United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER'S MOTION FOR A STAY (DOC. 14)
FINDINGS AND RECOMMENDATIONS TO RESCHEDULE THE DEADLINE FOR THE FILING OF
BARBARA A. McAULIFFE, Magistrate Judge.
Petitioner is a prisoner proceeding pro se and in forma pauperis 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 through 304. Pending before the Court is the Petitioner's motion to hold the petition in abeyance, which was filed on January 6, 2014. Respondent filed opposition on March 4, 2014, and Petitioner filed a reply on March 13, 2014.
In the petition filed on October 24, 2013, Petitioner alleges that he is serving a sentence of forty-four years to life imposed on March 28, 2011, by the Superior Court of the State of California, County of Merced (MCSC) for convictions of first and second degree murder with enhancements for use of a knife with respect to both victims. (Pet., doc. 1, 1-2.) Petitioner raises the following claims in the petition: 1) a pretrial statement made by Petitioner during questioning by law enforcement officers was admitted into evidence in violation of his Miranda rights; and 2) the failure to instruct the jury on the lesser included offenses of voluntary and involuntary manslaughter violated his rights to a fair trial guaranteed by the Fifth, Sixth, and Fourteenth Amendments. (Id. at 6-10.) Respondent answered the petition on March 23, 2014. The deadline for filing a traverse will be scheduled after the conclusion of the instant motion proceedings.
II. Motion for a Rhines Stay
Petitioner moves for a stay to permit him to exhaust claims that there was insufficient evidence of first degree murder and of second degree murder, and that Petitioner suffered the ineffective assistance of counsel when appellate counsel failed to raise these issues on direct appeal. (Doc. 14, 1-2.) Petitioner argues that the evidence shows that one murder victim, William Cisneros, killed the other murder victim, Maria Clara Cisneros (Clara), who was William's wife. William then came after Petitioner and tripped and fell; Petitioner grabbed the knife and stabbed William to death, fearing that if William regained his stance he would kill Petitioner because William had discovered Petitioner and Clara engaging in sexual relations. (Id. at 1-2.) Petitioner argues that because in relation to William he acted in self-defense and/or the sudden heat of passion, Petitioner did not form malice, which is a necessary element of murder under California law, let alone premeditation and deliberation, which are elements of first degree murder under California law. Petitioner contends that under the evidence, he is guilty at most of the voluntary or involuntary manslaughter of William, and he is completely innocent of the murder of Clara.
Respondent argues that Petitioner's claims of insufficiency of the evidence are without merit, there was no ineffective assistance of counsel, and a stay under Rhines is inappropriate.
A. Rhines Stay
A district court has discretion to stay a petition which it may validly consider on the merits. Rhines v. Weber , 544 U.S. 269, 276 (2005); King v. Ryan , 564 F.3d 1133, 1138-39 (9th Cir. 2009), cert. den., 558 U.S. 887. A petition may be stayed either under Rhines, or under Kelly v. Small , 315 F.3d 1063 (9th Cir. 2003). King v. Ryan , 564 F.3d at 1138-41.
Under Rhines, the Court has discretion to stay proceedings; however, this discretion is circumscribed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Rhines , 544 U.S. at 276-77. In light of AEDPA's objectives, "stay and abeyance [is] available only in limited circumstances" and "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court." Id. at 277-78. A stay of a mixed petition pursuant to Rhines is required only if 1) the petitioner has good cause for his failure to exhaust his claims in state court; 2) the unexhausted claims are potentially meritorious; and 3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Id.
A petition may also be stayed pursuant to the procedure set forth by the Ninth Circuit in Kelly v. Small , 315 F.3d 1063. Under this three-step procedure: 1) the petitioner files an amended petition deleting the unexhausted claims; 2) the district court stays and holds in abeyance the fully exhausted petition; and 3) the petitioner later amends the petition to include the newly exhausted claims. See, King v. Ryan , 564 F.3d at 1135. However, the amendment is only allowed if the additional claims are timely. Id. at 1140-41.
A stay under Rhines permits a district court to stay a mixed petition and does not require that unexhausted claims be dismissed while the petitioner attempts to exhaust them in state court. In contrast, a stay pursuant to the three-step Kelly procedure allows a district court to stay a fully exhausted petition, and it requires that any unexhausted claims be dismissed. Jackson v. Roe , 425 F.3d 654, 661 (9th Cir. 2005).
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 (2009) (concluding that a petitioner's impression that counsel had exhausted a claim did not demonstrate good cause).
Recently, the Ninth Circuit Court of Appeals found that a district court had abused its discretion in deciding that the Rhines good cause standard was not satisfied where a § 2254 petitioner provided argument and supporting evidence that his appellate counsel was ineffective in failing to investigate and raise the ineffective assistance of counsel (IAC) at trial for trial counsel's failure to present significant mitigating evidence at the penalty phase of the petitioner's capital murder trial. Blake v. Baker , 745 F.3d 977 (9th Cir. 2014), pet. cert. filed June 14, 2014, no. 13-1488. The court in Blake stated the following regarding the good cause standard:
The good cause element is the equitable component of the Rhines test. It ensures that a stay and abeyance is available only to those petitioners who have a legitimate reason for failing to exhaust a claim in state court. As such, good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure. See Pace , 544 U.S. at 416, 125 S.Ct. 1807 ("A petitioner's reasonable confusion... will ordinarily constitute good cause' [under Rhines ]...." (emphasis added)). (Footnote omitted.) An assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner's failure to exhaust. In Wooten, for example, the petitioner's excuse that he was "under the impression" that his claim was exhausted was not a reasonable excuse because no evidence indicated that the petitioner's ignorance was justified. To the contrary, the petitioner's attorney sent him a copy of his state petition, which did not mention the unexhausted claim, and the petitioner did not argue that his attorney provided ineffective assistance for failing to include the claim. 540 F.3d at 1024 n. 2; see also King v. Ryan , 564 F.3d 1133, 1138 (9th Cir.2009) (holding that the district court did not abuse its discretion in finding that the petitioner did not establish good cause when his factual allegations were "insufficiently detailed").
While a bald assertion cannot amount to a showing of good cause, a reasonable excuse, supported by evidence to justify a ...