(HC) Putnam v. Attorney General of the State of California, No. 2:2017cv00832 - Document 25 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/15/17 RECOMMENDING that petitioners motion to stay 1 be denied. Respondents motion to dismiss 12 be granted. The unexhausted petition 1 be dismissed without prejudice and the Clerkbe directed to close the case. Motions 1 and 12 referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

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(HC) Putnam v. Attorney General of the State of California Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHEN E. PUTNAM, 12 13 14 15 No. 2:17-cv-0832-GEB-EFB P Petitioner, v. FINDINGS AND RECOMMENDATIONS MARSHALL HOPPER, Chief Probation Officer, Placer County Probation Department, Respondent.1 16 17 18 19 20 21 22 23 24 25 Petitioner is in the custody of the California Department of Corrections and Rehabilitation, and is proceeding through counsel in this petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner concedes that none of his four claims have been presented to the California Supreme Court and are therefore unexhausted. ECF No. 1, ¶ 11. He requests that this action be stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Id. ¶ 12. Respondent opposes a stay and asks that the petition be dismissed without prejudice as unexhausted. ECF No. 12. Petitioner filed an opposition and respondent filed a reply. ECF Nos. 22, 23. Because petitioner has failed to show good cause for his failure to exhaust his claims before filing them in 1 26 27 28 Marshall Hopper, Chief Probation Officer of Placer County Probation Department (through which petitioner was released on Post Release Community Supervision), is hereby substituted as respondent. Rule 2(a), Rules Governing Section 2254 Cases in the U.S. District Courts; Bittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (“The proper respondent in a federal habeas corpus petition is the petitioner’s immediate custodian.”). Dockets.Justia.com 1 this court, his motion to stay should be denied and respondent’s motion to dismiss the 2 unexhausted petition should be granted. 3 4 I. Background On March 21, 2013, petitioner was convicted of pimping and pandering. Resp’t’s Lod. 5 Docs. 2, 6. He was sentenced to a determinate state prison term of seven years, four months. 6 Resp’t’s Lod. Doc. 2. On April 20, 2016, the state appellate court affirmed the judgment. 7 Resp’t’s Lod. Doc. 3. 8 9 On May 12, 2016, petitioner wrote to his appellate counsel, Richard R. Dudek, to find out if he would be filing an appeal in the California Supreme Court. ECF No. 22, Ex B at 31.2 On 10 May 19, 2016, Dudek responded by letter that he would “NOT be filing an appeal with the 11 Supreme Court,” that he would no longer be representing petitioner, and that petitioner was 12 “currently without legal representation.” Resp’t’s Lod. Doc. 5. On May 30, 2016, petitioner’s 13 deadline for filing a petition for review in the California Supreme Court expired. See Cal. Rules 14 of Court 8.366 & 8.500. He did not file a petition for review. 15 On June 8, 2016, through attorney Timothy Woodall, petitioner filed a petition for writ of 16 habeas corpus in the state superior court. Resp’t’s Lod. Doc. 6. The superior court denied the 17 petition the following day. Id. 18 On August 29, 2016, petitioner signed a pro se petition for writ of habeas corpus that was 19 filed in the state superior court on September 30, 2016. Resp’t’s Lod. Doc. 7. In this petition, 20 petitioner raised the same four claims as the instant petition. See id. On December 13, 2016, the 21 state superior court denied relief. Id. 22 On April 20, 2017, petitioner filed his petition in this action. ECF No. 1. He concedes 23 that his claims have not been presented to the California Supreme Court but asks that his petition 24 be stayed because (1) appellate counsel unexpectedly abandoned him and did not provide him 25 with copies of trial transcripts until mid-July 2016; (2) given the uncertainty in California’s 26 habeas procedures, there was no guarantee that filing a petition in the California Supreme Court 27 2 28 For ease of reference, all references to page numbers are to those assigned via the court’s electronic filing system. 2 1 would have been deemed timely and thus tolled the federal limitations period; (3) an ongoing 2 investigation into his case may result in new evidence, requiring that he delay filing in the 3 California Supreme Court, so as to avoid the filing of improper piecemeal habeas petitions in that 4 court; and (4) he has filed a “protective petition” in accordance with Pace v. DiGuglielmo, 544 5 U.S. 408, 416 (2005). See ECF No. 22. 6 II. Legal Standards 7 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 8 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion requirement, a habeas 9 petitioner challenging a state conviction must first attempt to present his claim in state court.” 10 Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O’Sullivan v. Boerckel, 526 U.S. 838, 11 845 (1999) (“the exhaustion doctrine is designed to give the state courts a full and fair 12 opportunity to resolve federal constitutional claims before those claims are presented to the 13 federal courts”). A petitioner satisfies the exhaustion requirement by providing the highest state 14 court with a full and fair opportunity to consider all claims before presenting them to the federal 15 court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th 16 Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to exhaust, he must 17 present his claims to the California Supreme Court on appeal in a petition for review or on post- 18 conviction in a petition for a writ of habeas corpus. See Gatlin v. Madding, 189 F.3d 882, 888 19 (9th Cir. 1999); Harris v. Superior Court of California, 500 F.2d 1124, 1125 (1974). 20 In “limited circumstances,” the court may stay a petition to allow a petitioner the 21 opportunity to present his unexhausted claims to the state court. Rhines, 544 U.S. at 275-77; see 22 also Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016) (extending the Rhines stay and abeyance 23 procedure to federal petitions that are fully unexhausted). Because granting a stay effectively 24 excuses a petitioner’s failure to present his claims first to the state courts, the stay and abeyance 25 procedure is available only when: (1) there is “good cause” for the failure to exhaust; (2) the 26 unexhausted claims are potentially meritorious; and (3) the petitioner did not intentionally engage 27 in dilatory litigation tactics. Rhines, 544 U.S. at 277-78. “[G]ood cause turns on whether the 28 petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify [his 3 1 failure to exhaust his claims in state court].” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 2 A “petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily 3 constitute ‘good cause’ for him to file in federal court.” Pace, 544 U.S. at 416. Unless a stay is 4 appropriate, an unexhausted petition must be dismissed. See Mena, 813 F.3d at 908. 5 6 III. Discussion Petitioner offers four reasons for his failure to exhaust his federal claims in state court 7 before presenting them to this court. Those reasons are not sufficient to justify his failure to 8 exhaust. 9 First, petitioner argues that the unexpected abandonment by his appellate counsel in May 10 2016, and subsequent delay in providing petitioner with copies of his voluminous trial transcripts, 11 justifies his failure to exhaust. ECF No. 1 at 5. These excuses, however, fail to reasonably 12 explain why petitioner could not have presented his claims to the California Supreme Court prior 13 to commencing this action. See Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 14 2005) (no “good cause” where “[a]ppellate counsel’s alleged failure did nothing to prevent 15 Petitioner from seeking state habeas relief for the unexhausted claims.”). By June 8, 2016, 16 petitioner had already retained new post-conviction counsel and had filed a petition for writ of 17 habeas corpus in the state superior court. By mid-July 2016, petitioner had personally obtained 18 copies of his trial transcripts. ECF No. 22 at 2. And by August 29, 2016, petitioner was aware of 19 the factual basis for each of the claims asserted in this action. See Resp’t’s Lod. Doc. 7 20 (petitioner’s pro se habeas petition filed in state superior court); see also Reyes v. Soto, No. CV 21 15-8566, 2016 U.S. Dist. LEXIS 125901, at *17-18 (C.D. Cal. Aug. 1, 2016) (no good cause for 22 failure to exhaust where petitioner knew factual basis for his unexhausted claims long before he 23 filed his federal petition). Under these circumstances, petitioner was able to present his claims in 24 a state habeas petition to the California Supreme Court, but without explanation, presented them 25 only to the state superior court. See Meza v. Barretto, No. CV 16-05867-FMO (KES), 2017 U.S. 26 Dist. LEXIS 27242, at *15 (C.D. Cal. Jan. 17, 2017) (no good cause for failure to exhaust where 27 petitioner failed to explain why he presented federal claims to state superior court, but failed to 28 “send[ ] the same petition to the California Supreme Court.”). Thus, appellate counsel’s alleged 4 1 failures did nothing to prevent petitioner from seeking post-conviction habeas relief in the 2 California Supreme Court during the seven-plus months that elapsed from August 29, 2016 to 3 April 20, 2017, when petitioner filed the instant petition. 4 Second, petitioner argues that following the state superior court’s December 13, 2016 5 denial, there was “no guarantee that [filing] a California Supreme Court petition would have 6 tolled the [federal statute of] limitations.” See ECF No. 22 at 3 (arguing that because more than 7 six months had elapsed since the denial of petitioner’s first superior court petition on June 9, 8 2016, any Supreme Court “exhaustion petition” might not have been “timely” under 9 Evans v. Chavis, 546 U.S. 189, 192-193 (2006), and therefore not “properly filed” so as to 10 statutorily toll the federal limitations period). This purported “risk,” however, does not 11 reasonably excuse petitioner’s failure to exhaust in this case. ECF No. 22 at 4. As discussed, 12 petitioner could have presented his claims to the California Supreme Court as early as August 29, 13 2016, but did not. Moreover, petitioner did not need any “guarantee” in the way of statutory 14 tolling as of December 2016. Even without tolling, he still had another five months – until May 15 30, 2017 – to file a timely federal petition.3 Therefore, this excuse rings hollow. See Sam v. 16 Davey, No. 2:17-cv-744-JAM-GGH, 2017 U.S. Dist. LEXIS 124584, at *3 (E.D. Cal. Aug. 7, 17 2017) (“Rhines asks nothing more than that a petitioner adequately state a valid reason” 18 for failing to first present claims to the California Supreme Court). 19 Third, petitioner claims that one or more witnesses “may be able to provide material 20 information supportive of [his] claims.” ECF No. 22 at 5. Without any specificity, petitioner 21 contends that this “ongoing investigation” excuses his failure to exhaust. See id. at 4-6 (arguing 22 that if he had filed a petition in the California Supreme Court before his investigation had “borne 23 fruit,” he “would have risked the filing of a state petition not adequately supported.”). Petitioner 24 does not indicate when he commenced this investigation, what specific facts the investigation 25 might uncover, or how those facts would support his claims. He also fails to explain why he was 26 27 28 3 As respondent points out (ECF No. 23 at 5, n.2), the one-year statute of limitations began to run on June 1, 2016, the day on which petitioner’s opportunity to seek direct review expired. 28 U.S.C. § 2244(d)(1)(A). 5 1 able to present his claims to this court without the “fruits” of the investigation, yet unable to 2 present those same claims to the California Supreme Court. Thus, petitioner fails to show how 3 any ongoing investigation excuses his failure to exhaust in this case. See Reyes v. Soto, No. CV 4 15-8566-CJC, 2016 U.S. Dist. LEXIS 125901, at *18-19 (C.D. Cal. Aug. 1, 2016) (petitioner’s 5 engagement in “ongoing investigations” did not create good cause for Rhines stay). 6 Finally, petitioner insists that he has filed a “protective petition” as contemplated by the 7 United States Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). ECF No. 22 at 8 7. In Pace, the Court suggested that a petitioner may file a protective federal habeas petition 9 while a state court petition is pending. See id. (responding to concern that a “petitioner trying in 10 good faith to exhaust state remedies may litigate in state court for years only to find out at the end 11 that he was never ‘properly filed,’ and thus that his federal habeas petition is time barred.”); see 12 also Dolis v. Chambers, 454 F.3d 721, 725 (7th Cir. 2006) (suggesting that petitioners “file in 13 both state and federal court simultaneously where there is some procedural uncertainty about the 14 state court post-conviction proceeding, and then ask the district court to stay the federal case until 15 the state case concludes to ensure that she does not miss the one-year deadline.”); Doe v. Jones, 16 762 F.3d 1174, 1181 (10th Cir. 20104) (characterizing the type of federal petition discussed in 17 Dolis as the “quintessential ‘protective petition’”). Indeed, “[a] petitioner’s reasonable confusion 18 about whether a state filing would be timely will ordinarily constitute ‘good cause’ for him to file 19 in federal court” pending exhaustion of his claims in state court. Pace, 544 U.S. at 416. 20 Here, petitioner fails to demonstrate how the instant petition can be construed as 21 “protective” within the meaning of Pace given his failure to file any petition in the California 22 Supreme Court prior to commencing this action. See Mitchell v. Hedgepeth, No. CV 08-562- 23 RGK (FFM), 2015 U.S. Dist. LEXIS 166301, at *9-10 (C.D. Cal. Aug. 14, 2015) (“The problem 24 with this argument was twofold: first, petitioner did not file a petition with the California 25 Supreme Court . . . thus Pace was inapplicable in that petitioner’s federal filing was not a 26 ‘protective’ filing while he pursued state remedies and petitioner entertained no reasonable 27 confusion about the timeliness of a non-existent state petition.”); Brodheim v. Cate, No. CIV S- 28 08-2094-WBS-CMK-P, 2009 U.S. Dist. LEXIS 45168, at *4 (E.D. Cal. May 28, 2009) 6 1 (dismissing purported “protective petition” as unexhausted where case did “not present the 2 situation of a pending state court petition which could be denied as untimely”). Accordingly, 3 petitioner’s reliance on Pace is unavailing. 4 IV. Recommendation 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s motion to stay (ECF No. 1) be denied. 7 2. Respondent’s motion to dismiss (ECF No. 12) be granted. 8 3. The unexhausted petition (ECF No. 1) be dismissed without prejudice and the Clerk 9 be directed to close the case. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 12 after being served with these findings and recommendations, any party may file written 13 objections with the court and serve a copy on all parties. Such a document should be captioned 14 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 15 shall be served and filed within fourteen days after service of the objections. Failure to file 16 objections within the specified time may waive the right to appeal the District Court’s order. 17 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 18 1991). In his objections petitioner may address whether a certificate of appealability should issue 19 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 20 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 21 final order adverse to the applicant). 22 DATED: November 15, 2017. 23 24 25 26 27 28 7

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