Shimp v. Paramo et al, No. 3:2012cv01537 - Document 13 (S.D. Cal. 2013)

Court Description: ORDER denying Petitioner's 3 Motion for Stay and Abeyance filed in Conjunction with Petition for Writ of Habeas Corpus. Signed by Magistrate Judge Ruben B. Brooks on 2/11/13. (All non-registered users served via U.S. Mail Service)(cge)

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Shimp v. Paramo et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHANNON SHIMP, Petitioner, 12 13 v. 14 DANIEL PARAMO, KAMALA HARRIS, 15 Respondents. ) ) ) ) ) ) ) ) ) ) Civil No. 12cv01537 AJB(RBB) ORDER DENYING PETITIONER'S MOTION FOR STAY AND ABEYANCE FILED IN CONJUNCTION WITH PETITION FOR WRIT OF HABEAS CORPUS [ECF NO. 3] 16 17 Petitioner Shannon Shimp, a state prisoner proceeding pro se 18 and in forma pauperis, filed a Petition for Writ of Habeas Corpus 19 on June 21, 2012 [ECF Nos. 1, 5].1 20 his convictions for vehicular manslaughter on several bases.2 21 ground one, he alleges that he is actually innocent. 22 In ground two, he contends that the trial court erred by failing to There, Petitioner challenges In (Id. at 9.) 23 1 24 25 26 27 28 Because Shimp's Petition and "Motion for Stay and Abeyance filed in Conjunction with Petition for Writ of Habeas Corpus" are not consecutively paginated, the Court will cite to each using the page numbers assigned by the electronic case filing system. 2 At the same trial where Shimp was found guilty of vehicular manslaughter, he was also convicted of driving under the influence of alcohol and driving with a blood alcohol content of .08 or more and causing injury. (Lodgment No. 8, Clerk's Tr. vol. 1, 153-54, Sept. 17, 2009.) Shimp does not appear to challenge these other convictions in his federal petition. 1 12cv1537 AJB(RBB) Dockets.Justia.com 1 instruct the jury on excusable homicide. 2 asserts, in ground three, that his manslaughter convictions were 3 obtained as a result of prosecutorial misconduct. 4 The fourth claim for relief is that Shimp's trial counsel was 5 ineffective for failing to raise grounds one, two, and three. 6 at 37.) 7 appellate counsel was ineffective for failing to raise grounds one, 8 two, three, and four. 9 that Shimp was wrongfully sentenced because he had "no prior moving 10 (Id. at 18.) Petitioner (Id. at 30.) (Id. In ground five of the Petition, he argues that his (Id. at 38.) Finally, the sixth claim is (Id. at 39.) violations of any kind." On the same day that he filed his Petition, Shimp also filed a 11 12 "Motion for Stay and Abeyance Filed in Conjunction with Petition 13 for Writ of Habeas Corpus" [ECF No. 3]. 14 to stay his federal petition while he exhausts five of the 15 aforementioned claims in state court. 16 ECF No. 3.) 17 There, he asks the Court (Mot. Stay & Abeyance 1-2, On June 26, 2012, the Court issued an order setting a briefing 18 schedule for the motion to stay [ECF No. 6]. 19 that in Petitioner's Motion for Stay, he had "not presented any 20 facts in an attempt to demonstrate good cause for his failure to 21 timely exhaust his state court remedies." 22 Schedule 3, ECF No. 6.) 23 17, 2012, to file supplemental briefing to cure these deficiencies. 24 (Id.) 25 motion by August 7, 2012. 26 The Court cautioned (Order Setting Briefing Shimp was given three weeks, until July Respondents were also ordered to file any response to the (Id.) Neither Petitioner nor Respondents filed a response. On 27 September 14, 2012, the Court held a status conference for 28 Respondents to address why they failed to address Shimp's Motion 2 12cv1537 AJB(RBB) 1 for Stay. 2 hearing, the Court extended the deadline for Respondents Paramo and 3 Harris to file a response; Petitioner was also given an extension 4 to file a reply. 5 (Mins., Sept. 14, 2012, ECF No. 9.) As a result of the (Id.) On September 20, 2012, Respondents filed a "Response to Motion 6 for Stay and Abeyance of Petition for Writ of Habeas Corpus" [ECF 7 No. 10]. 8 under Rhines v. Weber, 544 U.S. 269 (2005), because he has not 9 shown good cause for his failure to raise his unexhausted claims in There, they argue that Shimp should not be granted a stay 10 state court at an earlier time. 11 Paramo and Harris state that Petitioner may, however, be eligible 12 for a stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 13 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 14 1143, 1149 (9th Cir. 2007). 15 (Resp. Mot. Stay 4, ECF No. 10.) Shimp did not file a reply. The Court finds Petitioner's motion suitable for resolution on 16 the papers. 17 motions may be decided without oral argument); Broadnax v. Cate, 18 Civil No. 12cv560 GPC (RBB), 2012 WL 5335289, at *2-3, (S.D. Cal. 19 Oct. 26, 2012) (resolving motion to stay with an order instead of a 20 report and recommendation). 21 lodgments, the Motion for Stay, and Paramo and Harris's Response to 22 Motion, and for the reasons discussed below, Petitioner's "Motion 23 for Stay and Abeyance Filed in Conjunction with Petition for Writ 24 of Habeas Corpus" [ECF No. 3] is DENIED. 25 26 See S.D. Cal. Civ. R. 7.1(d)(1) (providing that I. Upon review of Shimp's Petition, the FACTUAL AND PROCEDURAL BACKGROUND Shimp spent the afternoon of July 22, 2008, drinking at a bar 27 in Ramona, California. 28 D056650, slip op. at 2 (Cal. Ct. App. Apr. 26, 2011).) (Lodgment No. 4, People v. Shimp, No. 3 He then 12cv1537 AJB(RBB) 1 proceeded to drive home. 2 double-yellow line to pass several cars in front of him, lost 3 control of his vehicle, and struck an oncoming car. 4 driver of that vehicle, Ian Kinney, was killed. 5 passenger, Tessa Medearis, was injured in the collision but 6 survived. 7 killed. 8 alcohol content was more than twice the legal limit. 9 Methamphetamine was also found in his system. 10 (Id.) (Id.) (Id.) While driving, he crossed a (Id.) (Id.) The Kinney's Shimp's passenger, Joseph Edwards, was also At the time of the incident, Petitioner's blood(Id.) (Id.) On September 17, 2009, in the Superior Court of California, 11 County of San Diego, a jury convicted Shimp of two counts of gross 12 vehicular manslaughter while intoxicated; driving under the 13 influence of alcohol and causing injury; and driving with a blood 14 alcohol content of .08 or more and causing injury. 15 8, Clerk's Tr. vol. 1, 149, 151, 153-54, Sept. 17, 2009.) 16 found that Shimp personally inflicted great bodily injury upon 17 Joseph Edwards, Tessa Medearis, and Ian Kinney, and that Petitioner 18 caused death or bodily injury to more than one victim. 19 January 8, 2010, Shimp was sentenced to sixteen years in prison for 20 the vehicular manslaughter of Ian Kinney. 21 8, 2010.) 22 (Id.) 23 (Lodgment No. The jury (Id.) On (Id. vol. 2, 291, Jan. Sentencing was stayed as to the remaining convictions. Petitioner appealed the vehicular manslaughter convictions on 24 July 23, 2010; they were affirmed by Division One of the California 25 Court of Appeal, Fourth Appellate District, on April 26, 2011. 26 (See Lodgment No. 1, Appellant's Opening Brief, People v. Shimp, 27 No. D056650 (Cal. Ct. App. Apr. 26, 2011); Lodgment No. 4, People 28 v. Shimp, No. D056650, slip op. at 1, 7.) 4 On June 6, 2011, he 12cv1537 AJB(RBB) 1 petitioned the California Supreme Court for review. 2 5, Petition for Review, People v. Shimp, No. SD2010700429 (Cal. 3 July 13, 2011).) 4 without opinion on July 13, 2011. 5 Shimp, No. S193717, order at 1 (Cal. July 13, 2011).) 6 (Lodgment No. The California Supreme Court denied the petition (Lodgment No. 6, People v. Shimp then filed a Petition for Writ of Habeas Corpus in this 7 Court on June 21, 2012 [ECF No. 1]. 8 has also filed a state habeas corpus petition, but provides no 9 proof of that filing. 10 11 II. Petitioner maintains that he (See Pet. 3, ECF No. 1.) LEGAL STANDARD FOR EXHAUSTION Before a federal court may grant habeas relief on a claim, a 12 petitioner must exhaust all available state judicial remedies. 28 13 U.S.C.A. § 2254(b)(1)(A) (West 2006); Rhines, 544 U.S. at 273-74 14 (referring to total exhaustion requirement of Rose v. Lundy, 455 15 U.S. 509, 522 (1982), abrogated on other grounds by Rhines, 544 16 U.S. 269). 17 presented it to the state courts. 18 365 (1995) (citing Picard v. Connor, 404 U.S. 270, 275 (1971)). 19 meet the fair presentation requirement, the petitioner must "alert 20 the state courts to the fact that he [is] asserting a claim under 21 the United States Constitution." 22 1106 (9th Cir. 1999) (citing Duncan, 513 U.S. at 365-66). 23 petitioner must "provide the state courts with a 'fair opportunity' 24 to apply controlling legal principles to the facts bearing upon his 25 constitutional claim." 26 (citing Picard, 404 U.S. at 276-77). 27 "'opportunity to pass upon and correct' alleged violations of its 28 prisoners' federal rights," comity is promoted, and disruption of A claim is exhausted only when a petitioner has fairly Duncan v. Henry, 513 U.S. 364, To Hiivala v. Wood, 195 F.3d 1098, The Anderson v. Harless, 459 U.S. 4, 6 (1982) 5 By giving state courts the 12cv1537 AJB(RBB) 1 state judicial proceedings is prevented. 2 (quoting Picard, 404 U.S. at 275); see also Rose, 455 U.S. at 518; 3 Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005). 4 Duncan, 513 U.S. at 365 Constitutional claims raised in federal proceedings must be 5 presented to the state courts first. Baldwin v. Reese, 541 U.S. 6 27, 31-32 (2004). 7 to consider the factual and legal bases of a petitioner's claims 8 before they are presented to the federal court. 9 Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Picard, 404 The highest state court must have an opportunity Weaver v. 10 U.S. at 276; Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996)); 11 see also Duncan, 513 U.S. at 365; Scott v. Schriro, 567 F.3d 573, 12 582 (9th Cir. 2009); Davis v. Silva, 511 F.3d 1005, 1008 (9th Cir. 13 2008). 14 state's highest court. 15 of comity, federal courts should not consider a claim in a habeas 16 corpus petition until after the state courts have had an 17 opportunity to act . . . ."); Anderson v. Morrow, 371 F.3d 1027, 18 1036 (9th Cir. 2004) ("AEDPA's exhaustion requirement entitles a 19 state to pass on a prisoner's federal claims before the federal 20 courts do so."). 21 claim has been fairly presented to the state courts, the exhaustion 22 requirement is satisfied." 23 A claim is not exhausted if it is pending before the See Rose, 455 U.S. at 515 ("[A]s a matter "It follows, of course, that once the federal Picard, 404 U.S. at 275. Courts may deny an application for habeas relief on the merits 24 even if the petitioner has not yet exhausted his state judicial 25 remedies. 26 to grant relief on unexhausted claims. 28 U.S.C.A. § 2254(b)(2). But courts have no authority Id. § 2254(b)(1)(A). 27 28 6 12cv1537 AJB(RBB) 1 2 III. A. 3 DISCUSSION Whether Shimp's Petition Should be Stayed In his Motion for Stay, Petitioner states that he has 4 exhausted his instructional error claim, but not his remaining 5 claims. 6 requests a stay of his federal habeas corpus petition while he 7 proceeds to exhaust his unexhausted claims in state court. 8 2.) 9 action and that they are meritorious. (Mot. Stay & Abeyance 1-2, ECF No. 3.) Accordingly, he (Id. at Shimp contends that he has diligently pursued these causes of (Id.) Moreover, he alleges 10 that he has already filed a state habeas corpus petition in an 11 attempt to exhaust his claims. (Id.) Respondents argue that Petitioner's request for a stay may be 12 13 analyzed under the tests described in Rhines and Kelly. (Resp. 14 Mot. Stay 3, ECF No. 10.) 15 maintain that Shimp is not entitled to a stay because he has not 16 shown good cause for his failure to previously exhaust his claims 17 in state court. 18 Kelly, however, Petitioner may be entitled to a stay. 19 5.) Under the Rhines test, Respondents (Id. at 4.) Paramo and Harris submit that under (Id. at 4- 20 1. 21 A "mixed" petition contains both exhausted and unexhausted Legal standards applicable to Shimp's Motion for Stay 22 claims. See Rose, 455 U.S. at 510. 23 his Petition contains exhausted and unexhausted claims. (Mot. Stay 24 & Abeyance 2, ECF No. 3.) (See Resp. 25 Mot. Stay 3, ECF No. 10 (citing to case law applicable to mixed 26 petitions).) 27 Petitioner's instructional error claim was raised on direct appeal 28 and in his petition for review filed with the California Supreme As noted, Shimp states that Respondents appear to agree. Indeed, the record supports these contentions. 7 While 12cv1537 AJB(RBB) 1 Court, his actual innocence, prosecutorial misconduct, ineffective 2 assistance of trial counsel, ineffective assistance of appellate 3 counsel, and wrongful sentence claims were not. 4 1, Appellant's Opening Brief at i, 25, People v. Shimp, No. 5 D056650; Lodgment No. 5, Petition for Review at i, 5, People v. 6 Shimp, No. SD2010700429.) 7 (See Lodgment No. Mixed petitions may be stayed pursuant to the tests described 8 in either Rhines or Kelly. 9 (2009). King v. Ryan, 564 F.3d 1133, 1141 Petitioner does not articulate under which test he seeks 10 to stay his Petition. 11 No. 3.) 12 (See generally Mot. Stay & Abeyance 1-2, ECF both Rhines and Kelly. The Court will therefore analyze Shimp's request under 13 2. Whether a stay is appropriate under Rhines 14 In Rhines, the Supreme Court held that district courts have 15 the discretion to stay a mixed habeas petition and hold it in 16 abeyance to allow a petitioner to present unexhausted claims to 17 state court. 18 exhausts his state remedies, the district court will lift the stay 19 and allow the petitioner to proceed in federal court." 20 76. 21 filing a federal habeas petition, a district court may hold the 22 federal petition in abeyance, issue a stay of execution, and allow 23 the petitioner an opportunity to exhaust his state remedies." 24 Neuschafer v. Whitley, 860 F.2d 1470, 1472 n.1 (9th Cir. 1988). 25 Nevertheless, federal courts are not required to "tolerate needless 26 piecemeal litigation, [or] to entertain collateral proceedings 27 whose only purpose is to vex, harass, or delay." 28 States, 373 U.S. 1, 18 (1963). Rhines, 544 U.S. at 275. "Once the petitioner Id. at 275- "When a petitioner has not exhausted his state remedies before 8 Sanders v. United 12cv1537 AJB(RBB) 1 The Supreme Court explained in Rhines that any stay and 2 abeyance must be consistent with the provisions of the 3 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 4 Rhines, 544 U.S. at 276. 5 period; this underscores the statute's goal of reducing delays in 6 the execution of criminal sentences and the "'well-recognized 7 interest in the finality of state court judgments.'" 8 Duncan v. Walker 533 U.S. 167 (2001)). 9 that, if granted too frequently, a stay and abeyance would AEDPA contains a one-year limitations Id. (quoting The Rhines Court explained Id. at 277. Consequently, "stay and 10 undermine AEDPA's purposes. 11 abeyance should be available only in limited circumstances." Id. Still, when a petitioner shows good cause for his failure to 12 13 exhaust, presents potentially meritorious claims, and demonstrates 14 that he has not engaged in dilatory litigation tactics, "it likely 15 would be an abuse of discretion for a district court to deny a 16 stay." 17 obtaining federal review of his claims outweighs the competing 18 interests in finality and speedy resolution of federal petitions." 19 Id. 20 execution of state criminal sentences. 21 in recognizing the finality of state court judgments is fostered. 22 Id. at 276. Id. at 278. Rhines underscores the importance of reducing delays in the 23 24 "In such a case, the petitioner's interest in a. Furthermore, the interest Good Cause Petitioner does not address the issue of good cause in his 25 Motion for Stay, and he did not file a reply to Paramo and Harris's 26 Response. 27 does generally assert, however, that he has "diligently pursued his (See generally Mot. Stay & Abeyance 1-2, ECF No. 3.) He 28 9 12cv1537 AJB(RBB) 1 claims and has filed a Petition in California Superior Court on the 2 unexhausted claims." 3 (Id. at 2.) Respondents argue that Shimp has failed to establish good 4 cause for a stay. 5 this contention, they cite the Court's June 27, 2012 Order which 6 states, "'Petitioner has not presented any facts in an attempt to 7 demonstrate good cause for his failure to timely exhaust his state 8 court remedies. 9 was diligent in pursuing his state court remedies, he does not (Resp. Mot. Stay 4, ECF No. 10.) To support Although Petitioner generally maintains that he 10 allege any facts in support of this contention.'" 11 (Id. (quoting Order Setting Briefing Schedule 3, ECF No. 6).) 12 Under Rhines, a court must consider whether "there was good 13 cause for the petitioner's failure to exhaust his claims first in 14 state court." 15 nor the Ninth Circuit has defined what constitutes "good cause" for 16 failure to exhaust. 17 cause requires something less than a showing of "extraordinary 18 circumstances." 19 2005). 20 Rhines, 544 U.S. at 277. Neither the Supreme Court The Ninth Circuit merely opined that good Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. Good cause for not previously exhausting a claim has long been 21 relevant in deciding whether to grant a stay of a habeas petition. 22 Fetterly v. Paskett, 997 F.2d 1295, 1301-02 (9th Cir. 1993) 23 (holding that district court abused its discretion when it denied 24 the petitioner's request for a stay to permit new counsel to raise 25 claims overlooked by prior counsel); see Guillory v. Roe, 329 F.3d 26 1015, 1018 (9th Cir. 2003) (discussing tolling and stating that 27 "relevant measure of diligence is how quickly a petitioner sought 28 to exhaust the claims dismissed as unexhausted, and how quickly he 10 12cv1537 AJB(RBB) 1 returned to federal court after doing so[]"). 2 Duncan, 533 U.S. at 181 (noting that AEDPA's clear purpose was to 3 encourage litigants to exhaust claims in state court before 4 bringing federal habeas petition). 5 See generally The good cause standard was recently analyzed in Wooten v. 6 Kirkland, 540 F.3d 1019 (9th Cir. 2008). 7 attorney filed a direct appeal in the California Court of Appeal 8 and a petition for review in the California Supreme Court, both of 9 which were denied. Id. at 1022. There, petitioner's Although Wooten was "under the 10 impression" that his counsel presented all of his claims at both 11 levels of appeal, one claim was omitted from the state supreme 12 court petition. 13 held that the omitted claim was not exhausted. 14 petitioner's motion to stay and hold the case in abeyance while he 15 returned to state court, concluding that Wooten failed to establish 16 good cause for his failure to exhaust. 17 Circuit upheld the district court's decision, stating the 18 following: 19 20 21 22 23 24 25 26 Id. On federal habeas review, the district court Id. Id. at 1023. It denied The Ninth To accept that a petitioner's "impression" that a claim had been included in an appellate brief constitutes "good cause" would render stay-and-abey orders routine. Indeed, if the court was willing to stay mixed petitions based on a petitioner's lack of knowledge that a claim was not exhausted, virtually every habeas petitioner, at least those represented by counsel, could argue that he thought his counsel had raised an unexhausted claim and secure a stay. Such a scheme would run afoul of Rhines and its instruction that district courts should only stay mixed petitions in "limited circumstances." Id. at 1024 (quoting Rhines, 544 U.S. at 277). Wooten declined to adopt a "broad interpretation of 'good 27 cause.'" 28 petitions[] [and] would also be undermining the goals of AEDPA." Id. To do so would "allow[] for routine stays of mixed 11 12cv1537 AJB(RBB) 1 Id. (holding that good cause was not established when petitioner 2 mistakenly believed that his attorney exhausted all claims); 3 compare Riner v. Crawford, 415 F. Supp. 2d 1207, 1211 (D. Nev. 4 2006) (finding good cause, pre-Wooten, when a petitioner shows "he 5 was prevented from raising the claim, either by his own ignorance 6 or confusion about the law or the status of his case . . . ."). 7 Here, Shimp does not address whether good cause exists for his 8 failure to previously exhaust his new claims in state court. 9 generally Mot. Stay & Abeyance 1-2, ECF No. 3.) (See While he generally 10 maintains that he has "diligently pursued his claims and has filed 11 a Petition in California Superior Court on the unexhausted 12 claims[,]" he does not explain how he acted diligently. 13 at 2.) 14 conclude that he has shown good cause for his failure to exhaust. 15 See Velasquez v. Virga, No. 1:12–cv–01326 AWI MJS HC, 2012 WL 16 4210453, at *2 (E.D. Cal. Sept. 18, 2012) ("Petitioner provides no 17 excuse or reasoning for not presenting the claims to the California 18 Supreme Court. 19 good cause for a stay under Rhines."); Peregrina v. Knipp, No. 20 1:11–cv–02139 MJS HC, 2012 WL 3879935, at *2 (E.D. Cal. Sept. 6, 21 2012) ("Inasmuch as Petitioner provides no explanation for why he 22 did not present the claim to the California Supreme Court, this 23 Court is bound to find that he has not shown good cause for a stay 24 under Rhines."). 25 he actually filed a state habeas corpus petition. 26 Mot. Stay & Abeyance 1-2, ECF No. 3.) 27 28 (See id. Absent any explanation from Shimp, the Court cannot This Court is bound to find that he has not shown Further, Shimp provides no evidence showing that (See generally Moreover, the Court infers from Petitioner's conduct that he has abandoned any attempt to seek a stay under Rhines. 12 Shimp was 12cv1537 AJB(RBB) 1 warned in the Court's June 26, 2012 Order that he had failed to 2 establish good cause to stay his Petition. 3 Schedule 3, ECF No. 6 ("Nonetheless, Petitioner has not presented 4 any facts in an attempt to demonstrate good cause for his failure 5 to timely exhaust his state court remedies.").) 6 Court gave Petitioner an opportunity to file additional briefing to 7 establish good cause. 8 motion. 9 (Id.) (Order Setting Briefing Sua sponte, the Shimp chose not to supplement his Because Petitioner has failed to show good cause for his 10 failure to exhaust, the Court need not consider whether his 11 arguments are plainly meritless or whether he engaged in 12 intentionally dilatory litigation tactics. 13 1023 ("[T]he district court did not abuse its discretion in 14 concluding that Wooten did not have 'good cause' for failing to 15 exhaust his cumulative error claim. 16 the other two factors in the Rhines test."). 17 Shimp seeks a stay under Rhines, his "Motion for Stay and Abeyance 18 Filed in Conjunction with Petition for Writ of Habeas Corpus" [ECF 19 No. 3] is DENIED. Wooten, 540 F.3d at As a result, we need not reach Thus, to the extent 20 3. Whether a stay is appropriate under Kelly 21 Alternatively, a mixed petition may be stayed pursuant to the 22 three-step approach outlined in Kelly v. Small, 315 F.3d 1063. 23 Under this method, a petitioner must first amend his petition to 24 remove any unexhausted claims. 25 Kelly, 315 F.3d at 1070-71). 26 abeyance the amended, fully exhausted petition, allowing the 27 petitioner the opportunity to proceed to state court to exhaust the 28 deleted claims . . . ." King, 564 F.3d at 1135 (citing Next, "the court stays and holds in (Id.) After they are exhausted, the 13 12cv1537 AJB(RBB) 1 petitioner amends the original petition to include the newly- 2 exhausted claims. 3 outright dismissal of the entire petition will make it difficult 4 for the petitioner to return to federal court and raise any claims 5 within AEDPA's one-year statute of limitations. 6 1141. 7 (Id.) A Kelly stay is appropriate when an King, 564 F.3d at "A petitioner seeking to use the Kelly procedure will be able 8 to amend his unexhausted claims back into his federal petition once 9 he has exhausted them only if those claims are determined to be 10 timely. 11 under the now-applicable legal principles." 12 petitioner proceeding under Kelly must therefore amend his petition 13 to re-allege his deleted claims within AEDPA's one-year statute of 14 limitations. 15 1076099, at *3 (E.D. Cal. Mar. 29, 2012); Rodriguez v. Small, No. 16 1:09-cv-00424 YNP [DLB] (HC), 2009 WL 3763531, at *1 (E.D. Cal. 17 Nov. 9, 2009); Faulkner v. Mule Creek State Prison, No. 18 1:08-cv-00806 YNP DLB (HC), 2009 WL 1844329, at *2 (E.D. Cal. June 19 26, 2009). 20 21 And demonstrating timeliness will often be problematic a. Id. at 1140-41. A Solorzano v. Small, No. 1:08-cv-01949 MJS HC, 2012 WL Statute of limitations Shimp does not request a Kelly stay, nor does he request to 22 amend his Petition to withdraw his unexhausted claims. 23 generally Mot. Stay & Abeyance 1-2, ECF No. 3.) 24 Respondents raise the issue in their September 20, 2012 Response to 25 Motion. 26 Harris maintain that Petitioner must amend his petition before the 27 expiration of the statute of limitations. (See Resp. Mot. Stay 4, ECF No. 10.) (See Rather, There, Paramo and (Id.) 28 14 12cv1537 AJB(RBB) 1 Respondents state that the California Supreme Court denied 2 Shimp's petition for review on July 13, 2011. 3 ninety days for certiorari, . . . the date of finality is October 4 11, 2011. 5 11, 2012, in which to amend his fully exhausted claims back into 6 his federal petition." 7 although Petitioner alleges that he filed a writ of habeas corpus 8 in state court prior to that date, they were unable to locate that 9 petition. 10 (Id.) "Adding Shimp has one year from that date, that is until October (Id. at 4-5.) Respondents contend that (Id. at 5 n.1.)3 A petitioner seeking to use the Kelly procedure and amend his 11 petition must demonstrate that the unexhausted claims are timely. 12 King, 564 F.3d at 1140-41. 13 Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 14 because it was filed after April 24, 1996. 15 (West 2006); Woodford v. Garceau, 538 U.S. 202, 204 (2003) (citing 16 Lindh v. Murphy, 521 U.S. 320, 326 (1997)). 17 petitions are subject to AEDPA's one-year statute of limitations. 18 As amended, § 2244(d) provides: 19 20 Shimp's Petition is subject to the 28 U.S.C.A. § 2244 All federal habeas (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -- 21 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 22 23 24 25 26 27 28 3 Respondents filed their response on September 20, 2012, twenty-one days prior to the expiration of the statute of limitations. (See id. at 1.) Although expiration of the limitations period was imminent, they did not discuss how this would affect Shimp's request for a stay. (See id. at 1-5.) After the statute of limitations lapsed, Respondents did not file a supplemental brief clarifying whether they still did not oppose Shimp's request to stay his Petition, or the extent to which statutory tolling, equitable tolling, or the relation-back doctrine applied. 15 12cv1537 AJB(RBB) 1 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 2 3 4 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 5 6 7 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 8 9 10 28 U.S.C.A. § 2244(d)(1) (West 2006). On April 26, 2011, the California Court of Appeal issued its 11 opinion on Petitioner's direct appeal from the judgment of 12 conviction. 13 op. at 1.) 14 at 1, 7.) 15 Supreme Court denied on July 13, 2011. 16 for Review, People v. Shimp, No. SD2010700429; Lodgment No. 6, 17 People v. Shimp, No. S193717, order at 1.) 18 petition for a writ of certiorari with the United States Supreme 19 Court. 20 (Lodgment No. 4, People v. Shimp, No. D056650, slip The court affirmed the superior court's judgment. (Id. Shimp filed a petition for review, which the California (Lodgment No. 5, Petition He did not file a United States Supreme Court Rule 13 provides that a petition 21 for certiorari must be filed within ninety days of the entry of an 22 order denying discretionary review by the state supreme court. 23 S. Ct. R. 13. 24 by the state's highest court but does not file a petition with the 25 United States Supreme Court, the judgment becomes final when the 26 prisoner's time to petition the Supreme Court expires. 27 Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641, 653-54 (2012). See When a habeas petitioner seeks discretionary review See 28 16 12cv1537 AJB(RBB) 1 Shimp's judgment became final for the purposes of AEDPA on 2 October 11, 2011, ninety days after the California Supreme Court 3 denied his petition for review. 4 Pursuant to § 2244(d), the statute of limitations for federal 5 habeas corpus began to run on October 12, 2011, the day after the 6 judgment became final. 7 v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (explaining that the 8 one-year statute of limitations under AEDPA begins to run the day 9 after the conviction becomes final). See id.; see also S. Ct. R. 13. 28 U.S.C.A. § 2244(d)(1)(A); see Corjasso The statute of limitations 10 period would therefore have expired on October 11, 2012. 11 Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) 12 (quoting Fed. R. Civ. P. 6(a)) ("In computing any period of time 13 prescribed or allowed . . . by any applicable statute, the day of 14 the act, event, or default from which the designated period of time 15 runs shall not be included.") 16 federal petition and motion to stay on June 21, 2012, AEDPA's one- 17 year statute of limitations had not expired. 18 See Thus, at the time Shimp filed his Even so, Petitioner did not complete any of the steps required 19 by Kelly prior to the expiration of AEDPA's one-year statute of 20 limitations. 21 petitioner must withdraw his unexhausted claims from his federal 22 petition, exhaust them in state court, and amend them back into his 23 federal petition prior to the expiration of the statute of 24 limitations); Rodriguez, 2009 WL 3763531, at *1 (same); Faulkner, 25 2009 WL 1844329, at *2 (same). 26 his unexhausted claims from his Petition prior to October 11, 2012. 27 Even assuming the Court would have allowed Petitioner to amend his 28 Petition prior to October 11, 2012, Shimp provides no evidence that See Solorzano, 2012 WL 1076099, at *3 (noting that a Shimp made no attempt to withdraw 17 12cv1537 AJB(RBB) 1 his new claims were fully exhausted by that date. 2 not attempt to amend his petition to re-allege any newly-exhausted 3 claims. 4 requirement under Kelly. 5 Finally, he did Accordingly, Petitioner has failed to meet the timeliness A federal petition for writ of habeas corpus may be dismissed 6 with prejudice when it was not filed within AEDPA's one-year 7 statute of limitations. 8 Cir. 2001). 9 must be resolved before the merits of individual claims. Jiminez v. Rice, 276 F.3d 478, 483 (9th The statute of limitations is a threshold issue that White v. 10 Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). 11 satisfied the test for a stay under Kelly; nevertheless, a stay may 12 be available, if he can show he is eligible for statutory or 13 equitable tolling or that an amended petition that includes his 14 newly exhausted claims will relate back to his original claim for 15 habeas relief. 16 17 i. Shimp has not Statutory tolling Neither Petitioner nor Respondents address whether statutory 18 tolling applies. 19 after his petition for review was denied by the California Supreme 20 Court on July 13, 2011, he subsequently filed a state habeas corpus 21 petition to exhaust his unexhausted claims. 22 2, ECF No. 3.) 23 for statutory tolling. 24 As discussed, however, Shimp does state that (Mot. Stay & Abeyance That petition, if it exists, may provide a basis The statute of limitations under AEDPA is tolled during 25 periods in which a "properly filed" habeas corpus petition is 26 "pending" in the state court. 27 statute specifically provides, "The time during which a properly 28 filed application for State post-conviction or other collateral 28 U.S.C.A. § 2244(d)(2). 18 The 12cv1537 AJB(RBB) 1 review with respect to the pertinent judgment or claim is pending 2 shall not be counted toward any period of limitation under this 3 subsection." 4 (2005). 5 and acceptance are in compliance with the applicable laws and rules 6 governing filings." 7 (explaining that typical filing requirements include all relevant 8 time limits). 9 Id.; see also Pace v. DiGuglielmo, 544 U.S. 408, 410 "[A]n application is 'properly filed' when its delivery Artuz v. Bennett, 531 U.S. 4, 8 (2000) The interval between the disposition of one state petition and 10 the filing of another may be tolled under "interval tolling." 11 Carey v. Saffold, 536 U.S. 214, 223 (2002). 12 of limitations is tolled for 'all of the time during which a state 13 prisoner is attempting, through proper use of state court 14 procedures, to exhaust state court remedies with regard to a 15 particular post-conviction application.'" 16 1003, 1006 (9th Cir. 1999) (quoting Barnett v. Lamaster, 167 F.3d 17 1321, 1323 (10th Cir. 1999)); see also Carey, 536 U.S. at 219-22. 18 The statute of limitations is tolled from the time the first state 19 habeas petition is filed until state collateral review is 20 concluded, but it is not tolled before the first state collateral 21 challenge is filed. 22 2007) (citing Nino, 183 F.3d at 1006). 23 "[T]he AEDPA statute Nino v. Galaza, 183 F.3d Thorson v. Palmer, 479 F.3d 643, 646 (9th Cir. Here, while Shimp claims to have filed a state habeas corpus 24 petition, he has not provided the Court with any evidence 25 supporting this assertion. 26 Stay & Abeyance 1-2, ECF No. 3.) 27 Petition and Motion for Stay were simultaneously filed, Petitioner 28 has failed to provide this Court with a case number, a copy of the (See Pet. 3, ECF No. 1; see also Mot. In the seven months since his 19 12cv1537 AJB(RBB) 1 state court filing, an identification of the county in which it was 2 filed, or a filing date. 3 has had ample time to supplement his motion, but he has chosen not 4 to do so. 5 collateral review, Petitioner is not entitled to statutory tolling. 6 See Allen v. Paramo, No. 1:12–CV–01235 AWI GSA HC, 2012 WL 6516767, 7 at *3 (E.D. Cal. Dec. 13, 2012); Williams v. Allison, No. ED CV 8 12–0036 GHK (FMO), 2012 WL 3779094, at *4 (C.D. Cal. July 30, 9 2012); Vigil v. Gipson, No. CV 11–10360 RGK (JCG), 2012 WL 1163633, Since filing his federal petition, Shimp Absent any evidence of post-conviction or other 10 at *3 (C.D. Cal. Mar. 13, 2012). 11 burden of proving that a properly filed state habeas corpus 12 petition tolled AEDPA's one-year statute of limitations. 13 v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) (citing Smith v. 14 Duncan, 297 F.3d 809, 814 (9th Cir. 2002)) (holding that a 15 petitioner has the burden of demonstrating that the limitations 16 period was sufficiently tolled). ii. 17 18 Shimp has failed to meet his See Banjo Equitable tolling Neither the Petitioner nor the Respondents address whether 19 equitable tolling applies. Equitable tolling of the statute of 20 limitations is appropriate when the petitioner can show "'(1) that 21 he has been pursuing his rights diligently, and (2) that some 22 extraordinary circumstance stood in his way.'" 23 560 U.S. __, __, 130 S. Ct. 2549, 2562 (2010) (quoting Pace, 544 24 U.S. at 418); see also Lawrence v. Florida, 549 U.S. 327, 335 25 (2007). 26 elements. 27 A petitioner is entitled to equitable tolling of AEDPA's statute of 28 limitations where "'extraordinary circumstances beyond a prisoner's Holland v. Florida, The petitioner bears the burden of establishing the Roberts v. Marshall, 627 F.3d 768, 771 (9th Cir. 2010). 20 12cv1537 AJB(RBB) 1 control make it impossible'" to file a timely petition. Spitsyn v. 2 Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Brambles v. 3 Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)). 4 "'[T]he threshold necessary to trigger equitable tolling 5 [under AEDPA] is very high, lest the exceptions swallow the rule.'" 6 Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting 7 United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). 8 The failure to file a timely petition must be the result of 9 external forces, not the result of the petitioner's lack of Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). 10 diligence. 11 "Determining whether equitable tolling is warranted is a 12 'fact-specific inquiry.'" 13 v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)). 14 makes a "'good-faith allegation that would, if true, entitle him to 15 equitable tolling[,]'" the petitioner should receive an evidentiary 16 hearing. 17 (alteration in original) (quoting Laws v. LaMarque, 351 F.3d 919, 18 921 (9th Cir. 2003)). 19 Spitsyn, 345 F.3d at 799 (quoting Frye If a petitioner Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) Shimp does not allege that he is entitled to equitable 20 tolling. (See generally Mot. Stay & Abeyance 1-2, ECF No. 3.) He 21 claims to have filed a state habeas corpus petition, but Petitioner 22 provides no proof that he filed the petition. 23 Thus, there is no indication that he has pursued his actual 24 innocence, prosecutorial misconduct, ineffective assistance of 25 trial counsel, ineffective assistance of appellate counsel, or 26 wrongful sentencing claims in state court, whether diligently or 27 otherwise. 28 appellate counsel claim, Shimp's other claims could have been (See generally id.) Further, except for the ineffective assistance of 21 12cv1537 AJB(RBB) 1 raised on direct appeal and prior to filing his federal Petition 2 for Writ of Habeas Corpus. 3 at 2562; (see also Lodgment No. 1, Appellant's Opening Brief at i, 4 People v. Shimp, No. D056650; Lodgment No. 5, Petition for Review 5 at i, People v. Shimp, No. SD2010700429.) 6 expected to question his appellate attorney's actions while he was 7 represented, but Shimp provides no evidence that he filed a state 8 habeas corpus petition after the California Supreme Court denied 9 his petition for review. See Holland, 560 U.S. at __, 130 S. Ct. Petitioner would not be See Doe v. Busby, 661 F.3d 1001, 1012-15 10 (9th Cir. 2010) (discussing equitable tolling and what is 11 reasonable diligence when faced with egregious attorney 12 misconduct). 13 was reasonably diligent in pursuing these claims or that 14 extraordinary circumstances "stood in his way." 15 U.S. at __, 130 S. Ct. at 2562. Accordingly, Petitioner has not demonstrated that he See Holland, 560 16 b. 17 Neither party addresses whether Shimp's new claims relate back 18 19 Relation back to his exhausted claim of instructional error. The Federal Rules of Civil Procedure apply to federal habeas 20 cases through Federal Rule of Civil Procedure 81(a)(4), 28 U.S.C. § 21 2242, and Habeas Corpus Rule 12. 22 2012); Rules Governing § 2254 Cases, Rule 12, 28 U.S.C. foll. § 23 2254; Fed. R. Civ. P. 81(a)(4). 24 of limitations has run relate back to the date of the original 25 pleading if the original and amended pleadings '[arise] out of the 26 conduct, transaction, or occurrence." 27 644, 655 (2005) (citing Fed. R. Civ. P. 15(c)(2)). 28 test is whether the claim arises out of a "common 'core of See 28 U.S.C.A. § 2242 (West "Amendments made after the statute 22 Mayle v. Felix, 545 U.S. The applicable 12cv1537 AJB(RBB) 1 operative facts' uniting the original and newly asserted claims." 2 Id. at 659 (citations omitted). 3 A claim does not arise out of a common core of operative facts 4 when the claim is "'supported by facts that differ in both time and 5 type from those the original pleading set forth.'" 6 McDaniel, 674 F.3d 1144, 1150 (9th Cir. 2012) (citing Mayle, 545 7 U.S. at 650). 8 the AEDPA or the relation-back doctrine does not apply, it may not 9 be added to the existing petition and a stay is inappropriate." Schneider v. "If the newly exhausted claim is not timely under 10 Garcia v. Evans, No. 1:08-cv-1819 AWI DLB HC, 2012 U.S. Dist. LEXIS 11 3620, at *5-6 (E.D. Cal. Jan. 6, 2012). 12 In his motion, Petitioner does not address whether his 13 unexhausted claims "relate back" to his sole exhausted claim of 14 instructional error. 15 No. 3.) 16 presenting or demonstrating these other claims 'relate back.'" 17 Zaragoza v. Martel, No. 09cv01598–DMS (WMc), 2011 WL 1486528, at *3 18 (S.D. Cal. Jan. 31, 2011) (citing King, 564 F.3d at 1135-43); see 19 also Henry v. Cate, NO. CIV. 10-2398-JLS WVG, 2011 WL 7461905, *2 20 (S.D. Cal. Aug. 22, 2011) (holding that petitioner bears the burden 21 of proving relation back); Olivera v. Scribber, No. CV F 04-5217 22 OWW WMW HC, 2008 WL 828748, at *7 (E.D. Cal. Mar. 27, 2008) (same). 23 Absent any showing that his new claims are related to his 24 instructional error claim, Shimp fails to meet the threshold for 25 invoking the relation-back doctrine. 26 WL 1486528, at *3. 27 his Petition under Kelly, his "Motion for Stay and Abeyance Filed (See generally Mot. Stay & Abeyance 1-2, ECF "As the moving party, Petitioner bears the burden of See Zaragoza v. Martel, 2011 Thus, to the extent Petitioner seeks to stay 28 23 12cv1537 AJB(RBB) 1 in Conjunction with Petition for Writ of Habeas Corpus" [ECF No. 3] 2 is DENIED. 3 IV. 4 CONCLUSION Shimp's Petition is a mixed petition, and therefore it may be 5 stayed under either Rhines or Kelly. Petitioner has failed to 6 establish good cause for his failure to present the unexhausted 7 claims to the California Supreme Court, pursuant to Rhines. 8 Additionally, AEDPA's statute of limitations has expired, and Shimp 9 has not sufficiently demonstrated that he is entitled to statutory 10 or equitable tolling, or that the relation-back doctrine applies to 11 his new claims. 12 Kelly. 13 Conjunction with petition for Writ of Habeas Corpus" [ECF No. 3] is 14 DENIED. As a result, he is not entitled to a stay under Petitioner's "Motion for Stay and Abeyance Filed in 15 16 Dated: February 11, 2013 17 18 cc: _____________________________ RUBEN B. BROOKS United States Magistrate Judge Judge Battaglia All parties of record 19 20 21 22 23 24 25 26 27 28 I:\Chambers Brooks\CASES\HABEAS\SHIMP1537\Order re Stay and Abey v1.wpd 24 12cv1537 AJB(RBB)

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