(HC) Jimenez v. Campbell, No. 1:2023cv01367 - Document 8 (E.D. Cal. 2023)

Court Description: ORDER ADOPTING 6 Findings and Recommendations, DENYING Petitioner's 2 Motion to Stay, Dismissing Petition for Writ of Habeas Corpus without Prejudice, Directing Clerk of Court to Close Case, and Declining to Issue Certificate of Appealability signed by District Judge Jennifer L. Thurston on 11/21/2023. CASE CLOSED.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JIMENEZ, 12 13 14 15 Petitioner, v. TAMMY L. CAMPBELL, Respondent. 16 No. 1:23-cv-01367-JLT-SAB (HC) ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING PETITIONER’S MOTION TO STAY, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY (Docs. 2, 6) 17 18 19 David Jimenez, represented by counsel, is a state prisoner proceeding with a petition for 20 writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 The magistrate judge issued findings and recommendations recommending that 23 Petitioner’s motion to stay be denied and the petition for writ of habeas corpus be dismissed 24 without prejudice for failure to exhaust state judicial remedies. (Doc. 6.) Petitioner filed timely 25 objections. (Doc. 7.) 26 According to 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of the 27 case. Having carefully reviewed the entire file, including Petitioner’s objections, the Court holds 28 the findings and recommendation to be supported by the record and proper analysis. 1 1 Rhines v. Weber, 544 U.S. 269 (2005), provides that “stay and abeyance” is available only 2 in “limited circumstances,” and only when: (1) there is “good cause” for the failure to exhaust; (2) 3 the unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally 4 engage in dilatory litigation tactics. 544 U.S. at 277–78. “The caselaw concerning what 5 constitutes ‘good cause’ under Rhines has not been developed in great detail.” Dixon v. Baker, 6 847 F.3d 714, 720 (9th Cir. 2017). 7 In the objections, Petitioner argues for the first time that his case is akin to Blake v. Baker, 8 745 F.3d 977 (9th Cir. 2014), where ‘evidence that his state post-conviction counsel failed to 9 discover, investigate, and present to the state courts,’ . . . established good cause for a Rhines 10 stay.” (Doc. 7 at 2–3 (quoting Blake, 745 F.3d at 983).) The petitioner in Blake asserted that he 11 failed to exhaust his ineffective assistance of trial counsel claim because his state post-conviction 12 counsel was ineffective and failed to investigate and retain experts to discover facts underlying 13 his unexhausted ineffective assistance of trial counsel claim. Blake, 745 F.3d at 982–83. A 14 showing that post-conviction counsel was ineffective under the standard of Strickland v. 15 Washington, 466 U.S. 668, 687 (1984), establishes good cause for failure to exhaust. Blake, 745 16 F.3d at 983. Here, however, Petitioner has not made a showing that post-conviction counsel was 17 ineffective under the Strickland standard. 18 Petitioner also argues that “Respondents typically argue that claims are untimely” and 19 thus, “Petitioner harbors reasonable confusion about whether his claims will be found timely,” 20 which satisfies the good cause requirement. (Doc. 7 at 3.) In Pace v. DiGuglielmo, 544 U.S. 408 21 (2005), the Supreme Court stated that a “petitioner’s reasonable confusion about whether a state 22 filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” 23 Pace, 544 U.S. at 416 (emphasis added). Here, Petitioner does not argue that he harbors 24 reasonable confusion about whether his state habeas filing would be timely. 25 Having found that Petitioner is not entitled to habeas relief, the Court now turns to 26 whether a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus 27 has no absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 28 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 2 1 § 2253. Where, as here, the Court denies habeas relief on procedural grounds without reaching 2 the underlying constitutional claims, the Court should issue a certificate of appealability “if jurists 3 of reason would find it debatable whether the petition states a valid claim of the denial of a 4 constitutional right and that jurists of reason would find it debatable whether the district court was 5 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 6 procedural bar is present and the district court is correct to invoke it to dispose of the case, a 7 reasonable jurist could not conclude either that the district court erred in dismissing the petition or 8 that the petitioner should be allowed to proceed further.” Id. 9 In the present case, the Court finds that reasonable jurists would not find the Court’s 10 determination that the petition should be dismissed debatable or wrong, or that Petitioner should 11 be allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 12 Accordingly, the Court ORDERS: 13 1. The findings and recommendations issued on October 16, 2023 (Doc. 6) are 14 ADOPTED IN FULL. 15 2. Petitioner’s motion to stay (Doc. 2) is DENIED. 16 3. The petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. 17 4. The Clerk of Court is directed to CLOSE THE CASE. 18 5. The Court declines to issue a certificate of appealability. 19 20 21 IT IS SO ORDERED. Dated: November 21, 2023 22 23 24 25 26 27 28 3

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