Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

HENDERSON v. OLLISON

United States District Court, S.D. California


November 2, 2005.

JOEL B. HENDERSON, Petitioner,
v.
DERRICK OLLISON, Warden, Respondent.

The opinion of the court was delivered by: NITA STORMES, Magistrate Judge

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: DENIAL OF MOTION FOR STAY AND ABEYANCE
Before the Court is the "Request to Hold Federal Habeas Corpus Petition in Abeyance to Allow Petitioner to Return to State Court Under New Discovered Evidence" and a supplemental memorandum in support thereof, filed by Petitioner, a state prisoner proceeding pro se and in forma pauperis. The Court construes the request as a motion for stay and abeyance. [Dkt. Nos. 7, 9.] Respondent has filed an opposition to the motion and has also lodged portions of the state court record. [Dkt. Nos. 10-12.] After careful consideration of the motion, the opposition, and all supporting documents submitted by the parties, the Court RECOMMENDS that the motion for stay and abeyance be DENIED.

Background

  In March 2003, Petitioner was convicted of second degree robbery after he stole an automobile gauge from a Wal-Mart store and resisted the attempts of two Wal-Mart employees to recover the item. [Opposition to Petitioner's Motion to Hold Petition For Writ of Habeas Corpus in Abeyance for Purposes of Exhausting Additional Claims in State Court ("Opposition") at 1-6; Lodgment 1 (Unpublished Opinion of the California Court of Appeal, Fourth Appellate District, Division One, dated February 18, 2005) at 1.] Because of his prior criminal record, he was sentenced to a total term of fifteen years in prison. [Opposition at 2; Lodgment 1 at 1.] He filed a direct appeal and a petition for writ of habeas corpus with the California appellate court; the court affirmed the judgment and denied the petition. [Lodgments 1, 3 (Petition for Writ of Habeas Corpus filed in the California Court of Appeal, Fourth Appellate District, Division One, with denial order dated February 18, 2005).] He then filed a petition for review with the California Supreme Court, which the court denied on May 11, 2005. [Lodgment 2 (Petition for Review to the California Supreme Court, with denial order dated May 11, 2005).]

  On July 18, 2005, Petitioner filed this Petition raising eleven different claims. [Dkt. No. 1.] The Court ordered Respondent to file a response to the Petition. [Dkt. No. 6.] Before a responsive pleading was filed, on September 23, 2005, Petitioner filed a motion requesting a stay and abeyance of this Petition so that he can return to state court to raise additional claims based on "newly discovered evidence." [Request to Hold Federal Habeas Corpus Petition in Abeyance to Allow Petitioner to Return to State Court Under New Discovered Evidence ("Motion").] The motion was perfunctory, however, and lacked the information necessary for the Court to determine whether a stay would be appropriate under Rhines v. Weber, 544 U.S. ___, 125 S. Ct. 1528 (2005). Accordingly, the Court ordered Petitioner to submit a supplement to his motion addressing the following matters: (1) identification of the claims that are unexhausted; (2) a brief statement regarding the merits of these unexhausted claims; (3) a brief statement regarding whether Petitioner can establish good cause for failing to exhaust these claims in state court before filing his federal Petition; and (4) a brief discussion of whether Petitioner would be time-barred from returning to federal court after exhausting his state judicial remedies if the Court were to deny his request for a stay. [Dkt. No. 8.]

  On October 17, 2005, Petitioner submitted a supplement to the motion in accordance with this Court's order. [Petitioner's Response to Order Requiring Supplement to Motion for Stay and Abeyance ("Supplement").] In the supplement to his motion, Petitioner identifies three new claims that he wishes to raise; he asserts that these claims are based on "newly discovered evidence" related to the automobile gauge that he stole from the Wal-Mart store. [Supplement at 1-2.] Specifically, he wishes to raise a claim of prosecutorial misconduct based on the "deliberate[] suppress[ion]" of certain exculpatory evidence related to the gauge; a claim of ineffective assistance based on counsel's alleged failure to adequately investigate, which would have led to the discovery of this evidence; and a claim of "judicial abuse of discretion" based on the trial court's supplemental charge to the jury.*fn1 [See Supplement at 2-6.] Nowhere in his filings does Petitioner describe or explain the exact nature of this "exculpatory evidence," although he apparently believes that it would help him "prove his innocence." [Supplement at 2.] On October 27, 2005, Respondent filed an opposition to Petitioner's motion, arguing that the Court should deny the stay because Petitioner has not established good cause for his failure to exhaust. [Opposition at 7-8.] Respondent also argues that there is no basis for a stay because Petitioner has more than enough time to return to state court, exhaust his additional claims, and refile his federal habeas petition. [Opposition at 10.]

  Analysis

  In Rose v. Lundy, the Supreme Court held that a federal habeas corpus petition containing both exhausted and unexhausted claims, called a "mixed" petition, must be dismissed without prejudice to allow the petitioner to return to state court. Rose v. Lundy, 455 U.S. 509, 522 (1982). When Rose was decided, there was no statute of limitations for filing a federal habeas corpus petition; after exhausting claims in state court, a petitioner could return to federal court "with relative ease." Rhines, 125 S.Ct. at 1533. The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") changed many aspects of federal habeas corpus proceedings, including imposing a one-year statute of limitations for bringing a habeas corpus petition in federal court. 28 U.S.C. § 2244(d)(1); Rhines, 125 S.Ct. at 1533. In Rhines, the Supreme Court recognized that because of the one-year statute of limitations imposed by AEDPA, a dismissal without prejudice pursuant to Rose could effectively deny a petitioner the opportunity to seek federal review. Rhines, 125 S.Ct. at 1533-34. Thus, the Court held that a federal court possesses discretion to stay a mixed petition and hold proceedings in abeyance while the petitioner returns to state court to exhaust his claims. Id. at 1534-35; Jackson v. Roe, 425 F.3d 654, 659-60 (9th Cir. 2005). The Court cautioned, however, that a stay and abeyance "should be available only in limited circumstances." Rhines, 125 S.Ct. at 1535. If employed too often, the procedure could undermine the purposes of AEDPA, namely, to reduce delay and streamline federal habeas corpus proceedings. Id. at 1535. Accordingly, under Rhines, a stay is not proper unless the petitioner can demonstrate good cause for failing to exhaust his claims before filing a federal habeas corpus petition. Id. A stay should not be granted if the unexhausted claims are "plainly meritless," or if the petitioner has engaged in "abusive litigation tactics or intentional delay." Id. A stay should be granted if a dismissal would effectively bar the Petitioner from returning to federal court because the one-year statute of limitations has already expired or is close to expiring. Id. at 1533.

  As a preliminary matter, Respondent points out that the Petition contains an unexhausted claim in addition to the three new claims Petitioner seeks to raise. Specifically, Respondent argues that Petitioner did not exhaust claim six of the Petition, that his counsel was ineffective in failing to request a jury instruction on the lesser-included offense of petty theft. [Opposition at 8.] Respondent asserts that Petitioner failed to present this claim to the California Supreme Court. [Id. at 8.] A review of the relevant documents supports the Respondent's assertion. Petitioner did raise his ineffective-assistance claim in a habeas corpus petition filed with the California appellate court, but he did not renew the claim in his petition for review to the California Supreme Court. [Lodgment 1 at 18 n. 5; Lodgment 2; Lodgment 3 at 20-29.] To properly exhaust, he must present his claim to the state's highest court. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999); Batchelor v. Cupp, 693 F.2d 859, 862-863 (9th Cir. 1982). He did not do so. In his petition for review to the California Supreme Court, Petitioner raised a related argument that the trial court violated his Fourteenth Amendment due process rights by failing, sua sponte, to instruct the jury on the lesser-included offense of petty theft. [Lodgment 2 at 17-19.] This claim is distinct from a claim based on the Sixth Amendment right to effective assistance of counsel. To properly exhaust, Petitioner must fairly present the state court with both the operative legal principles and the facts surrounding his claim. Picard v. Connor, 404 U.S. 270, 277-78; see also Kelly v. Small, 315 F.3d 1063, 1069 (9th Cir. 2003) (thorough description of operative facts and legal theory is necessary for proper exhaustion). It is thus insufficient that Petitioner made a "somewhat similar" claim related to the jury instructions in his filing to the state supreme court. Anderson v. Harless, 459 U.S. 1, 6 (1982); see also Vasquez v. Hillery, 474 U.S. 254, 260 (1986) (claim not fairly presented if facts alleged in federal court "fundamentally alter" nature of claim presented to state courts). Therefore, the Court agrees with Respondent that claim six was not properly exhausted. Respondent asserts that because the Petition contains an unexhausted claim it must be dismissed without prejudice pursuant to Rose. [Opposition at 8.] As is discussed above, however, under Rhines this Court has discretion to stay proceedings on a mixed petition in lieu of dismissing it outright.*fn2 The Court first must consider whether Petitioner has established good cause for his failure to exhaust prior to filing his Petition. Rhines, 125 S.Ct. at 1535. In attempting to establish good cause for his failure to exhaust, Petitioner asserts that he "has been seeking information to support his claim of newly discovered evidence since 12/2003." [Supplement at 6.] He states generally that he wrote letters to his trial counsel and sought information from various police agencies; he does not, however, provide any detail regarding when he took these actions; precisely what actions he took; what evidence or information he was seeking; or how he eventually obtained this "newly discovered evidence." [Id. at 6-7.] Nor does he provide any documentation or substantiation to support his assertions. His sole explanation for not bringing his claims in state court prior to filing this Petition is as follows: "A while after petitioner had filed his habeas petition in federal court by grace petitioner had received the needed information to support his claim of newly discovered evidence." [Id. at 7.] The Court finds that these general assertions do not establish good cause for failing to exhaust. Without more, the Court cannot adequately assess whether Petitioner acted diligently in pursuing these claims. Nor is it clear based on the documents before the Court that Petitioner's new claims have any merit. Rhines, 125 S.Ct. at 1535. Again, Petitioner offers only generalities about the nature of the "newly discovered evidence," without any documentation to substantiate or explain the significance of this evidence, making it impossible for the Court to assess the merit of these new claims.

  Moreover, this is not a compelling case for a stay since Petitioner has ample time left to return to state court, exhaust his claims, and refile a petition in federal court. Under AEDPA, a conviction ordinarily becomes final, and the one-year limitations period begins to run, at the conclusion of direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1). In this case, the California Supreme Court denied review on May 11, 2005; the judgment became "final" ninety days later when the time for filing a petition for writ of certiorari to the United States Supreme Court expired. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001). Petitioner therefore has until August 2006 to exhaust his claims in state court and refile a petition in federal court; if he acts diligently, this should be more than enough time, particularly since § 2244(d)(2) provides that the statute of limitations is tolled during the time a "properly filed" state habeas corpus petition is pending.*fn3 28 U.S.C. § 2244(d)(2); Rhines, 125 S.Ct. at 1532; but see Bonner v. Carey, ___ F.3d ___, No. 02-56022 (9th Cir. Oct. 6, 2005) (state petition ultimately dismissed by California courts as untimely did not toll statute of limitations period). Petitioner himself acknowledges that the statute of limitations does not pose a concern in this case. [See Supplement at 7-8 ("[P]etitioner would not be time barred from returning to the federal court after exhausting his state remedies if the federal court were to deny his request for stay and abeyance.").] Accordingly, the Court does not find this the type of "limited circumstances" in which a stay and abeyance is warranted. See Rhines, 125 S.Ct. at 1535. For all of these reasons, the Court RECOMMENDS that the motion for stay and abeyance be DENIED.

  The Court further RECOMMENDS that the District Court provide Petitioner with an opportunity, and set deadlines, for him to decide how he wishes to proceed in this case. Pursuant to Rose, Petitioner has the following options:

  Option 1: Dismiss case in order to exhaust state court remedies

  Petitioner may move to dismiss the present action in order to exhaust all grounds raised in his federal Petition. To do so, Petitioner should file a pleading with this Court entitled, "Motion to Dismiss Habeas Corpus Petition In Order to Exhaust State Court Remedies." Before or after filing such a motion, Petitioner may present the federal issues framed in the Petition to the California courts. If relief is denied, Petitioner may file a new petition with this Court containing only issues that have been fully exhausted. See Rose, 455 U.S. at 520-21. Consequences of selecting Option 1: If Petitioner elects to dismiss this case by filing a "Motion to Dismiss Habeas Corpus Petition In Order to Exhaust State Court Remedies," this Court will dismiss the present action without prejudice to Petitioner's refiling, in the future, a petition which contains only exhausted issues. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998); In re Turner, 101 F.3d 1323 (9th Cir. 1997). However, the Court cautions Petitioner that all his claims may be barred by the statute of limitations if he chooses this option.

  Option 2: Formally abandon unexhausted claims

  Petitioner may proceed with his exhausted claims by formally abandoning all his unexhausted claims. If Petitioner chooses Option 2, he must file a pleading with this Court entitled, "Formal Declaration of Abandonment of Unexhausted Claims." The declaration must state that Petitioner voluntarily, knowingly, and intelligently agrees to abandon his unexhausted claims.

  Consequences of selecting Option 2: If Petitioner timely files and serves a "Formal Declaration of Abandonment of Unexhausted Claims," the Court will address Petitioner's exhausted claims, but Petitioner may be barred from ever raising the unexhausted claim in any federal court. If Petitioner abandons his unexhausted claims and the Court proceeds to issue a decision addressing the merits of the exhausted claims, any later filed habeas corpus petition brought under 28 U.S.C. § 2254 will be considered "second" or "successive." See Rose, 455 U.S. at 521; Slack v. McDaniel, 529 U.S. 473, 488 (2000) (stating that a court's ruling on the merits of claims presented in a first § 2254 petition renders any later petition successive). Petitioner will be required to obtain authorization from the court of appeals to file a second or successive petition in this Court. 28 U.S.C. § 2244(b)(3). Such authorization requires Petitioner to make a prima facie showing to the court of appeals that he has satisfied the requirements of § 2244(b)(2). Even if Petitioner receives permission from the court of appeals to file the second or successive petition, this Court still must determine if the petition does in fact satisfy the requirements for filing a second or successive petition under § 2244(b)(2). Conclusion

  For all of the above reasons, the Court RECOMMENDS that the motion for stay and abeyance be DENIED. This Report & Recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1).

  IT IS ORDERED that no later than November 15, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

  IT IS SO ORDERED.

20051102

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.