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Cruz v. Mitchell

United States District Court, N.D. California

January 5, 2015

TOMAS VERANO CRUZ, Petitioner,
v.
KELLY MITCHELL, Respondent.

ORDER GRANTING STAY RE: ECF NO. 21

JON S. TIGAR, District Judge.

I. INTRODUCTION

Petitioner, a condemned prisoner at San Quentin State Prison, has filed a request to stay his federal habeas petition pending the completion of exhaustion proceedings in state court. Respondent opposes petitioner's request. For the reasons outlined below, petitioner's motion is GRANTED.

II. BACKGROUND

In September 1994, petitioner was sentenced to death in Sonoma County Superior Court following a conviction of first degree murder of Shasta County Deputy Sheriff Kenneth Perrigo, and forcible escape. Three special circumstances were found true: murder for the purpose of perfecting or attempting to perfect escape from custody, intentional murder of a police officer and lying in wait. People v. Cruz, 44 Cal.4th 636, 643 (2008). The California Supreme Court affirmed his conviction and death sentence on July 24, 2008. Id. The United States Supreme Court denied certiorari on March 2, 2009. Cruz v. California, 555 U.S. 1215 (2009).

Petitioner filed a state habeas petition on November 29, 2004. The California Supreme Court denied this petition on June 12, 2013. ECF No. 1.

Petitioner filed a request for appointment of federal habeas counsel and a stay of execution in this Court on June 16, 2013. This request was granted. ECF No. 3. His case was referred to the Selection Board for recommendation of counsel. The Court appointed counsel on November 19, 2013.

On February 21, 2014, the Court granted petitioner's request for equitable tolling of the statute of limitation, giving petitioner until November 19, 2014, to file a federal habeas petition. Petitioner filed a "mixed" federal habeas petition containing exhausted and unexhausted claims on November 13, 2014. A few days later, on November 17, 2014, he filed a state habeas petition containing his unexhausted claims.

In his current motion, petitioner asserts that in the course of preparing his federal petition, he has discovered unexhausted claims that were not previously raised (e.g. claims 3, 4, 5, 14, 23, 42, 44 and 45) and expanded other claims that he previously pled (e.g. claims 13, 15, 19, 27, 39 and 43). He requests that his petition be stayed and held in abeyance pending his exhaustion of claims in state court. Respondent contends that a stay is not warranted.

III. LEGAL STANDARD

The Supreme Court follows a rule of "total exhaustion, " requiring that all claims in a habeas petition be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 U.S. 509, 522 (1982). A district court is permitted, however, to stay a mixed petition to allow a petitioner to exhaust his claims in state court without running afoul of the one-year statute limitations period for receiving federal habeas review imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Rhines v. Weber, 544 U.S. 269, 273-75 (2005). A district court may stay a mixed petition if: 1) the petitioner has good cause for his failure to exhaust his claims, 2) the unexhausted claims are potentially meritorious, and 3) there is no indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278.

The Supreme Court has not articulated with precision what constitutes "good cause" for purposes of granting a stay under Rhines. In Pace v. Digugliemo, 544 U.S. 408, 416 (2005), the Supreme Court stated in dicta that a "petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute good cause' for him to file in federal court" without exhausting state remedies first. More recently, in Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012), the Supreme Court held that ineffective assistance of post-conviction counsel may constitute cause for overcoming procedural default.

The Ninth Circuit has clarified that "good cause" for failure to exhaust does not require "extraordinary circumstances." Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Nonetheless, the good cause requirement should be interpreted in light of the Supreme Court's admonition that stays be granted only in "limited circumstances" so as not to undermine the AEDPA's twin goals of reducing delays in the execution of criminal sentences, and streamlining federal habeas proceedings by increasing a petitioner's incentive to exhaust all claims in state court. Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008). A petitioner's mistaken impression that his counsel included a claim in an appellate brief does not qualify as "good cause" for failure to exhaust as such an allegation could be raised by any petitioner, rendering stay-and-abeyance orders routine. Id.

More recently, in Blake v. Baker, 745 F.3d 977, 983 (9th Cir. 2014), the Ninth Circuit held that "[ineffective assistance] by post-conviction counsel can be good cause for a Rhines stay, " finding that such a conclusion was consistent with and supported by Martinez. The court found that the "good cause element is the equitable component of the Rhines test, " and that "good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify [the failure to exhaust.]" Id . The petitioner in Blake argued that he failed to exhaust his ineffective assistance of trial counsel claim because state post-conviction counsel failed to discover evidence that he suffered extreme abuse as a child, as well as organic brain damage and psychological disorders. Id. at 982. He supported his argument with ...


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