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Soojian v. Lizarraga

United States District Court, E.D. California

March 20, 2017

TANNEN SOOJIAN, Petitioner,
v.
JOE A. LIZARRAGA, Respondent.

          FINDINGS AND RECOMMENDATION TO DENY PETITIONER'S MOTION TO STAY (ECF No. 36)

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         BACKGROUND

         Petitioner challenges his 2012 convictions sustained in the Fresno County Superior Court for two counts of kidnapping to commit robbery, second-degree murder, and assault with a firearm. (ECF No. 1 at 2).[1] Petitioner was sentenced to two consecutive indeterminate terms of life with the possibility of parole for the kidnapping counts, plus consecutive terms of twenty-five years to life and ten years for enhancements on these counts. People v. Soojian, No. F066280, 2014 WL 7340275, at *1 (Cal.Ct.App. Dec. 19, 2014).

         On direct appeal to the California Court of Appeal, Fifth Appellate District, Petitioner raised the following claims: (1) jurors improperly discussed and considered Petitioner's prior conviction during deliberations; (2) jurors improperly discussed and considered Petitioner's failure to testify; (3) Miranda error; (4) evidence of third-party misconduct was improperly used against Petitioner; and (5) admission of tainted eyewitness identification evidence violated due process. (LD[2] 37). On December 19, 2014, the California Court of Appeal affirmed the judgment. Soojian, 2014 WL 7340275, at *28. Petitioner raised the same five claims in his petition for review to the California Supreme Court. (LD 41). On March 11, 2015, the California Supreme Court denied the petition for review. (LD 42).

         On February 22, 2016, Petitioner filed a federal petition for writ of habeas corpus in this Court. (ECF No. 1). Therein, Petitioner lists the following claims for relief: (1) jurors improperly considering evidence not presented during trial; (2) denial of right to trial by impartial jury; (3) jurors improperly discussed and considered Petitioner's failure to testify; (4) Miranda error; (5) erroneous admission of third-party misconduct evidence; (6) prosecutorial misconduct by improperly using evidence of third-party misconduct to support an inference of guilt by association; (7) denial of Petitioner's right to presumption of innocence by various and cumulative prosecutorial errors; (8) admission of tainted eyewitness identification evidence, in violation of due process; and (9) cumulative errors. (ECF No. 1 at 3-4). On May 19, 2016, Respondent filed an answer. (ECF No. 20). On January 3, 2017, Petitioner filed the instant motion to stay the petition pending exhaustion of two claims. (ECF No. 36). Respondent filed an opposition, and Petitioner filed a reply (ECF No. 37, 38).

         II.

         DISCUSSION

         A. Exhaustion

         A petitioner in state custody who is proceeding with 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. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). If Petitioner has not sought relief in the California Supreme Court for the claims that he raises in the instant petition, the Court cannot proceed to the merits of that claim. 28 U.S.C. § 2254(b)(1).

         B. Rhines Stay

         Petitioner contends that he raises two claims that are unexhausted, and therefore requests the Court to hold the petition in abeyance pending resolution of the unexhausted claims in state court pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Under Rhines, “stay and abeyance” is available only in “limited circumstances, ” and only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally engage in dilatory litigation tactics. 544 U.S. at 277-78. Given “that a motion to stay and abey section 2254 proceedings is generally (but not always) dispositive of the unexhausted claims, ” the undersigned shall submit findings and recommendation rather than rule on the motion. Mitchell v. Valenzuela, 791 F.3d 1166, 1171, 1173-74 (9th Cir. 2015).

         In the motion to stay, Petitioner asserts that he has not exhausted claims 7 and 9 in his petition. (ECF No. 36 at 3). Petitioner briefly lists nine claims in section VI of the petition. (ECF No. 1 at 3-4). However, the memorandum of points and authorities only discusses five claims and does not provide any factual or legal support regarding claims 7 and 9.[3] (ECF No. 1-1 at 2). Respondent states that to the extent these claims have been raised in the federal petition, Respondent agrees that they are unexhausted. (ECF No. 37 at 2-3). With respect to claim 7, Petitioner asserts in the petition that he “was denied his right to presumption of innocence by various and cumulative prosecutorial errors, resulting in a seemingly shifted burden onto Petitioner to prove actual innocence.” (ECF No. 1 at 4). Claim 9 is a cumulative error claim. (Id.). Petitioner argues that there is “good cause” for his failure to exhaust due to (1) Petitioner's lack of legal training, (2) Petitioner's belief that all potential claims had been raised in state proceedings, and (3) appellate counsel's ineffective assistance of counsel. (ECF No. 36 at 6-7).

         Petitioner's lack of legal training does not constitute good cause because he was represented by counsel on direct appeal and did not file any state post-conviction collateral petitions. Additionally, Petitioner's belief that all potential claims had been raised in state proceedings does not constitute good cause. See Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (holding that a petitioner's “‘impression' that his ...


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