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Levao v. Lewis

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 23, 2010

UNITED LEVAO, PETITIONER,
v.
D.T. LEWIS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Thomas J. Whelan United States District Judge

ORDER(1) ADOPTING REPORT AND RECOMMENDATION [DOC. 9], (2) OVERRULING PETITIONER'S OBJECTIONS [DOC. 11], AND (3) DENYING MOTION FOR STAY AND ABEYANCE [DOC. 3]

On May 13, 2010, Petitioner United Levao, a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 ("Petition"), and a motion to stay the federal habeas proceedings and hold the Petition in abeyance. Respondent D.T. Lewis opposes the motion.

On July 29, 2010, United States Magistrate Judge Nita L. Stormes issued a Report and Recommendation ("Report") recommending that this Court deny the motion for stay and abeyance. Petitioner filed an objection to the Report. Respondent did not file a reply.

The Court decides the matters on the papers submitted and without oral argument. See Civ. Local R. 7.1(d)(1). For the reasons outlined below, the Court ADOPTS the Report in its entirety (Doc. 9), OVERRULES Petitioner's objections (Doc. 11), and DENIES Petitioner's motion for stay and abeyance (Doc. 3).

I. BACKGROUND

In 2006, Petitioner was convicted in San Diego Superior Court of first-degree murder with enhancements for personal use of a firearm and commission of a crime for the benefit of a gang. (Pet. ¶¶ 1--6 [Doc. 1]; Resp't's Opp'n Ex. D, at 56 [Doc. 6-1].) The trial court sentenced Petitioner to state prison for 25 years to life for the murder conviction, added a consecutive 25 years to life for the firearm enhancement, and stayed the sentence on the gang enhancement. (Pet. ¶¶ 4--6; Resp't's Opp'n Ex. D, at 56.)

Petitioner raised four individual claims on direct appeal. (Resp't's Opp'n Ex. D, at 13, 22--51.) On November 12, 2008, the California Court of Appeal rejected Petitioner's claims and affirmed the trial court's judgments, but with modifications based on grounds separate from Petitioner's individual claims.*fn1 (Pet. ¶ 11; Resp't's Opp'n Ex. D, at 70.) Petitioner pursued review in the California Supreme Court, but his Petition for Review was denied. (Pet. ¶ 12; Resp't's Opp'n Ex. C, at 10.)

On May 6, 2010, Petitioner began pursuing his state-court remedies when he delivered his state habeas petition to prison authorities. (Pet. ¶ 24; Resp't's Opp'n Ex. B, at 3.) On May 13, 2010, he filed a Petition a for Writ of Habeas Corpus under 28 U.S.C. § 2254, and a motion to stay the federal habeas proceedings and hold the Petition in abeyance.

In accordance with the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Petitioner's one-year statue of limitations to file a federal habeas petition expired on May 12, 2010.*fn2 (Pet. ¶ 12.) On June 10, 2010, Respondent filed his opposition to the stay-and-abeyance motion. Petitioner filed his reply on July 19, 2010. Also, on June 10, 2010, Petitioner filed a petition for writ of habeas corpus in San Diego Superior Court. (Resp't's Opp'n Ex. B, at 3--6.)

On July 29, 2010, Magistrate Judge Stormes issued the Report finding that Petitioner filed a mixed petition containing exhausted and unexhausted claims. (Report 1--2 [Doc. 9].) Petitioner exhausted his state-court remedies with respect to the first four claims raised on direct appeal, but not the five additional claims raised in his federal habeas petition. (Id.; see Pet., Attach. 1, at 5--13.) As such, the Report recommended that this Court deny the motion for stay and abeyance, but presented Petitioner with options for moving forward with his Petition. (Id. at 7.) On August 26, 2010, Petitioner filed his objection to the Report. Respondent did not file a reply.

II. LEGAL STANDARD

A district court's duties concerning a magistrate judge's report and recommendation and a respondent's objections thereto are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). When no objections are filed, the district court is not required to review the magistrate judge's report and recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (holding that 28 U.S.C. § 636(b)(1)(c) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise") (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). This rule of law is well established within the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) ("Of course, de novo review of a R & R is only required when an objection is made to the R & R.") (emphasis added) (citing RenyaTapia, 328 F.3d at 1121); Nelson v. Giurbino, 395 F. Supp. 2d 946, 949 (S.D. Cal. 2005) (Lorenz, J.) (adopting report without review because neither party filed objections to the report despite the opportunity to do so, "accordingly, the Court will adopt the Report and Recommendation in its entirety."); see also Nichols v. Logan, 355 F. Supp. 2d 1155, 1157 (S.D. Cal. 2004) (Benitez, J.).

In contrast, the duties of a district court in connection with a magistrate judge's report and recommendation are quite different when an objection has been filed. These duties are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). Specifically, the district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate."

28 U.S.C. § 636(b)(1)(c)); see also United States v. Raddatz, 447 U.S. 667, 676 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).

III. DISCUSSION

A. Petitioner Has Not Demonstrated Good Cause for His Failure to Exhaust State Court Remedies

A district court may not grant a petition for writ of habeas corpus unless the petitioner exhausted available state-court remedies. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding that a federal district court must dismiss "mixed petitions" containing claims that have not been exhausted in state courts). In order to satisfy the exhaustion requirement, a petitioner must "fairly present[] his federal claim to the highest state court with jurisdiction to consider it . . . or . . . demonstrate[] that no state remedy remains available." Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971)). Furthermore, to "fairly present" a federal claim to the state court, a petitioner must specifically "alert the state court[] to the fact that he was asserting a claim under the United States Constitution." Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). The mere similarity between a claim of state and federal error, and general appeals to broad constitutional principles are insufficient to establish exhaustion. Id. (citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Duncan, 513 U.S. at 366).

A district court may grant a stay and abeyance for a mixed petition "only in limited circumstances." Rhines v. Weber, 544 U.S. 269, 276-77 (2005). Specifically, a stay-and-abeyance order is appropriate only when: (1) good cause exists for the petitioner's failure to exhaust; (2) the petitioner's unexhausted claims are not "plainly meritless;" and (3) there is no indication that the petitioner engaged in "abusive litigation tactics or intentional delay." Id. at 277-78; Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2005).

However, "good cause" under Rhines is not clearly defined. In the Ninth Circuit, good cause is, without further clarification, less stringent than the "extraordinary circumstances" standard for equitable tolling of the statute of limitations. See Jackson v. Roe, 425 F.3d 654, 656 (9th Cir. 2005). District courts within the Ninth Circuit have more narrowly defined the standard. Some have required the showing of "some objective factor external to the petitioner" that prevented timely exhaustion. Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005). Others have equated the good-cause standard to "excusable neglect." See Corjasso v. Ayers, No. CIVS970018GEBGGHP, 2006 WL 618380, at *1 (E.D. Cal. Mar. 9, 2006). The latter interpretation considers factors such as prejudice to the non-moving party, length of the delay and its effect on efficient court administration, and whether the delay was caused by factors beyond the control of the movant, and good faith. Id. at 1.

Here, Petitioner's good-cause showing for his failure to exhaust his claims prior to seeking federal habeas relief is clearly deficient. Petitioner blames his failure to exhaust his state-court remedies on a change in the Pelican Bay State Prison copy policy. (Pet'r's Objection 2--3 [Doc. 11].) However, Petitioner claims he was ready to mail out his state habeas petition on May 6, 2010 when he sought photocopies. (Id. at 2--3.) Also, when Petitioner went to the prison law library to make photocopies, prison authorities informed him that he would lose possession of his state habeas petition until May 25, 2010 while the prison made a decision regarding his request. (Id.) In spite of knowing that the prison authorities would not return his state habeas petition before May 12, 2010-when the statute of limitations for filing his federal habeas petition would expire-Petitioner requested photocopies. (Id.) That is, he could have timely filed his state habeas petition but chose not to do so. (See id.) Thus, the delay was not caused by any objective external factors beyond Petitioner's control, but rather Petitioner himself. See Corjasso, 2006 WL 618380, at *1; Hernandez, 397 F. Supp. 2d at 1207.

Furthermore, Petitioner had one year to exhaust his state-court remedies. Petitioner was aware of the factual basis for all of the unexhausted claims since his conviction became final because all of the claims are based on events that occurred at trial, and he received his legal papers on April 9, 2009. (See Pet. ¶¶ 11--22.) But Petitioner has not explained why it took him almost one year to prepare and file his state habeas petition. He had ample time to exhaust his claims but did not use the time he had available to do so. Also, Petitioner requested photocopies on May 6, 2010 and received a response from the prison by May 21, 2010. (Pet'r's Objection 2; Pet'r's Mot., Attach. 2 at 17 [Doc. 3].) Any delay allegedly caused by the prison's change in the copy policy is nominal relative to the one year Petitioner had to prepare and file his state habeas petition following the finality of his conviction. See 28 U.S.C. § 2244(d)(1)(A)-(D).

Based on the above, Petitioner failed to demonstrate good cause for his failure to exhaust his claims in state court.*fn3 He has neither shown "some objective factor external to [him]" that prevented timely exhaustion, nor "excusable neglect." See Corjasso, 2006 WL 618380, at *1; Hernandez, 397 F. Supp. 2d at 1207. Therefore, the stay-and-abeyance procedure is not appropriate.

B. To Avoid the Court Dismissing the Petition, Petitioner Must Choose One of the Following Options

Based on the fact that the petition is mixed and to avoid the Court dismissing the Petition on its own accord, Petitioner must choose one of the following options.

1. First Option: File a Motion for Withdrawal and Abeyance

A second method of staying a timely federal habeas petition while a petitioner returns to state court to exhaust unexhausted claims is the "withdrawal and abeyance" procedure. Robbins v. Carey, 481 F.3d 1143, 1148 (9th Cir. 2007) (citing Calderon v. Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1988)) (approving the withdrawal-and-abeyance procedure, also known as the Taylor stay-and-abeyance procedure); Olvera v. Giurbino, 371 F.3d 569, 572-73 (9th Cir. 2004); Smith v. Giurbino, No. 06cv700, 2008 WL 80983, *3 (S.D. Cal. Jan. 7, 2008) (Gonzalez, C.J.) (citing Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2002)). Unlike the stay-and-abeyance procedure, a petitioner seeking to use the withdrawal-and-abeyance procedure need not show good cause for his failure to exhaust. Robbins, 481 F.3d at 1148. The three-step withdrawal-and-abeyance procedure goes as follows: (1) the petitioner amends his mixed petition to remove the unexhausted claims; (2) the district court stays and holds the amended and fully exhausted petition in abeyance; and (3) the petitioner re-amends his petition to add the newly exhausted claims after litigating them in state court. Id. The newly exhausted claims, however, must "relate back" to the claims in the fully exhausted petition-that is, they must share a "common core of operative facts" with the previously exhausted claims. Kelly, 315 F.3d at 1142-43 (quoting Mayle v. Felix, 545 U.S. 644, 659 (2005)).

Petitioner is advised that it appears from the documents filed so far in this case that the AEDPA's one-year statute of limitations expired on May 12, 2010. If this is so, and absent any equitable tolling to which he may be entitled, he would be granted leave to amend his timely federal habeas petition with the newly exhausted claims only if he can demonstrate that they relate back to the claims in his fully exhausted petition under Mayle. If he is unable to demonstrate that the claims relate back, he will be unable to litigate those claims in this Court.

2. Second Option: Voluntarily Dismiss the Petition

Petitioner may move to voluntarily dismiss his entire federal habeas petition and return to state court to exhaust his unexhausted claims. Petitioner may then file a new federal habeas petition containing only exhausted claims. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may dismiss his petition to "return[] to state court to exhaust his claims").

Petitioner is cautioned, however, that any new federal habeas petition must be filed before the expiration of the one-year statute of limitations and in this case, as noted above, it appears the AEDPA's one-year statute of limitations expired on May 12, 2010. Duncan v. Walker, 533 U.S. 167, 176 (2001); see 28 U.S.C. § 2244(d).*fn4 The statute of limitations does not run while a properly filed state habeas corpus petition is pending. 28 U.S.C. § 2244(d)(2); see Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that "an application is 'properly filed' when its delivery and acceptance [by the appropriate court officer for placement into the record] are in compliance with the applicable laws and rules governing filings"); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding that a state application for post-conviction relief which is ultimately dismissed as untimely was neither "properly filed" nor "pending" while it was under consideration by the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 993. However, absent some other basis for tolling, the statute of limitations continues to run while the federal habeas petition is pending. Duncan, 533 U.S. at 181-82.

3. Third Option: Formally Abandon Unexhausted Claims

Petitioner may formally abandon his unexhausted claims and proceed with his exhausted claim. Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a mixed petition may "resubmit[ ] the habeas petition to present only exhausted claims"). However, Petitioner is cautioned that once he abandons his unexhausted claims, he may lose the ability to ever raise them again in federal court. See 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); see also 28 U.S.C. § 2244(a)-(b).*fn5

IV. CONCLUSION AND ORDER

In light of the foregoing, the Court ADOPTS the Report in its entirety (Doc. 9), OVERRULES Petitioner's objections (Doc. 11), and DENIES Petitioner's motion for stay and abeyance (Doc. 3).

Because the Petition is mixed and in order to avoid dismissal, Petitioner must choose one of the following options (explained more fully above):

1.) First Option: File a Motion for Withdrawal and Abeyance.If Petitioner chooses this option, he must file a request for withdrawal and abeyance no later than 30 days following the issuance of this order. Respondent may file a reply no later than 45 days following the issuance of this order.

2.) Second Option: Voluntarily Dismiss the Petition. If Petitioner chooses this second option, he must file dismissal papers no later than 30 days following the issuance of this order.

3.) Third Option: Formally Abandon Unexhausted Claims. If Petitioner chooses this third option, he must file a pleading with this Court no later than 30 days following the issuance of this order.

IT IS SO ORDERED.


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