next element of the 23 test. 24 C. Intentionally Dilatory Litigation Tactics under Rhines 25 A petitioner seeking a stay and abeyance must show he has not been engaged in 26 “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 277-78. Here, as noted in 27 the Court’s prior Report and Recommendation, Petitioner was represented on direct appeal 28 and “received the records from his direct appeal in early September 2017,” which was 1 approximately one month after the California Supreme Court affirmed Petitioner’s 2 judgment of guilt on August 9, 2017. (See ECF Nos. 1 at 2, 14; 4 at 7.) Petitioner did not 3 raise his ineffective assistance of trial counsel claim on direct appeal because his appellate 4 counsel informed him that it “was better left to a habeas . . . instead of the appeal.” (ECF 5 No. 1 at 3-5.) 6 However, despite being so informed by appellate counsel, Petitioner did not file a 7 state habeas petition for nearly eighteen months after the California Supreme Court’s 8 decision. Petitioner waited despite being on notice of the requirement to exhaust as early 9 as August 4, 2018 when he signed his federal Petition. The federal form petition utilized 10 and signed by Petitioner advised him of the requirement that “[i]n order to proceed in 11 federal court you must ordinarily first exhaust your state court remedies by presenting your 12 claims to the California Supreme Court.” (Id. at 5.) The petition further advised Petitioner 13 that “[e]ven if you have exhausted some grounds by raising them before the California 14 Supreme Court, you must first present all grounds to the California Supreme Court before 15 raising them in your federal Petition.” (Id. (emphasis in original).) Shortly thereafter, on 16 August 13, 2018, the Court unambiguously advised Petitioner of the exhaustion 17 requirement by sending him the Notice regarding possible dismissal of his Petition for 18 failure to exhaust state court remedies. (ECF No. 2.) Two months later, on October 14, 19 2018, Petitioner moved for a stay and abeyance, arguing good cause for a stay, but he still 20 had not filed a state habeas petition. (ECF No. 4.) Petitioner did not file a state habeas 21 petition for nearly four more months. (See ECF No. 13-11.) 22 On this record, the Court has concerns about Petitioner’s diligence and unexplained 23 delay in exhausting Claim Two. See, e.g., Williams, 2018 WL 4441103, at *3 (finding that 24 the petitioner was dilatory where the record demonstrates the petitioner was aware of the 25 need and had the ability to file a habeas petition in state court, but did not file any state 26 habeas petitions for over a year after his direct appeal was denied); Foster v. Sexton, No. 27 CV 17-7963-JEM, 2019 WL 3766555, at *13 (C.D. Cal. Aug. 9, 2019) (finding the 28 petitioner intentionally engaged in dilatory tactics where the petitioner failed to move his 1 new claims toward resolution or litigate them in any manner for almost two years, did not 2 raise them until his traverse in federal court, and failed to allege them in more than cursory 3 terms). 4 However, for the reasons set forth below, the Court cannot find that Petitioner was 5 intentionally dilatory such that he should not be able to proceed on his ineffective 6 assistance of trial counsel claim in federal court. First, as the Supreme Court recognized 7 in Martinez v. Ryan, 566 U.S. 1 (2012), “[w]ithout the help of an adequate attorney, a 8 prisoner will have . . . difficulties vindicating a substantial ineffective-assistance-of-trial- 9 counsel claim” because they “often require investigative work and an understanding of trial 10 strategy.” Id. at 11. Moreover, “[w]hen the issue cannot be raised on direct review, . . . a 11 prisoner asserting an ineffective-assistance-of-trial-counsel claim in an initial-review 12 collateral proceeding cannot rely on a court opinion or the prior work of an attorney 13 addressing that claim.” Id. at 11-12. Second, the Supreme Court in Rhines was concerned 14 with situations where a petitioner does not “have an incentive to obtain federal relief as 15 quickly as possible.” Rhines, 544 U.S. at 277. For example, “capital petitioners might 16 deliberately engage in dilatory tactics to prolong incarceration and avoid execution of the 17 sentence of death.” Id. at 277-78. Petitioner had no such apparent motivations here. 18 Therefore, the Court declines to construe Petitioner’s failure to promptly file a state habeas 19 petition as an intentionally dilatory litigation tactic. 20 For the foregoing reasons, the Court recommends that Respondent’s motion to 21 dismiss be DENIED and Petitioner’s renewed request for a Rhines stay be granted. 22 IV. CONCLUSION 23 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the Honorable 24 Michael M. Anello issue an Order: (1) approving and adopting this Report and 25 Recommendation; (2) DENYING Respondent’s motion to dismiss and granting 26 Petitioner’s renewed request for a stay and abeyance under Rhines. 27 28 1 IT IS ORDERED that no later than January 20, 2020, any party to this action may 2 || file written objections with the Court and serve a copy on all parties. The document should 3 || be captioned “Objections to Report and Recommendation.” 4 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 5 || the Court and served on all parties no later than February 3, 2020. The parties are advised 6 || that failure to file objections within the specified time may waive the right to raise those 7 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 8 1998). 9 Dated: December 23, 2019 > n. Jill L. Burkhardt 11 uited States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28