(HC) Herrera v Cash, No. 1:2011cv00521 - Document 8 (E.D. Cal. 2011)
Court Description: ORDER Granting in Part Petitioner's Motion for a Stay of the Proceedings 3 ; ORDER Granting Petitioner Thirty Days from the Date of Service of this Order to Withdraw Petitioner's Unexhausted Claim and Seek a Kelly Stay of the Remaining Claim; INFORMATIONAL ORDER to Petitioner Concerning Dismissal if Unexhausted Claims are Not Withdrawn, signed by Magistrate Judge Sandra M. Snyder on 4/6/11. (Verduzco, M)
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(HC) Herrera v Cash Doc. 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 CARLOS HERRERA, 11 ) ) ) ) ) ) ) Petitioner, 12 v. 13 WARDEN CASH, ) 14 Respondent. 15 ) ) ) ) 1:11-cv—00521–SMS-HC ORDER GRANTING IN PART PETITIONER’S MOTION FOR A STAY OF THE PROCEEDINGS (Doc. 3) ORDER GRANTING PETITIONER THIRTY (30) DAYS FROM THE DATE OF SERVICE OF THIS ORDER TO WITHDRAW PETITIONER’S UNEXHAUSTED CLAIM AND SEEK A KELLY STAY OF THE REMAINING CLAIM 16 INFORMATIONAL ORDER TO PETITIONER CONCERNING DISMISSAL IF UNEXHAUSTED CLAIMS ARE NOT WITHDRAWN 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition for writ of habeas corpus pursuant 21 to 28 U.S.C. § 2254. The matter has been referred to the 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 23 Rules 302 and 304. Pending before the Court is the petition, 24 which was filed on March 21, 2011, and transferred to this 25 division of this Court on March 38, 2011. Also pending is 26 Petitioner’s motion for a stay of the proceedings filed on March 27 21, 2011. 28 1 Dockets.Justia.com 1 I. Screening the Petition 2 Rule 4 of the Rules Governing § 2254 Cases in the United 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 1990). 11 grounds of relief available to the Petitioner; 2) state the facts 12 supporting each ground; and 3) state the relief requested. 13 Notice pleading is not sufficient; rather, the petition must 14 state facts that point to a real possibility of constitutional 15 error. 16 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 17 Allison, 431 U.S. 63, 75 n. 7 (1977)). 18 that are vague, conclusory, or palpably incredible are subject to 19 summary dismissal. 20 Cir. 1990). 21 Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 22 corpus either on its own motion under Habeas Rule 4, pursuant to 23 the respondent's motion to dismiss, or after an answer to the 24 petition has been filed. 25 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 26 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 27 A petition for habeas corpus should not be dismissed without 28 leave to amend unless it appears that no tenable claim for relief 2 1 can be pleaded were such leave granted. 2 F.2d 13, 14 (9th Cir. 1971). 3 Jarvis v. Nelson, 440 Here, Petitioner, an inmate of the California State Prison 4 in Los Angeles County at Lancaster, alleges that he is serving a 5 sentence of twenty-five (25) years to life imposed in the Kings 6 County Superior Court after a conviction in 1995 of possessing a 7 sharp instrument in prison in violation of Cal. Pen. Code § 4502. 8 (Pet. 1.) 9 violation of its “Brady” duty, the state failed to disclose Petitioner raises the following claims: 1) in 10 favorable evidence useful for impeachment consisting of a) 11 information unavailable to Petitioner, who was unable to connect 12 to the internet, that Correctional Officer Jennings, a key 13 witness in Petitioner’s trial, and other correctional personnel 14 were being investigated by the FBI and/or indicted for criminal 15 misconduct relating to staging inmate fights and violence for 16 recreation and then falsifying written reports as part of a 17 cover-up at the time of Petitioner’s conduct of possessing a 18 weapon, which he now alleges and at sentencing alleged was 19 possessed for self-defense, b) information concerning attacks on 20 Petitioner, and c) unspecified confidential records; and 2) 21 ineffective assistance of trial counsel, who failed to 22 investigate Petitioner’s claims of self-defense, permit 23 Petitioner to testify, and offer evidence of the threat to 24 Petitioner’s safety at trial and sentencing, based on counsel’s 25 failure to discover evidence that the prosecution’s key witness, 26 Jennings, was under federal indictment for orchestrating fights 27 among prisoners before Petitioner was discovered with a sharp 28 instrument, which he alleged he possessed in self-defense. 3 (Pet. 1 1-25; Mot. [doc. 3], 3.) 2 and reversal of his conviction. 3 4 Petitioner seeks an evidentiary hearing (Pet. 7.) Petitioner alleges in his motion to stay the proceedings that he was sentenced on July 12, 1995. (Mot. [doc. 3], 2.) 5 II. 6 A petitioner who is in state custody and wishes to challenge 7 collaterally a conviction by a petition for writ of habeas corpus 8 must exhaust state judicial remedies. 9 The exhaustion doctrine is based on comity to the state court and Failure to Exhaust State Court Remedies 28 U.S.C. § 2254(b)(1). 10 gives the state court the initial opportunity to correct the 11 state's alleged constitutional deprivations. 12 Thompson, 501 U.S. 722, 731 (1991); Rose v. Lundy, 455 U.S. 509, 13 518 (1982); Buffalo v. Sunn, 854 F.2d 1158, 1162-63 (9th Cir. 14 1988). 15 Coleman v. A petitioner can satisfy the exhaustion requirement by 16 providing the highest state court with the necessary jurisdiction 17 a full and fair opportunity to consider each claim before 18 presenting it to the federal court, and demonstrating that no 19 state remedy remains available. 20 275-76 (1971); Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 21 1996). 22 was given a full and fair opportunity to hear a claim if the 23 petitioner has presented the highest state court with the claim's 24 factual and legal basis. 25 (1995) (legal basis); Kenney v. Tamayo-Reyes, 504 U.S. 1, 9-10 26 (1992), superceded by statute as stated in Williams v. Taylor, 27 529 U.S. 362 (2000) (factual basis). 28 Picard v. Connor, 404 U.S. 270, A federal court will find that the highest state court Duncan v. Henry, 513 U.S. 364, 365 Additionally, the petitioner must have specifically told the 4 1 state court that he was raising a federal constitutional claim. 2 Duncan, 513 U.S. at 365-66; Lyons v. Crawford, 232 F.3d 666, 669 3 (9th Cir.2000), amended, 247 F.3d 904 (9th Cir. 2001); Hiivala v. 4 Wood, 195 F.3d 1098, 1106 (9th Cir. 1999); Keating v. Hood, 133 5 F.3d 1240, 1241 (9th Cir. 1998). 6 Supreme Court reiterated the rule as follows: 7 8 9 10 11 12 13 14 In Duncan, the United States In Picard v. Connor, 404 U.S. 270, 275...(1971), we said that exhaustion of state remedies requires that petitioners "fairly presen[t]" federal claims to the state courts in order to give the State the "'opportunity to pass upon and correct’ alleged violations of the prisoners' federal rights" (some internal quotation marks omitted). If state courts are to be given the opportunity to correct alleged violations of prisoners' federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. If a habeas petitioner wishes to claim that an evidentiary ruling at a state court trial denied him the due process of law guaranteed by the Fourteenth Amendment, he must say so, not only in federal court, but in state court. 15 Duncan, 513 U.S. at 365-366. The Ninth Circuit examined the rule 16 further in Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 17 2000), as amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th 18 Cir. 2001), stating: 19 20 21 22 23 24 25 26 27 28 Our rule is that a state prisoner has not "fairly presented" (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law. See, Shumway v. Payne, 223 F.3d 982, 987-88 (9th Cir. 2000). Since the Supreme Court's decision in Duncan, this court has held that the petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is "self-evident," Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir. 1999) (citing Anderson v. Harless, 459 U.S. 4, 7... (1982), or the underlying claim would be decided under state law on the same considerations that would control resolution of the claim on federal grounds, see, e.g., Hiivala v. Wood, 195 F.3d 1098, 1106-07 (9th Cir. 1999); Johnson v. Zenon, 88 F.3d 828, 830-31 (9th Cir. 1996); Crotts, 73 F.3d at 865. 5 1 2 3 ... In Johnson, we explained that the petitioner must alert the state court to the fact that the relevant claim is a federal one without regard to how similar the state and federal standards for reviewing the claim may be or how obvious the violation of federal law is. 4 Lyons v. Crawford, 232 F.3d 666, 668-69 (9th Cir. 2000), as 5 amended by Lyons v. Crawford, 247 F.3d 904, 904-05 (9th Cir. 6 2001). 7 A federal court cannot entertain a petition that is “mixed,” 8 or which contains both exhausted and unexhausted claims. Rose v. 9 Lundy, 455 U.S. 509, 510 (1982). A district court must dismiss a 10 mixed petition; however, it must give the petitioner the choice 11 of returning to state court to exhaust his claims or of amending 12 or resubmitting the habeas petition to present only exhausted 13 claims. Rose v. Lundy, 455 U.S. at 510 (1982); Jefferson v. 14 Budge, 419 F.3d 1013, 1016 (9th Cir. 2005). In other words, 15 petitioners who file mixed petitions must either withdraw any 16 unexhausted claims and proceed only on the exhausted claims, or 17 dismiss the entire mixed petition and return later to federal 18 court with a new petition containing only exhausted claims. 19 Jackson v. Roe, 425 F.3d 654, 658-659 (9th Cir. 2005); see James 20 v. Giles, 221 F.3d 1074, 1077-78 (9th Cir. 2000). 21 Here, Petitioner has provided the Court with a copy of an 22 order of the California Supreme Court in case no. S172264 dated 23 March 30, 2010, denying Petitioner’s petition for writ of habeas 24 corpus. (Pet. 11.) 25 However, Petitioner alleges that his second ground 26 concerning ineffective assistance of counsel is presently pending 27 before the California Court of Appeal, Fifth Appellate District, 28 6 1 in case no. F061158. 2 to exhaust his claim concerning the ineffective assistance of 3 counsel. Thus, Petitioner admits that he has failed 4 III. 5 Petitioner moves for a stay of the proceedings because he Motion for Stay of the Proceedings 6 alleges that his claim concerning the alleged incompetence of 7 trial counsel is presently pending before the California Court of 8 Appeal, Fifth Appellate District, in case no. F061158. 9 (Pet. 3.) Reference to entries for case no. F061158 on the official 10 website of the California Courts reveals that a claim concerning 11 the ineffective assistance of trial counsel was pending before 12 the California Court of Appeal, Fifth Appellate District (DCA) 13 until March 24, 2011, at which time the petition was denied 14 without prejudice by an order which stated: 15 16 17 18 19 20 21 22 23 24 The “Petition for Writ of Habeas Corpus” filed on October 27, 2010, is denied without prejudice. Petitioner has failed to describe any of the incidents which occurred prior to the discovery of the razor by prison staff to show that he believed he had to arm himself in selfdefense. Thus, petitioner has failed to meet his burden under People v. Duvall (1995) 9 Cal. 4th 474, 474, of providing a sufficient factual context to support his contention that trial counsel’s failure to investigate deprived him of a defense or significant impeachment evidence. In its order denying petitioner’s petition for writ of habeas corpus in case No. 0435356, this court informed petitioner that he had to explain his delay in raising issues on habeas corpus. The facts which caused petitioner to arm himself with the razor were necessarily known to petitioner before it was discovered by prison staff. Petitioner has failed to explain why he did not file a petition for writ of habeas corpus based on his personal knowledge until many years after his trial. 25 In re Carlos Herrera on Habeas Corpus, case no. F061158, order 26 27 28 7 1 denying petition filed on March 24, 2011.1 2 The Court takes judicial notice that the official website 3 for California Appellate Courts reflects that no proceeding 4 concerning Petitioner is pending before the California appellate 5 courts at the present time. 6 In his motion for a stay, Petitioner contends that 7 successful resolution of any of his claims will moot further 8 proceedings in this Court. 9 permission to amend the petition at a later date to include the 10 newly exhausted claim should relief not be granted in the state 11 courts. 12 limitations of 28 U.S.C. § 2254(d) began to run on June 30, 2010, 13 ninety days after the Supreme Court’s denial of an earlier habeas 14 petition on March 30, 2010. 15 (Mot. 4.) (Mot. 4.) Petitioner seeks Petitioner contends that one-year statute of (Mot. 6.) Petitioner inconsistently asserts in the motion for a stay 16 that although his presently filed petition contains only fully 17 exhausted claims, he seeks to stay the present petition and amend 18 it to add a claim after the state court has passed on it. 19 6.) 20 21 A. (Mot. Legal Standards A district court has discretion to stay a petition which it 22 may validly consider on the merits. 23 269, 276 (2005); 24 2009). Rhines v. Weber, 544 U.S. King v. Ryan, 564 F.3d 1133, 1138-39 (9th Cir. A petition may be stayed either under Rhines, or under 25 26 27 28 1 The Court may take judicial notice of facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, including undisputed information posted on official web sites. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association –F.3d -, 2010 WL 5141247, *4 (No. 08-35531, 9th Cir. Dec. 20, 2010). 8 1 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). 2 F.3d 1133, 1138-41 (9th Cir. 2009). 3 King v. Ryan, 564 Under Rhines, the Court has discretion to stay proceedings; 4 however, this discretion is circumscribed by the Antiterrorism 5 and Effective Death Penalty Act of 1996 (AEDPA). 6 U.S. at 276-77. 7 abeyance [is] available only in limited circumstances” and “is 8 only appropriate when the district court determines there was 9 good cause for the petitioner’s failure to exhaust his claims 10 Rhines, 544 In light of AEDPA’s objectives, “stay and first in state court.” Id. at 277-78. 11 A petition may also be stayed pursuant to the procedure set 12 forth by the Ninth Circuit in Kelly v. Small, 315 F.3d 1063 (9th 13 Cir. 2003). 14 files an amended petition deleting the unexhausted claims; 2) the 15 district court stays and holds in abeyance the fully exhausted 16 petition; and 3) the petitioner later amends the petition to 17 include the newly exhausted claims. 18 1133, 1135 (9th Cir. 2009). 19 allowed if the additional claims are timely. 20 21 B. Under this three-step procedure: 1) the petitioner See, King v. Ryan, 564 F.3d However, the amendment is only Id. at 1140-41. Petitioner’s Motion Petitioner does not appear to be requesting a stay pursuant 22 to Rhines v. Weber, 544 U.S. 269, 276 (2005). 23 Petitioner offers to withdraw his unexhausted claim, and then 24 seeks to amend the petition to add the exhausted claim after 25 conclusion of state court proceedings.2 This is because 26 27 28 2 The Court notes that if Petitioner did intend to seek a stay pursuant to Rhines, it does not appear that Petitioner has shown good cause. The Supreme Court has not articulated what constitutes good cause under Rhines, but it has stated that “[a] petitioner's reasonable confusion about whether a state filing would be timely 9 1 Because Petitioner offers to withdraw his unexhausted claim, 2 it appears that Petitioner is seeking a stay pursuant to Kelly. 3 A Kelly stay is effected in three steps: 4 file an amended petition deleting the unexhausted claims; 2) the 5 district court will stay and hold in abeyance the fully exhausted 6 petition; and 3) the petitioner will later amend the petition to 7 include the newly exhausted claims. 8 1133, 1135 (9th Cir. 2009). 9 allowed if the additional claims are timely. 10 1) the petitioner must See, King v. Ryan, 564 F.3d However, the amendment is only Id. at 1140-41. The Court notes that it is unclear whether Petitioner will 11 have sufficient time to be able to exhaust his unexhausted 12 claims. 13 imparted in a King/Kelly stay, nor are the exhausted claims 14 adjudicated in this Court during the pendency of such a stay. 15 Further, the undersigned is not making any determination at this 16 time that Petitioner can timely exhaust any claims prior to the 17 expiration of the statute of limitations. 18 However, no statute of limitations protection is Here, the petition appears to contain one exhausted claim 19 and one claim that has not been exhausted. 20 given an opportunity to withdraw the second claim in his petition Petitioner will be 21 22 23 24 25 26 27 28 will ordinarily constitute ‘good cause’ for him to file” a “protective” petition in federal court. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). The Ninth Circuit has held that the standard is a less stringent one than that for good cause to establish equitable tolling, which requires that extraordinary circumstances beyond a petitioner's control be the proximate cause of any delay. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). The Ninth Circuit has recognized, however, that “a stay-and-abeyance should be available only in limited circumstances.” Id. at 661 (internal quotation marks omitted); see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276 (2009) (concluding that a petitioner’s impression that counsel had exhausted a claim did not demonstrate good cause). Here, Petitioner’s claim concerning ineffective assistance is related to the Brady claim; Petitioner’s knowledge of the existence of the Brady claim would seem to include an understanding of counsel’s alleged failings or omissions with respect to the Brady evidence. It would appear that Petitioner had an opportunity to exhaust both claims at one time. Petitioner has not shown why he did not exhaust the counsel claim at the same time that he exhausted the Brady claim. 10 1 concerning ineffective assistance of counsel, which is 2 unexhausted, and to have the fully exhausted petition stayed 3 pending exhaustion of the other claim in state court. 4 must dismiss the petition without prejudice unless Petitioner 5 withdraws the unexhausted claims and proceeds with the exhausted 6 claims in lieu of suffering dismissal. The Court 7 IV. 8 Accordingly, it is hereby ORDERED that: 9 1) Petitioner’s request to proceed to effect a stay pursuant 10 11 Disposition to Kelly v. Small is GRANTED in part; and 2) Petitioner is GRANTED thirty (30) days from the date of 12 service of this order to file a motion to withdraw his 13 unexhausted claim and to seek a stay of the fully exhausted 14 petition; and 15 3) Petitioner is INFORMED that in the event Petitioner does 16 not file such a motion, the Court will assume Petitioner desires 17 to return to state court to exhaust the unexhausted claims and 18 will therefore dismiss the entire petition without prejudice. 19 In an abundance of caution, the Court further informs 20 Petitioner that a dismissal for failure to exhaust will not 21 itself bar him from returning to federal court after exhausting 22 his available state remedies. 23 Petitioner will not be subject to the one-year statute of 24 limitations imposed by 28 U.S.C. § 2244(d). 25 limitations period is tolled while a properly filed request for 26 collateral review is pending in state court, 28 U.S.C. § 27 2244(d)(2), it is not tolled for the time an application is 28 pending in federal court. However, this does not mean that Although the Duncan v. Walker, 533 U.S. 167, 172 11 1 (2001). 2 3 Petitioner is further informed that the Supreme Court has held in pertinent part: 4 [I]n the habeas corpus context it would be appropriate for an order dismissing a mixed petition to instruct an applicant that upon his return to federal court he is to bring only exhausted claims. See Fed. Rules Civ. Proc. 41(a) and (b). Once the petitioner is made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. The failure to comply with an order of the court is grounds for dismissal with prejudice. Fed. Rules Civ. Proc. 41(b). 5 6 7 8 9 Slack v. McDaniel, 529 U.S. 473, 489 (2000). Therefore, 10 Petitioner is forewarned that in the event he returns to federal 11 court and files a mixed petition of exhausted and unexhausted 12 claims, the petition may be dismissed with prejudice. 13 14 IT IS SO ORDERED. 15 16 Dated: icido3 April 6, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12
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