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Casillas v. Secretary of Corrections

United States District Court, E.D. California

May 10, 2017

OMAR CASILLAS, Petitioner,
v.
SECRETARY OF CORRECTIONS, Respondent.

          FINDINGS AND RECOMMENDATION THAT THE COURT DENY PETITIONER'S MOTION FOR STAY AND ABEYANCE (DOC. 2)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. Exhaustion of State Remedies

         A 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 Cir. 1988).

         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, 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).

         II. Grounds Alleged for Federal Habeas Relief

         As 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. Constitution.”

         As 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.

         The 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.

         III. Standards for Granting an Order of Stay and Abeyance

         A 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).

         Federal 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.

         In the 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.

         Because 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.

         IV. Unexhausted Ground Four Lacks Merit

         As set 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 merit.

         A. No Constitutional Right to Habeas Counsel

         Petitioner 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. /// ///

         B. Counsel's Failure to File Supplemental Brief

         1. Procedural and Factual Background

         On 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 ...

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