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David J. Valencia, Jr v. Michael Martel


August 23, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge





Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C.§ 636(b)(1) and Local Rules 302 and 303. Pending before the Court is Petitioner's motion to amend the petition to name a proper respondent filed on July 8, 2011, and Petitioner's responses to the Court's order to show cause, which were filed on July 8 and 29, 2011.

I. Motion to Amend the Petition

In response to the Court's previous grant of leave to amend the petition, Petitioner requests that Michael Martel be named as Respondent in this matter.

A petitioner seeking habeas relief must name the state officer having custody of him or her as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). Normally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). Therefore, Petitioner's request is proper.

Accordingly, Petitioner's motion for leave to amend the petition to name Michael Martel as Respondent in this matter will be granted, and the Clerk will be directed to change the name of Respondent to Michael Martel.

II. Response to the Order to Show Cause

In the original petition, Petitioner alleged that he is an inmate of the San Quentin State Prison serving a sentence of twenty-five (25) years to life imposed on January 6, 2010, in the Tuolumne County Superior Court upon Petitioner's conviction of corporal injury to a spouse in violation of Cal. Pen. Code § 273.5(a). Petitioner raised the following claims in the petition as to which state court remedies were exhausted: 1) the trial court's failure to instruct on the defense of necessity violated his right to due process of law; 2) trial counsel's failure to request an instruction on the necessity defense violated Petitioner's rights under the Sixth and Fourteenth Amendments to the effective assistance of counsel; and 3) the sentencing court's failure to strike at least one prior conviction resulted in a sentence that was disproportionately severe and grossly excessive in violation of Petitioner's right to due process of law. (Pet. 6-11.)

However, Petitioner also alleged violations of due process of law and ineffective assistance of counsel under the Sixth and Fourteenth Amendments based on the trial court's admission of unspecified evidence concerning a nine-year-old matter involving a negotiated disposition that was relevant to impeach witness Kendall Long. (Pet. 13.)

On July 29, 2011, the Court issued an order to Petitioner to show cause why the petition should not be dismissed for failure to exhaust state court remedies as to the claim or claims concerning the negotiated disposition that should have been used to impeach witness Kendall Long. (Pet. 13.)

On July 8, 2011, Petitioner filed a response to the order to show cause and a motion requesting "statutory tolling"; on July 13, 2011, Petitioner filed a supporting declaration and a further response to the order to show cause. The Court DEEMS these documents to be a motion for a stay of the proceedings. (Docs. 11, 13, 14.)

In the response, Petitioner states that the issue in question was featured as a footnote in Petitioner's opening brief on direct appeal. (Doc. 11, 1.)

Further, Petitioner lists the following issues based on federal constitutional provisions that he seeks to raise in the petition but which have not yet been fully presented to the state courts: 1) a violation of due process by denial of Petitioner's motion in limine to exclude as unduly prejudicial the testimony of a witness in a nine-year-old case; 2) a violation of due process based on the admission of the witness's testimony without disclosure to the jury of impeachment evidence consisting of a negotiated disposition; 3) a violation of the right to the effective assistance of trial counsel by counsel's failure to impeach the witness with evidence of the negotiated disposition;

4) denial of the right to a fair trial and an impartial tribunal by the trial court's failure to recuse itself from presiding over Petitioner's trial after having previously signed documents evincing a belief in Petitioner's guilt; 5) denial of the right to the effective assistance of counsel based on counsel's failure to disqualify the trial judge; 6) denial of the right to the effective assistance of appellate counsel by appellate counsel's failure to raise the issue of judicial bias; 7) ineffective assistance of trial counsel based on counsel's failure to introduce a letter from Petitioner's wife indicating that she accidentally bumped her own head while trying to enter her truck and drive while intoxicated; 8) a denial of due process based on the admission of prejudicial photographs, including a) an unduly enlarged view of the injuries suffered by Petitioner's wife, and b) a view of Petitioner's hands with tattoos and handcuffs; 9) a denial of the right to the effective assistance of counsel based on counsel's failure to object to the admission of the unduly suggestive photographs; and 10) a hindrance of Petitioner's right to a meaningful appeal based on Petitioner's inability to obtain a transcript of a proceeding and a body attachment order concerning Petitioner's wife, who told Petitioner that she was being harassed by the prosecution with respect to her testimony and was being pressured to persuade Petitioner to enter a guilty plea pursuant to a plea offer. (Doc. 11, 5-8.)

On July 13, 2011, Petitioner filed a declaration in support of his motion for a stay which he had been unable to attach to the previously filed motion. (Doc. 13, 1.)

On July 29, 2011, Petitioner filed a further response to the order to show cause and a second motion requesting a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005).

It is established that a petition for writ of habeas corpus may be filed in the trial court while an appeal is pending. Cal. Const. art. VI, § 10; In re Carpenter, 9 Cal.4th 634, 645-46 (1995). However, correspondence shows that as late as October 6, 2010, Petitioner's appointed appellate counsel continued to advise Petitioner to wait to file a petition for writ of habeas corpus raising the ineffective assistance of counsel until after the conclusion of the direct appeal; counsel further advised that having the appellate court consider Petitioner's petition for habeas relief at the same time it considered his appeal would not be helpful to his direct appeal and in fact would dilute the strength of the issues raised in the appeal. (Doc. 13, 3-5; doc. 14, 6.) The Supreme Court of California denied a petition for review on May 11, 2011; Petitioner declares, and correspondence reflects, that his receipt of notice of the denial was delayed until after May 24, 2011. Further, Petitioner declares that he did not know earlier about the issues he seeks to raise because there was a delay in receipt of the record on appeal until March 31, 2011. Petitioner was in administrative segregation for his own protection from March 8, 2010, through February 2, 2011 (eleven months) with limited access to the law library. (Doc. 14, 9.) Petitioner filed a grievance concerning the restrictions on access to the law library, and he was ultimately granted "PLU status" with increased access commencing on or about July 15, 2011. (Doc. 14, 11.)

III. Motion to Stay the Proceedings

A district court may not adjudicate a petition containing both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, since the advent of the statute of limitations provided for by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d), it is recognized that a district court has the inherent authority to exercise its discretion to stay a mixed petition to allow the petitioner to present unexhausted claims to the state court in the first instance and then return to federal court for review of the perfected petition. Rhines v. Weber, 544 U.S. 269, 275-77 (2005). Stay and abeyance are available only in limited circumstances where 1) the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court, 2) the petitioner has not engaged in abusive litigation tactics or intentional delay, and 3) the unexhausted claims are not plainly meritless. Id. at 277-78. Because of the underlying purposes of the AEDPA to reduce delays in the execution of state and federal criminal sentences and to encourage petitioners to seek relief initially from the state courts, a stay should endure for only a reasonable time and should be explicitly conditioned on the petitioner's pursuit of state court remedies within a brief interval. Id.

The Supreme Court has not articulated what constitutes good cause under Rhines, but it has stated that "[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute 'good cause' for him to file" a "protective" petition in federal court. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). The Ninth Circuit has held that the standard is a less stringent one than that for good cause to establish equitable tolling, which requires that extraordinary circumstances beyond a petitioner's control be the proximate cause of any delay. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). The Ninth Circuit has recognized, however, that "a stay-and-abeyance should be available only in limited circumstances." Id. at 661 (internal quotation marks omitted); see, Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008), cert. denied, --- U.S. ----, 129 S.Ct. 2771, 174 L.Ed.2d 276 (2009) (concluding that a petitioner's impression that counsel had exhausted a claim did not demonstrate good cause).

Here, Petitioner has set forth specific facts tending to show a reasonable basis for confusion concerning the timeliness of the state court filings. The allegations of the petition involve ineffective assistance of both trial and appellate counsel. It is evident that Petitioner's efforts to mount a collateral attack on his conviction were delayed by instructions given by Petitioner's appellate counsel. The record reflects Petitioner's diligence in attempting to discern issues and to initiate exhaustion of state court remedies. The Court concludes that the unique circumstances of the present case constitute good cause for Petitioner's failure to exhaust the unexhausted claims.

Further, the allegations of the petition tend to reflect an absence of intentional delay. Petitioner sought to raise the omitted issues during proceedings on direct appeal; Petitioner diligently combed the record for issues once appellate counsel relinquished the record; and Petitioner's placement in segregated housing and other restrictions affected Petitioner's ability to prepare state court petitions. Petitioner has filed numerous claims or petitions in the trial court. (Doc. 11, 5-8.) Thus, exhaustion of state court remedies is under way.

Further, it does not appear that the unexhausted claims are plainly without merit.

Therefore, the Court will grant a stay of the proceedings so Petitioner can complete exhaustion of the additional claims sought to be raised in the initial petition and in the motion for a stay.

However, the Court will not indefinitely hold the petition in abeyance. Rhines, 544 U.S. at 277. Petitioner must proceed diligently to pursue his state court remedies and must file a status report every ninety (90) days advising the Court of the status of the state court proceedings. Following final action by the state courts, Petitioner will be allowed thirty (30) days to notify the court of completion of exhaustion. Failure to comply with these instructions and time allowances will result in this Court's vacating the stay nunc pro tunc to the date of this order. Rhines, 544 U.S. at 278.*fn1

IV. Disposition

Accordingly, it is ORDERED that:

1. Petitioner's motion to stay the petition and hold the exhausted claims in abeyance is GRANTED;

2. The instant petition is STAYED pending exhaustion of Petitioner's state court remedies as to the additional claims set forth herein;

3. Petitioner is DIRECTED to file a status report within ninety (90) days of the date of service of this order advising the Court of the cases that have been filed in state court, the date the cases were filed, and any outcomes;

4. Petitioner is DIRECTED to file a new status report every ninety (90) days thereafter; and

5. Petitioner is GRANTED thirty (30) days time following the final order of the state courts in which to file a final status report and to seek to amend the petition in this proceeding to include the additional claims set forth above; and

6. Petitioner's motion for leave to amend the petition to name Michael Martel as Respondent in this matter is GRANTED; and

7. The Clerk of Court is DIRECTED to change the name of Respondent to Michael Martel.

Petitioner is forewarned that failure to follow this order will result in dismissal of the petition pursuant to Local Rule 110.


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