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Johnny Avila, Jr v. Kevin Chappell

September 7, 2012


The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge


Order Granting Petitioner's Motion for Stay and Abeyance; Vacating Hearing; and Setting Schedule for Exhaustion Briefing HEARING DATE: September 10, 2012


On June 14, 2012, Petitioner Johnny Avila, Jr. ("Avila") filed his federal petition for writ of habeas corpus, and a Motion for stay and abeyance of his federal proceedings. Doc. 27. Avila concurrently filed a second state habeas petition (Case No. S203288), presenting unexhausted claims, with the California Supreme Court. Respondent Kevin Chappell ("Warden") filed an opposition to Avila's motion for stay and abeyance August 27, and Avila filed a reply August 29, 2012. This matter can be decided on the papers without need for a hearing.

Avila asserts he has discovered, and included in his federal petition, claims that were not previously raised in state court (Claims 1, 2, 8, 31, 50, and 51), and expanded other claims previously pled (Claims 9 and 30). Avila states the state exhaustion petition, filed contemporaneously with his federal petition, includes all of his unexhausted claims.

1 The claims in his federal petition which Avila admits are unexhausted 2 present the following allegations: Claim 1 - Intellectual Disability ("Atkins 3 claim")*fn1 ; Claim 2 - Cognitive Impairments Equal to Intellectual Disability; 4 Claim 8 - Jury Misconduct, Material Misstatement at Selection and Outside 5 Consultation during Penalty Deliberations; Claim 50 - Unconstitutional State 6 Appellate and Post-Conviction Review; and Claim 51 - Ineffective Assistance of 7 State Appellate and Habeas Counsel. The prior presented claims which are 8 expanded allege: Claim 9 - Ineffective Assistance of Counsel at Guilt; and 9 Claim 30 - Ineffective Assistance of Counsel at Penalty.

Avila's Motion for Stay and Abeyance

Avila alleges there is uncertainty over whether his state exhaustion petition will be considered properly filed, and thus whether it will toll the one-year statute of limitations. Avila contends there is good cause for this uncertainty, and also good cause for bringing the exhaustion petition at this time. Avila has asserted, in support of the timeliness of the claims in his exhaustion petition, that evidence was newly discovered through the provision of federal funding, and that post-conviction counsel was ineffective. Avila argues the vagueness and complexity of California's procedural bar rules, as well as their random enforcement, makes it impossible to reliably predict the state court's ruling on the timeliness of his exhaustion petition.

Avila contends that his state exhaustion petition contains potentially meritorious claims, and that he has not engaged in intentionally dilatory litigation tactics. Avila argues his federal proceedings should be stayed pending the resolution of his state exhaustion petition.

1 Warden's opposition 2 The Warden agrees there is no evidence that Avila has intentionally 3 engaged in dilatory litigation tactics, but contends he has not demonstrated good 4 cause for his failure to previously exhaust the unexhausted claims in state court. 5 The Warden asserts, contrary to Avila's argument, that under Pace there is no 6 reasonable confusion over the timeliness of Avila's exhaustion petition. The 7 Warden contends California's timeliness rule is firmly established and regularly 8 followed, and that Avila has failed to establish the absence of substantial delay 9 for his exhaustion petition, or good cause for the delay, or that the unexhausted claims fall within an exception to the timeliness rule.

The Warden argues that several of Avila's unexhausted claims reasonably could, and should, have been raised in the first state habeas petition. The Warden recommends rejection of the contention that other claims should be found timely due to the ineffectiveness of state post-conviction counsel, as Avila has not shown either deficient performance nor prejudice. The Warden also alleges that ineffectiveness of state post-conviction counsel is not available to allow consideration of Avila's untimely claims because he is not constitutionally entitled to counsel on state collateral review.

Lastly, the Warden contends that none of Avila's unexhausted claims fall within any exception to California's timeliness rules. Accordingly, the Warden argues that Avila has failed to establish good cause to stay the federal proceedings.

Avila's reply

Avila asserts his federal counsel have an ethical duty to independently investigate and timely present his habeas claims in federal court. In the absence of any waiver of the exhaustion requirement by the Warden, competent habeas 1 counsel who develop new claims and evidence with federal funds have no choice 2 but to file simultaneous federal and state petitions and seek exhaustion, as a 3 petitioner is prohibited under 28 U.S.C. ยง 2254(b)(1)(A) from proceeding with 4 litigation of unexhausted claims in federal court. Avila contends he has followed 5 the advice of the United States Supreme Court in Pace v. DiGuglielmo, 544 U.S. 408 6 (2005) and Rhines v. Weber, 544 U.S. 269 (2005). 7 Avila asserts his state exhaustion petition is not necessarily untimely, as 8 the California Supreme Court has ordered the Warden to file an informal 9 response to the petition, signaling that further briefing is desired. Avila contends that although his exhaustion petition was filed after the presumptive timeliness date, it contains allegations of "triggering" facts, the diligence of counsel, ...

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