United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S
MOTION TO DISMISS [DOC. NO. 14] FINDINGS AND RECOMMENDATION
TO DENY PETITIONER'S MOTION FOR STAY OF PROCEEDINGS [DOC.
NO. 17] [TWENTY-ONE DAY DEADLINE]
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
filed a habeas petition in this Court on October 19, 2016.
The Court ordered Respondent to file a response to the
petition. On January 17, 2017, Respondent, noting that two of
the three claims had not been presented to the California
Supreme Court, moved to dismiss the petition for failure to
exhaust state remedies. In response, Petitioner filed a
motion to stay the petition under Rhines v. Weber,
544 U.S. 269 (2005), so he could return to the state courts
to exhaust the two claims. Because the Court finds that the
criteria for a stay set forth in Rhines is not met,
the Court will recommend Respondent's motion to dismiss
be GRANTED and Petitioner's motion for a stay be DENIED.
petitioner who is in state custody and wishes to collaterally
challenge his conviction by a petition for writ of habeas
corpus must exhaust state judicial remedies. 28 U.S.C. §
2254(b)(1). The exhaustion doctrine is based on comity to the
state court and gives the state court the initial opportunity
to correct the state's alleged constitutional
deprivations. Coleman v. Thompson, 501 U.S. 722, 731
(1991); Rose v. Lundy, 455 U.S. 509, 518 (1982). A
petitioner can satisfy the exhaustion requirement by
providing the highest state court with a full and fair
opportunity to consider each claim before presenting it to
the federal court. Duncan v. Henry, 513 U.S. 364,
contends and Petitioner concedes that Grounds Two and Three
of the petition are unexhausted because they have not been
presented to the California Supreme Court. Therefore, the
petition is a mixed petition containing unexhausted claims
and must be dismissed. 28 U.S.C. § 2254(b)(1).
has requested a stay of the mixed petition so that he can
return to state court to exhaust the two claims. As will be
discussed below, the Court does not find it appropriate to
issue a stay in this case. Therefore, the Court will
recommend the petition be dismissed, but Petitioner be
granted an opportunity to withdraw the unexhausted claims in
lieu of dismissal.
Motion for Stay
district court has discretion to stay a mixed petition and
allow a petitioner to return to state court to exhaust state
remedies. Rhines v. Weber, 544 U.S. 269, 277 (2005).
However, the Supreme Court has held that this discretion is
circumscribed by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). Id. In light of
AEDPA's objectives, “stay and abeyance [is]
available only in limited circumstances.” Id.
at 277. Specifically, the Court said a stay is appropriate
only when (1) good cause exists for petitioner's failure
to exhaust; (2) petitioner's unexhausted claims are not
“plainly meritless” and (3) there is no
indication that petitioner engaged in “abusive
litigation tactics or intentional delay.” Id.
at 277-278; Robbins v. Carey, 481 F.3d 1143, 1149
(9th Cir. 2005). When a petitioner has met these
requirements, his interest in obtaining federal review of his
claims outweighs the competing interests in finality and
speedy resolution of federal petitions. Rhines, 544
U.S. at 278.
claims that he failed to raise the two unexhausted claims to
the California Supreme Court due to the ineffective
assistance of his appellate counsel. He notes that the two
claims were included in the appeal to the California Court of
Appeal; however, appellate counsel neglected to include the
claims in the petition for review to the California Supreme
Court. Assuming this was sufficient cause to excuse the
failure to include those claims, the Court must also
determine if the other two factors are met. The third factor
does not appear to be at issue, since there is no indication
or argument that Petitioner engaged in abusive litigation or
intentional delay. Nevertheless, the second factor is not met
because the unexhausted claims are plainly without merit or
are not cognizable.
second claim for relief, Petitioner asserts that the
inconsistent verdicts concerning the enhancements violated
the Double Jeopardy Clause. The jury found the aggravated
kidnapping circumstance true but found the lesser included
simple kidnapping circumstance not true. (LD 1 at 9.)
Petitioner argues that the not guilty finding on a lesser
included circumstance precluded a guilty finding on the
greater circumstance under double jeopardy principles. (LD 1
at 9.) The appellate court concluded that double jeopardy is
not implicated in this case and the Court agrees. The Double
Jeopardy Clause provides that no person shall “be
subject for the same offence to be twice put in jeopardy of
life or limb.” U.S. Const., Amdt. 5. “The Double
Jeopardy Clause ‘protects against a second prosecution
for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And
it protects against multiple punishments for the same
offense.'” Brown v. Ohio, 432 U.S. 161,
165 (1977) (quoting North Carolina v. Pearce, 395
U.S. 711, 717 (1969)). As noted by the appellate court,
Petitioner was not twice prosecuted for the same offense. he
was not convicted of both offenses and he was not punished
twice for the same offense. Therefore, the Double Jeopardy
Clause is inapplicable.
third claim for relief, Petitioner alleges the trial court
violated Cal. Penal Code § 1161 by failing to instruct
the jury to reconsider its verdict on the inconsistent
circumstance findings. It is well-settled that federal habeas
relief is not available to state prisoners challenging state
law. Estelle v. McGuire, 502 U.S. 62, 67 (1991)
(“We have stated many times that federal habeas corpus
relief does not lie for errors of state law); Langford v.
Day, 110 F.3d 1380, 1389 (9th Cir. 1997)
(“alleged errors in the application of state law are
not cognizable in federal habeas corpus” proceedings).
As this claim is based on a violation of state law, it is not
cognizable in this federal habeas action.
summary, because the two unexhausted claims are plainly
without merit, the Court does not find cause for a stay of
the proceedings. Therefore, the Court will recommend that the
motion be denied.