United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT THE COURT DENY
PETITIONER'S MOTION FOR STAY AND ABEYANCE (DOC.
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
Omar Casillas is a state prisoner who seeks to proceed with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In a separate motion filed concurrently with the
habeas petition, Petitioner moves for an order of stay and
abeyance to permit exhaustion of state court remedies.
Exhaustion of State Remedies
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);
Buffalo v. Sunn, 854 F.2d 1158, 1163 (9th
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,
365 (1995); Picard v. Connor, 404 U.S. 270, 276
(1971); Johnson v. Zenon, 88 F.3d 828, 829
(9th Cir. 1996). A federal court will find that
the highest state court was given a full and fair opportunity
to hear a claim if the petitioner has presented the highest
state court with the claim's factual and legal basis.
Duncan, 513 U.S. at 365; Kenney v.
Tamayo-Reyes, 504 U.S. 1, 8 (1992).
Grounds Alleged for Federal Habeas Relief
grounds for federal habeas relief, the petition alleges two
claims of ineffective assistance of trial counsel, one claim
of trial court error in failing to appoint counsel to
represent Petitioner in his new trial motion, and one claim
of ineffective assistance of appellate counsel. None of these
claims are alleged in specific terms. Claims one, two, and
four state only: “Ineffective assistance of [trial or
appellate] counsel, within the meaning of the 5th,
6th, and 14th Amendment[s] to the U.S.
supporting facts for each of the first three claims, the
petition refers to the opinion of the California Court of
Appeals (Exhibit B) and the Petition for Review to Exhaust
State Remedies, which Petitioner submitted to the California
Supreme Court (Exhibit C). Among other claims, these state
documents allege: (1) ineffective assistance of trial counsel
by failing to move to dismiss count four (possession of a
firearm by a felon) pursuant to California Penal Code §
1387; (2) ineffective assistance of trial counsel by failing
to object to the trial court's instruction on a lesser
included count of felony false imprisonment following
argument that the only lesser included crime instruction
would address simple false imprisonment; and (3) the trial
court's failure to appoint counsel to present
Petitioner's claims of ineffective assistance of counsel
in his new trial motion following conviction. To the extent
that Petitioner intends the three claims raised in his direct
appeal to be the first three claims in the habeas petition,
these claims have been addressed by the state court and are
exhausted for purposes of appeal.
fourth claim, alleging ineffective assistance of appellate
counsel, is set forth in Petitioner's state habeas
petition, which was filed in the Kern County Superior Court
on March 1, 2017. The claim alleges that Petitioner's
appointed appellate counsel “refused to file a
supp[l]ement[al] opening brief or/and a ‘Companion
Habeas Corpus' along with the direct appeal.” Doc.
1 at 161. Because the California Supreme Court has not yet
had an opportunity to address this claim, the claim of
ineffective assistance of appellate counsel is not exhausted.
Standards for Granting an Order of Stay and Abeyance
federal district court may not address a petition for writ of
habeas corpus unless the petitioner has exhausted state
remedies with respect to each claim raised. Rose,
455 U.S. at 515. A petition is fully exhausted when the
highest state court has had a full and fair opportunity to
consider all claims before the petitioner presents them to
the federal court. Picard, 404 U.S. at 276.
"[P]etitioners who come to federal courts with
'mixed' petitions run the risk of forever losing
their opportunity for federal review of the unexhausted
claims. Rhines v. Weber, 544 U.S. 269, 275 (2005).
district courts should stay mixed petitions only in limited
circumstances. Id. at 277. A district court may stay
a mixed petition if (1) the petitioner demonstrates good
cause for failing to have first exhausted all claims in state
court; (2) the claims potentially have merit; and (3)
petitioner has not been dilatory in pursuing the litigation.
Id. at 277-78.
alternative, a court may stay a mixed petition if (1) the
petitioner amends his petition to delete any unexhausted
claims; (2) the court stays and holds in abeyance the
amended, fully exhausted petition, allowing the petitioner to
proceed to exhaust the deleted claims in state court; and (3)
petitioner later amends his petition and reattaches the newly
exhausted claims to the original petition. Kelly v.
Small, 315 F.3d 1063, 1070-71 (9th Cir.
2003). The Kelly procedure is riskier than the
Rhines procedure since it does not protect the
petitioner's unexhausted claims from expiring during the
stay. King v. Ryan, 564 F.3d 1133, 1135
(9th Cir. 2009). Despite the risk of the
unexhausted claims becoming time-barred in the course of the
Kelly procedure, a petitioner may elect to use that
alternative since it does not require a demonstration of good
cause as is required by Rhines. King, 564
F.3d at 1140.
Petitioner's motion specifically requests that the Court
enter an order of stay and abeyance pursuant to
Rhines, the Court will analyze the motion using the
criteria set forth in Rhines.
Unexhausted Ground Four Lacks Merit
forth above, the fourth ground for habeas relief alleges
ineffective assistance of appellate counsel, based on
appellate counsel's failure (1) to prepare a companion
habeas corpus petition and (2) to file Petitioner's
supplemental opening brief. Neither portion of this claim has
No Constitutional Right to Habeas Counsel
contends that appellate counsel provided ineffective
assistance by failing to provide a companion habeas petition
in addition to the direct appeal. This claim is not a
cognizable claim in a federal habeas proceeding. Prisoners
have no federal constitutional right to appointed counsel in
collateral proceedings. Pennsylvania v. Finley, 481
U.S. 551, 555 (1987). “[T]he right to appointed counsel
extends to the first appeal of right, and no further.”
Id. In the absence of a federal constitutional
claim, the Court cannot consider this portion of
Petitioner's fourth ground for habeas relief. /// ///
Counsel's Failure to File Supplemental Brief
Procedural and Factual Background
October 14, 2014, Petitioner attempted to file a document
entitled “Appellant's Supplemental Opening
Brief” in his then-pending direct appeal to the
California Court of Appeal. Doc. 1 at 173-192. The Clerk of
Court refused filing and wrote to Petitioner:
The court has directed me to return your
“APPELLANT'S SUPPLEMENTAL OPENING BRIEF”
RECEIVED ON October 14, 2014, with this letter.
This is because you do not have either a constitutional or
statutory right to argue your case on appeal. Furthermore,
because you have appellate counsel. That attorney has the
exclusive right to appear on your behalf as long as
fundamental rights are not denied. (People v.
Mattson (1959) 51 Cal.2d 777.)
If you wish to pursue claims of ineffective assistance of
appellate counsel, your remedy is to file a petition for writ
of habeas corpus with the trial court once ...