Reeves v. ALLISON ( 2020 )

FILED 2 | JAN ~7 2029 | 3 —_— CLEHK Us DISTRICT COUR 4 SOUTHERN DISTRICT OF CALIF □ ‘ . 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 |} DONALD LEE REEVES, III, Case No.: 19cv1886-WQH(RBB) 12 . Petitioner, REPORT AND 13 || Vv. RECOMMENDATION OF UNITED 14 || RAYMOND MADDEN, Warden, STATES MAGISTRATE JUDGE RE: GRANTING IN PART AND 15 Respondent.| DENYING IN PART MOTION TO 16 STAY AND ABEY [ECF NO. 4] 17 . On September 30, 2019, Donald Lee Reeves, III, a state prisoner proceeding pro se 18 and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 19 § 2254 against Respondent Raymond Madden, Warden [ECF No. 1]. Petitioner 20 simultaneously filed a Motion to Stay and Abey, or Stay Petition and Dismiss Unexhausted Claims [ECF No. 4], with an attached Memorandum of Points and 22 Authorities [id. at 2-6] and a Declaration of Donald Lee Reeves [id. Attach. #1]. For the 23 reasons set forth herein, the Cour. RECOMMENDS that Petitioner's motion be 24 GRANTED IN PART and DENIED IN PART. 25 /// 26 /// 27 /// 28 1 L FACTUAL AND PROCEDURAL BACKGROUND 2 In a court trial held in 2016, Petitioner was convicted of two counts of murder 3 }}(counts 1 and 3), three counts of robbery (counts 2, 4, and 5), two counts of assault by 4 ||means likely to produce great bodily injury (counts 6 and 7), and possession of 5 |{methamphetamine (count 9). (Pet. 1-2, 155-56, 231-35, ECF No. 1.) The trial court 6 || found that special circumstance allegations of multiple murder and robbery-murder were 7 |\true. (Id. at 2, 156.) Reeves was sentenced to two consecutive terms of life in prison 8 || without the possibility of parole. (Id. at 1, 156.) Petitioner appealed, raising the 9 || following six claims: ground one challenged the sufficiency of the evidence to support 10 conviction for the robbery in count 4; grounds two and four disputed the felony |)murder convictions in counts 1 and 3; grounds three and five asserted the robbery-murder 12 special circumstance findings in counts 1 and 3 lacked evidence; and ground six alleged 13 || that two indeterminate sentences of life in prison without parole constituted cruel and 14 || unusual punishment under the California and United States Constitutions. (Id. at 2, 39- 15 ||42.) The California Court of Appeal affirmed the trial court judgment on March 28, 16 |}2018. (Id. at 2, 155-76.) Petitioner filed a petition for review with the California 17 ||Supreme Court raising the same six grounds; the petition was summarily denied on June 18 2018. (Id. at 2, 131.) Reeves filed a petition for a writ of certiorari before the United 19 || States Supreme Court, which was denied on November 13, 2018. (Id. at 3, 530.) He did 20 ||not seek collateral review in state court prior to filing his federal petition. (Id. at 3.) 21 On September 26, 2019, Petitioner constructively filed the present Petition for Writ 22 || of Habeas Corpus under 28 U.S.C. § 2254, raising eight claims. Reeves reasserts 23 || grounds one through six from his direct appeal and adds two additional claims: ground 24 || seven alleges that the trial court erred by failing to remove his trial counsel, 25 || constructively denying him effective assistance of counsel; and ground eight contends 26 Petitioner's trial counsel was ineffective because he failed to investigate potential 27 defenses. (Id. at 6-13.) Petitioner concedes that grounds seven and eight were not 28 || exhausted in state court. (Id. at 12-13.) 1 Petitioner states that on the same day he constructively filed his federal petition, he 2 || filed a Petition for Writ of Habeas Corpus in San Diego Superior Court. (Mot. Stay 3 || Attach. #1 Reeves Decl. 1, ECF No. 4.) His state petition seeks relief on his two | 4 || unexhausted claims, grounds seven and eight of his federal petition. (See Pet. 187-229, 5 || ECF No. 1.) At the same time he filed his federal petition, Petitioner also filed a separate 6 || Motion to Stay and Abey Petition, or Stay Petition and Dismiss Unexhausted Claims, 7 || asking the Court to stay his federal petition and hold the proceedings in abeyance to 8 || permit him to return to state court to exhaust his additional claims under the "stay and 9 ||abey" procedure set forth in Rhines v. Weber, 544 U.S. 269 (2005), or to stay the case 10 || under the "withdrawal and abeyance" procedure under King v. Ryan, 564 F.3d 1133 (9th 11 |) Cir. 2009). (Mot. Stay 1, ECF No. 4.) On October 30, 2019, Respondent filed an 12 || opposition, arguing that Reeves is not entitled to a stay under Rhines because he has not 13 |} shown good cause. (Opp'n 1, 3, ECF No. 8.) Respondent, however, does not oppose a 14 || stay of only the exhausted claims under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) 15 {| (overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149) (9th Cir. 2001). 16 ||(id.) Petitioner was provided a deadline of December 12, 2019, to file a reply, but he did 17 do so. 18 Il. LEGAL STANDARDS. 19 A federal court may not address a petition for writ of habeas corpus unless the 20 || petitioner has exhausted state remedies with respect to each claim raised. See 28 21 |/U.S.C.A. § 2254(b)(1)(A) (West 2006); Picard v. Connor, 404 U.S. 270, 275 (1982). 22 || Generally, to satisfy the exhaustion requirement, a petitioner must "fairly present[]' his 23 || federal claim to the highest state court with jurisdiction to consider it," or "demonstrate[] 24 || that no state remedy remains available." Johnson v. Zemon, 88 F.3d 828, 829 (9th Cir. 25 || 1996) (citations omitted). Pursuant to the Anti-Terrorism and Effective Death Penalty 26 || Act ("AEDPA"), all federal habeas petitions are subject to a one-year statute of 27 || limitations, and claims not exhausted and presented to the federal court within the one- 28 || year period are forfeited. 28 U.S.C.A. § 2244(d)(1) (West 2006); Dixon v. Baker, 847 1 || F.3d 714, 719 (9th Cir. 2017). A district court may not consider a "mixed" federal habeas 2 || petition containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 3 522 (1982). 4 Under Rhines, a district court has discretion to stay a mixed federal habeas petition 5 || while the petitioner returns to state court to exhaust any unexhausted claims without losing his right to federal habeas review due to the one-year statute of limitations. 7 || Rhines, 544 U.S. at 275-76. Once the petitioner exhausts the state court remedies for all 8 || of his claims, the district court lifts the stay and allows the petitioner to proceed in federal 9 on all claims. See id. The "stay and abey" procedure is available only in "limited 10 circumstances" when the following three conditions are met: (1) the petitioner 11 ||demonstrates "good cause" for failing to exhaust his claims in state court; (2) the 12 || unexhausted claims are potentially meritorious; and (3) there is no indication that the 13. || petitioner engaged in dilatory litigation tactics. Id. at 277-78; see also Wooten v. 14 || Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). "When implemented, the Rhines 15 || exception eliminates entirely any limitations issue with regard to the originally 16 || unexhausted claims, as the claims remain pending in federal court throughout." King, 17 || 564 F.3d at 1140. 18 A petitioner may also be granted a stay under the "withdrawal and abeyance" 19 || procedure outlined by the Ninth Circuit in Kelly, 315 F.3d at 1070-71, and King, 564 20 || F.3d at 1135, 1140-41. The withdrawal and abeyance procedure involves three steps: (1) 21 petitioner amends his petition to delete any unexhausted claims; (2) he requests that 22 || the court stay the proceedings and hold the fully exhausted petition in abeyance while he 23 |/returns to state court to exhaust the deleted claims; and (3) the petitioner subsequently 24 to amend his federal habeas petition to include the newly exhausted claims after 25 ||exhaustion is complete. King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). 26 || Although this procedure does not require the petitioner to demonstrate good cause for his 27 || failure to timely exhaust, the newly exhausted claims must be either timely under the 28 {| statute of limitations or must "relate back" to the claims in the fully exhausted federal 1 petition. Id. at 1140-41; see also Mayle v. Felix, 545 U.S. 644, 662-64. A new claim 2 ||relates back to an existing claim if the claims share a "common core of operative facts." 3 || Mayle, 545 U.S. at 664. 4 I. DISCUSSION 5 ||A. Stay Pursuant to Rhines 6 In Rhines, the Supreme Court cautioned that its stay procedure must not run afoul 7 AEDPA's twin purposes—reducing delays in the execution of state and federal 8 || criminal sentences and encouraging petitioners to seek relief from state court in the first 9 |instance. Rhines, 544 U.S. at 276 (citations omitted). To address this concern, the "stay 10 abey" procedure under Rhines requires that (1) the petitioner demonstrate "good 11 cause" for failing to exhaust his claims in state court, (2) the unexhausted claims be 12 || potentially meritorious, and (3) there be no indication that the petitioner engaged in 13 || dilatory litigation tactics. Id. at 277-78. 14 1. Good cause for failure to exhaust 15 a. Petitioner has not established good cause under Rhines 16 The stay and abey procedure under Rhines is appropriate only when the district 17 || court determines there was good cause for the petitioner's failure to first exhaust his 18 ||claims in state court. Id. "The caselaw concerning what constitutes 'good cause! under 19 || Rhines has not been developed in great detail." Dixon v. Baker, 847 F.3d 714, 720 (9th 20 || Cir. 2017) (citing Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014)). In the Ninth 21 Circuit, good cause "turns on whether the petitioner can set forth a reasonable excuse, □ 22 supported by sufficient evidence, to justify [the failure to exhaust a claim in state court]." 23 || Blake, 745 F.3d at 982 (citing Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)). A 24 showing of good cause does not require "extraordinary circumstances," (see Jackson v. 25 ||Roe, 425 F.3d 654, 661-62 (9th Cir. 2005)), but a petitioner may not simply assert that he 26 || was "under the impression" that a claim had been exhausted, (see Wooten, 540 F.3d at 27 || 1024). "An assertion of good cause without evidentiary support will not typically amount 28 ||to a reasonable excuse justifying a petitioner's failure to exhaust." Blake, 745 F.3d at I ||982. A reasonable excuse supported by evidence, however, does constitute good cause. 2 3 Here, Petitioner has not set forth a reasonable excuse, supported by evidence, to 4 || support a finding of good cause for his failure to exhaust grounds seven and eight of his 5 || federal petition in state court. Reeves attests that in the course of preparing his federal 6 || habeas petition, he "discovered several meritorious claims that had not been exhausted in 7 || the California courts," including ineffective assistance of trial and appellate counsel 8 |iclaims. (Mot. Stay Attach. #1 Reeves Decl. 1, ECF No. 4.) In his federal petition, he 9 || hints that the failure to exhaust grounds seven and eight of his federal petition rested on 10 ||his counsel: "Petitioner found grounds that should have been raised oy trial and [a]ppeal 11 ||}counsel and [they] failed to do so[.]" (Pet. 5, ECF No. 1.) Petitioner Reeves provides no 12 || further argument concerning good cause nor does he support his assertions with any 13 |}evidence. He does not provide any explanation about why he did not pursue grounds 14 || seven and eight in state court collateral proceedings prior to filing his federal petition. 15 || While he has apparently now filed a petition for writ of habeas corpus in state court, he 16 |jhas not expressed any confusion about whether his state filing was timely. See, e.g., 17 || Pace, 544 U.S. at 416 ("A petitioner's reasonable confusion about whether a state filing 18 || would be timely will ordinarily constitute 'good cause’ for him to file in federal court."). 19 short, Petitioner's bare assertions are insufficient to support a showing of good cause. 20 || See Blake, 745 F.3d at 982 (stating that showing of good cause requires a reasonable 21 ||excuse supported by sufficient evidence). 22 b. Petitioner cannot rely on his pro se status to show good cause 23 Respondent argues that the absence of counsel is insufficient to show good cause. 24 || (See Opp'n 2-3, ECF No. 8.) In Dixon v. Baker, the Ninth Circuit noted that it had 25 || previously held that ineffective assistance by post-conviction counsel can be good cause 26 || for a Rhines stay. See Dixon, 847 F.3d at 720-21 (citing Blake, 745 F.3d at 982-83). The 27 accordingly found that the petitioner in Dixon had established good cause for his 28 || failure to exhaust his claims in state court because he was not represented by counsel in 1 state postconviction proceedings. Dixon, 847 F.3d at 720-21. The court reasoned that 2 ||"[a] petitioner cannot have had effective assistance of counsel if he had no counsel at all." 3 at 721. The court explained: 4 A petitioner who is without counsel in postconviction proceedings 5 cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious 6 claim simply because he lacked counsel. Such a denial strikes us as unwarranted when even a petitioner who did have counsel in his state post- 7 oe conviction proceedings has a path to a stay under Rhines if he alleges a 8 plausible claim that his post-conviction counsel was ineffective. ? Id. at 721-22 (citing Blake v. Baker, 745 F.3d at 983-84). Respondent contends that the 10 present case is distinguishable from Dixon because Reeves, who was represented by i counsel through his direct appeal but is now pro se, did not file a state habeas petition 2 prior to filing in federal court and thus did not appear pro se in his state post-conviction I3 proceedings. (Opp'n 3, ECF No. 8.) In Torres v. McDowell, 292 F. Supp.3d 983 (C.D. Cal. 2017), the district court, in Is a factually similar situation as here, found Dixon inapplicable when there have been no > state post-conviction proceedings. The petitioner in Torres simultaneously filed his federal petition, motion for stay, and state superior court habeas petition just over a 18 month before the federal statute of limitations was apparently set to expire. Id. at 990. 19 The petitioner was not represented by counsel in his superior court habeas proceeding. 20 Id. The district court found that the Ninth Circuit's reasoning in Dixon did not apply 1 because Torres, whose superior court petition was his first attempt at state court 22 exhaustion and who was clearly aware that his claims were exhausted because he filed his 23 motion to stay in federal court the same day, was not "denied the opportunity to exhaust a 24 potentially meritorious claim simply because he lacked counsel." Id. (quoting Dixon, 847 F.3d at 721). The same rationale applies here, and thus the Court agrees with Respondent 26 that Petitioner cannot rely on Dixon v. Baker to establish good cause. 28 1 || Because Petitioner has failed to show good cause for his failure to exhaust, the Court 2 ||need not consider the second and third Rhines factors. See Wooten, 540 F.3d at 1023. 3 Based on the foregoing, the Court RECOMMENDS that Petitioner's motion for a 4 ||Rhines stay be DENIED. 5 ||B. Stay Under Kelly/King 6 Under the Kelly and King cases, the Court may stay a petition containing only 7 ||exhausted claims while allowing the petitioner to proceed to state court to exhaust 8 || additional claims. King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). As set 9 || forth above, a stay under the withdrawal and abeyance procedure set forth in Kelly and 10 || King involves three steps: (1) the petitioner amends his petition to delete any 11 ||unexhausted claims; (2) he requests that the court stay the proceedings and hold the fully 12 ||exhausted petition in abeyance while he returns to state court to exhaust the deleted 13 ||claims; and (3) the petitioner subsequently seeks to amend his federal habeas petition to 14 |/include the newly exhausted claims after exhaustion is complete. King, 564 F.3d at 1135 15 || (citing Kelly, 315 F.3d at 1070-71). A petitioner is only allowed to add his newly- 16 || exhausted claims back into the federal petition if the claims either are independently 17 timely under AEDPA or "relate back" to the exhausted claims in the pending petition. 18 || King, 564 F.3d at 1140-41. As explained in King, because of AEDPA's one-year statute 19 || of limitations, "demonstrating timeliness will often be problematic" for a petitioner and, 20 therefore, the process is not only cumbersome, but risky. King, 564 F.3d at 1140-41. 21 A Kelly/King stay does not impose the good cause requirement associated with a 22 ||Rhines stay. See King, 564 F.3d at 1135. Under the circumstances of this case, a 23 ||Kelly/King stay is warranted. Moreover, Respondent does not oppose a stay under the 24 || Kelly and King procedures. (Opp'n 1, 3, ECF No. 8.) Accordingly, it is □ 25 || RECOMMENDED that Petitioner's motion for a Kelly/King stay be GRANTED. 26 IV. CONCLUSION AND RECOMMENDATION 27 For the foregoing reasons, IT IS HEREBY RECOMMENDED that Petitioner's 28 || motion to stay and abey bb GRANTED IN PART and DENIED IN PART. The Court 1 |}recommends that Petitioner's motion for a stay pursuant to Rhines be DENIED but his 2 ||motion for a Kelly/King stay be GRANTED. 3 The Court further RECOMMENDS that: 4 1. Petitioner be granted thirty days to file a First Amended Petition that deletes 5 || his unexhausted claims (grounds seven and eight in his original federal petition); 6 2. Petitioner be required to file a status report to update the Court on his 7 || progress in exhausting his claims (grounds seven and eight) every sixty days; 8 3. pevioner be required to lodge with the Court a file-stamped copy of each 9 || state-court petition and, as soon as any state court rules on any of his petitions, a copy of 10 the ruling; 11 4. If Petitioner does not obtain relief from the state courts, his First Amended 12 || Petition should be held in abeyance until thirty days after the California Supreme Court 13 || denies Petitioner's unexhausted claims. During that thirty day period, Petitioner should 14 required to file a motion to amend the First Amended Petition to add his newly 15 exhausted claims and should lodge a proposed Second Amended Petition. In the motion, 16 || Petitioner must demonstrate that the claims are timely or relate back to the original 17 || exhausted claims, and he should attach a copy of the California Supreme Court's ruling 18 his state-court petition; and 19 5. Petitioner be warned that the failure to strictly comply with the above 20 requirements may result in this action being dismissed for failure to prosecute or comply 21 || with court orders, or the stay being lifted and the Court proceeding to adjudicate only the 22 exhausted claims in the First Amended Petition. 23 IT IS HEREBY ORDERED that any party to this action may file written 24 || objections with the Court and serve a copy on all parties February 3, 2020. The 25 || document should be captioned “Objections to Report and Recommendation.” 26 IT IS FURTHER ORDERED that any Reply to the Objections shall be filed with 27 ||the Court and served on all parties February 24, 2020. The parties are advised that 28 || failure to file objections within the specified time may waive the right to raise those 1 || objections on appeal of the Court’s Order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 2 1998); Martinez v. YIst, 951 F.2d 1153, 1157 (9th Cir. 1991). 3 4 |)Dated: January 7, 2020 Aude Panty 6 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 □ 18 19 □ 20 21 . 22 || 23 24 25 26 27 28