(HC) Franklin v. Valenzuela, No. 2:2015cv02081 - Document 10 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/2/2016 RECOMMENDING that petitioner's 9 motion for stay be denied; the 8 amended petition be dismissed as "mixed"; petitioner be directed to file a second amended petition containing only exhausted claims; and petitioner be advised that failure to timely file a second amended petition will result in dismissal of this action, without prejudice to re-filing if and when state remedies are exhausted as to all claims therein. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 FOR THE EASTERN DISTRICT OF CALIFORNIA 12 13 ALOYSIUS P. FRANKLIN, 14 Petitioner, 15 16 v. No. 2:15-cv-2081 GEB CKD P FINDINGS AND RECOMMENDATIONS E. VALENZUELA, 17 Respondent. 18 19 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. He challenges his 2011 conviction for second degree robbery 21 following a jury trial in the San Joaquin County Superior Court. Previously, the court determined 22 that petitioner’s original petition contained both exhausted and unexhausted claims. (ECF No. 6.) 23 Petitioner has filed an amended petition and a motion to stay this action pursuant to 24 Rhines v. Weber, 544 U.S. 269, 277 (2005). (ECF Nos. 8 & 9.) In the amended petition, 25 petitioner claims: 26 27 28 (1) The trial court abused its discretion by denying petitioner his request for continuance to retain private counsel; (2) Ineffective assistance of counsel for failure to file an identification motion; 1 1 (3) The in-court witness identification was a violation of due process; and 2 (4) Trial counsel was ineffective for allowing a firearm enhancement. 3 (ECF No. 8 at 3-5.) 4 Petitioner also lists several other claims which have not been presented to any court. (Id. 5 at 5.) He indicates these claims are based on “newly discovered evidence found in transcripts.” 6 (Id.) In the body of the amended petition, petitioner alleges that the prosecutor withheld 7 exculpatory evidence; that the trial court erred in imposing an illegal sentence enhancement; that 8 petitioner’s custodial interrogation violated the Sixth Amendment; that he was convicted through 9 the use of false evidence; and other claims. (Id. at 9-12.) In his Rhines motion, petitioner represents that the amended petition is “mixed.” (ECF 10 11 No. 9 at 1.) To obtain a Rhines stay of a mixed petition pending exhaustion of the unexhausted 12 claims, the petitioner must show that (1) the unexhausted claims are potentially meritorious; and 13 (2) petitioner had good cause for his earlier failure to exhaust state remedies. 544 U.S. at 278. The court first addresses the “potential merit” prong. Under Rhines, a district court 14 15 abuses its discretion in granting a stay when petitioner’s unexhausted claims are “plainly 16 meritless.” 544 U.S. at 277; see also Cassett v. Stewart, 406 F.3d 614, 623-624 (9th Cir. 2005) 17 (“We now join our sister circuits in adopting the Granberry1 standard and hold that a federal court 18 may deny an unexhausted petition on the merits only when it is perfectly clear that the applicant 19 does not raise even a colorable federal claim.”). Even assuming arguendo that petitioner’s claims are potentially meritorious, he has not 20 21 satisfied the “good cause” test as required by Rhines. Petitioner asserts that, even though he 22 asked his appellate attorney to raise certain issues on appeal, the attorney failed to raise those 23 claims and petitioner could not do so himself. (ECF No. 9 at 2-3.) Petitioner further asserts that 24 he did not discover some of the claims until he received the trial transcripts. (Id.) 25 26 Rhines does not go into detail as to what constitutes good cause for failure to exhaust. The Supreme Court has noted in dicta that “[a] petitioner’s reasonable confusion about whether a 27 28 1 Granberry v. Greer, 481 U.S. 129, 135 (1987). 2 1 state filing would be timely will ordinarily constitute ‘good cause’” to excuse his failure to 2 exhaust, Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), and the Ninth Circuit has held that a 3 showing of good cause does not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 4 654, 661-62 (9th Cir. 2005). Recently, the Ninth Circuit noted that “[a]n assertion of good cause 5 without evidentiary support will not typically amount to a reasonable excuse justifying a 6 petitioner’s failure to exhaust.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). However, “a 7 reasonable excuse, supported by evidence to justify a petitioner’s failure to exhaust, will.” Id. 8 In Blake, the Ninth Circuit held that ineffective assistance of counsel by post-conviction 9 counsel can be good cause for a Rhines stay. Id. at 983. Moreover, “good cause under Rhines, 10 when based on IAC, cannot be any more demanding than a showing of cause under Martinez [v. 11 Ryan, --- U.S. 132 S. Ct. 1309 (2012)] to excuse state procedural default.” Id. at 983-84. In 12 Martinez, the Supreme Court held that “a prisoner may establish cause for a default of an 13 ineffective assistance claim” where his post-conviction counsel “was ineffective under the 14 standards of Strickland v. Washington, 466 U.S. 668 (1984)[.]” See also Coleman v. Thompson, 15 501 U.S. 722, 755 (1991) (“We reiterate that counsel’s ineffectiveness will constitute cause only 16 if it is an independent constitutional violation.”). 17 The Blake court concluded that petitioner satisfied the good cause standard where he 18 argued that his post-conviction counsel “failed to conduct any independent investigation or retain 19 experts in order to discover the facts underlying his trial-counsel IAC claim; namely, evidence 20 that Blake was” subjected to severe abuse as a child and suffered from brain damage and 21 psychological disorders. 745 F.3d at 982 (internal quotation marks omitted). The petitioner 22 supported this argument with extensive evidence, including psychological evaluation reports, a 23 declaration by the private investigator who worked briefly for his post-conviction attorney, and 24 thirteen declarations from petitioner’s family and friends describing his “abhorrent” childhood 25 conditions. Id. at 982-83. The Blake court concluded that petitioner had met the 26 Coleman/Martinez standard for good cause, “leav[ing] for another day whether some lesser 27 showing will suffice to show good cause under Rhines.” Id. at 983-84 & n.7. 28 //// 3 1 Here, petitioner supplies no evidence that his appellate counsel was constitutionally 2 ineffective for failing to raise certain claims on appeal. From the petition alone, it is impossible 3 to determine whether his appellate attorney was ineffective under the Strickland standard. On the record before the court, petitioner has not shown “good cause” under Rhines. Thus 4 5 the undersigned will recommend that the amended petition be dismissed as “mixed” and 6 petitioner be directed to file a second amended petition containing only exhausted claims. See 7 745 F.3d at 980 (mixed petition must be dismissed, “leaving the prisoner with the choice of 8 returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to 9 present only exhausted claims to the district court.”), citing Rose v. Lundy, 455 U.S. 509 (1982). 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. Petitioner’s motion for stay (ECF No. 9) be denied; 12 2. The amended petition (ECF No. 8) be dismissed as “mixed”; 13 3. Petitioner be directed to file a second amended petition containing only exhausted 14 claims; and 15 4. Petitioner be advised that failure to timely file a second amended petition will result in 16 dismissal of this action, without prejudice to re-filing if and when state remedies are exhausted as 17 to all claims therein. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, petitioner may file written 21 objections with the court. Such a document should be captioned “Objections to Magistrate 22 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 23 certificate of appealability should issue in the event he files an appeal of the judgment in this 24 case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or 25 deny a certificate of appealability when it enters a final order adverse to the applicant). 26 //// 27 //// 28 //// 4 1 Petitioner is advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: February 2, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 4 5 6 7 8 9 2 / fran2081.stay 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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