United States District Court, S.D. California
ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2)
GRANTING IN PART MOTION TO DISMISS (ECF, 26)
L. Sammartino United States District Judge
before the Court are: (1) Respondent Daniel Paramo's
Motion to Dismiss the Petition for Writ of Habeas Corpus as a
Mixed Petition, and Claim 2 as Unexhausted and Untimely,
(“MTD, ” ECF No. 18); (2) Magistrate Judge
Mitchell D. Dembin's Report and Recommendation
(“R&R”) advising that the Court should grant
in part Respondent's MTD, (ECF No. 26); and (3)
Petitioner's Objections to the R&R, (“R&R
Objs., ” ECF No. 27). Respondent did not file a reply
to Petitioner's Objections. After considering the
parties' arguments and the law, the Court (1)
OVERRULES Petitioner's Objections, (2)
ADOPTS the relevant portions of the R&R,
and (3) GRANTS IN PART Respondent's
Motion to Dismiss.
Dembin's R&R contains a thorough and accurate
recitation of the factual and procedural histories underlying
the instant Petition for Writ of Habeas Corpus. (See
R&R 2-4.) This Order incorporates by reference the
background as set forth therein.
Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1)
set forth a district court's duties regarding a
magistrate judge's report and recommendation. The
district court “shall make a de novo determination of
those portions of the report . . . to which objection is
made, ” and “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(c);
see also United States v. Raddatz, 447 U.S. 667,
673-76 (1980). In the absence of a timely objection, however,
“the Court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Fed.R.Civ.P. 72 advisory
committee's note (citing Campbell v. U.S. Dist.
Court, 510 F.2d 196, 206 (9th Cir. 1974)).
I. Summary of the R&R Conclusion
11, 2016 Petitioner filed a Petition for Writ of Habeas
Corpus in this district. (“Petition, ” ECF No.
1.) Petitioner challenges his conviction on two grounds: (1)
the trial court erred in admitting the preliminary hearing
testimony of Hana Jabbar at trial; and (2) Petitioner
received ineffective assistance of counsel when his attorney
failed to challenge the trial court's decision to permit
the guilty verdict to stand and the case to proceed to
sentencing when Juror 4 expressed she had reasonable doubt
after the verdict was given. (R&R 2 (citing Petition
October 25, 2016, Respondent Paramo filed a Motion to Dismiss
the Petition. (ECF Nos. 18, 19.) Respondent conceded that
ground one was exhausted and thus reviewable by this Court,
but argued that ground two was unexhausted and untimely, thus
counseling dismissal of both claims. (R&R 4 (citing ECF
No. 18, at 9).) Petitioner acknowledged that ground two was
unexhausted, but argued that the Court should stay the case
pending exhaustion of ground two of the Petition, or, in the
alternative, to dismiss only ground two. (Id.
(citing ECF No. 25, at 8).)
Dembin first concluded that the Petition was timely, (R&R
5), and next considered whether the Court should stay the
Petition pending exhaustion of ground two in state court
under either Kelly v. Small, 315 F.3d 1063 (9th Cir.
2002), abrogated on other grounds by Robbins v.
Carey, 481 F.3d 1143 (9th Cir. 2007), or Rhines v.
Weber, 544 U.S. 269 (2005). Judge Dembin first concluded
that a stay under Kelly would be futile
“because the statute of limitations already expired and
Petitioner is not entitled to toll the limitations period or
to relate his unexhausted claim back to ground one of the
Petition.” (R&R 8.) Second, Judge Dembin concluded
that a stay under Rhines would be inappropriate
because Petitioner did not demonstrate good cause for failing
to raise his unexhausted claim in state court and that
Petitioner's claim is not potentially meritorious.
(Id. at 9-15.) Without any basis for a stay, Judge
Dembin recommends that the Court partially grant
Respondent's motion and dismiss ground two of the
Petition with prejudice. (Id. at 16.)
Summary of Petitioner's Objections
solely objects to Judge Dembin's conclusion that a stay
is not warranted under Rhines. (R&R Objs. 2.)
First, Petitioner argues that Judge Dembin erred in relying
on the prejudice prong of the
Strickland standard, as applied to claims for
ineffective assistance of counsel, because it has no bearing
on the “good cause” determination under
Rhines. (Id. at 3.) Second, as to the
potential merit of Petitioner's claim, Petitioner argues
that Judge Dembin's reliance on the Strickland
prejudice standard improperly heightened the burden for
ordering a stay. (Id. at 4.)
Petitioner's Objections, the Court will review, de
novo, whether the Court should stay the Petition pending
exhaustion of ground two pursuant to Rhines.
permits a district court to stay a mixed petition (i.e., a
petition with exhausted and unexhausted claims) in its
entirety. King v. Ryan, 564 F.3d 1133, 1139-40 (9th
Cir. 2009). To stay the entire mixed petition without
dismissing unexhausted claims, the petitioner must show (A)
good cause for failing to exhaust the claims in state court
before filing the federal petition, (B) that the unexhausted
claims are not “plainly meritless, ” and (C) that
the petitioner has not engaged in “abusive litigation
tactics or intentional delay.” Rhines, 544
U.S. at 277-78; see also King, 564 F.3d at 1139.
first factor in a Rhines analysis is whether
Petitioner has demonstrated good cause for failing to raise
his unexhausted claim in state court. “There is little
authority on what constitutes good cause to excuse a
petitioner's failure to exhaust.” Blake v.
Baker, 745 F.3d 977, 980 (9th Cir. 2014); Pace v.
DiGuglielmo, 544 U.S. 408, 416-17 (2005).
Ninth Circuit has recently explained that
[t]he good cause element is the equitable component of the
Rhines test. It ensures that a stay and abeyance is
available only to those petitioners who have a legitimate
reason for failing to exhaust a claim in state court. As
such, good cause turns on whether the petitioner can set
forth a reasonable excuse, supported by sufficient evidence,
to justify that failure.
Blake, 745 F.3d at 982 (citing Pace, 544
U.S. at 416). Thus, the Blake Court held that
ineffective assistance “by post-conviction counsel can
be good cause for a Rhines stay” where a
petitioner's showing of good cause is concrete and
reasonable, not a bare allegation of ineffective assistance
of counsel. Id. at 983.
initial matter, the Court agrees with Petitioner that a
discussion of the merits of Petitioner's ineffective
assistance of counsel (“IAC”) claim should not be
considered in the “good cause” portion of the
Rhines analysis. Rather, the Court should simply
determine whether Petitioner's excuse for failing to
exhaust the claim is reasonable and supported by sufficient
evidence. See Blake, 745 F.3d at 982.
Court finds that Petitioner has demonstrated good cause under
Rhines. As background, part of Petitioner's IAC
claim is that his appellate counsel failed to raise any
issues regarding Juror 4 in his appeal. (R&R 11 (citing
ECF No. 25, at 5; Lodg. Nos. 3, 5, 7).) Specifically, Juror 4
expressed she had “reasonable doubt . . . on certain
counts” after the guilt phase and during the penalty
phase of Petitioner's trial. (Id. at 10 (citing
ECF No. 1, at 104).) After some discussion, Petitioner's
trial counsel requested that the jury return to the jury room
and reopen their deliberations or, in the alternative, a
mistrial. (Id. at 10- 11 (citing ECF No. 1, at
104-106; 157).) The trial court denied the requests.
(Id. (citing ECF No. 101, at 127-176).) While
Petitioner's trial counsel raised the issue,
Judge Dembin found that Petitioner's appellate
counsel failed to raise any issues regarding Juror 4.
(R&R 11.) Importantly for the “good cause”
analysis, Judge Dembin found that
[t]he record supports Petitioner's argument that
appellate counsel failed to raise any issues regarding Juror
4. (ECF No. 25 at 5; Lodg. Nos. 3, 5, 7). Appellate counsel
did not include this claim in the appellate brief, reply
brief or the petition for review in the California Supreme
Court, despite the fact that the Reporter's Transcript
includes approximately 65 pages on the issue. (Lodg. Nos. 3,
7; ECF No. 1 at 99-122, 127-152, 157-176). Petitioner has
also shown that he relied upon the assurances of his trial
and appellate counsel that they would raise any necessary
claims for him. (See ECF No. 1 at 13) (indicating
that Petitioner thought his attorney raised this issue in his
Petition for Review). Petitioner has made a sufficient
showing that his appellate attorney may have acted
unreasonably because he had notice of the juror claim and
failed to exhaust the claim by presenting it to the
state's highest court.
(Id. at 11-12.) After a review of the record, the
Court agrees with Judge Dembin's assessment and thus
finds that Petitioner has adequately demonstrated good cause
for failing to raise his unexhausted claim in state court
(specifically, he demonstrated that he relied on his
appellate counsel to raise such claims on his behalf).
Nothing more is needed for this consideration. Thus, while
Judge Dembin goes on to assess the merits of Petitioner's
IAC claim in his “good cause” analysis,
(id. at 12-15), and ultimately concludes that
Petitioner has not shown “good cause” as a result
of that assessment, that analysis is more appropriately
presented under the claim merit analysis. Accordingly, the
Court will consider that portion of Judge Dembin's
analysis below, infra Part III.B.
Potential Merit of Petitioner's Claim
second factor in a Rhines analysis is whether a
petitioner's claims are “plainly meritless, ”
Rhines, 544 U.S. at 277, or, stated differently, are
“potentially meritorious, ” id. at 278.
threshold matter, the Court disagrees with Petitioner's
argument that the Court cannot consider the prejudice prong
of Strickland in assessing his IAC claim. As
discussed below, prejudice is a required element of an IAC
claim, and thus the Court must consider it to determine
whether Petitioner's IAC claim has some merit. See,
e.g., Gonzalez v. Wong, 667 F.3d 965, 982 (9th
Cir. 2011) (considering the prejudice/materiality prong of a
potential Brady v. Maryland, 373 U.S. 83 (1963),
violation in the context of a Rhines merits
analysis). But Petitioner further argues that the second
Rhines consideration, whether a claim is
“plainly meritless” or “potentially
meritorious, ” is a generous standard and thus does not
require him to demonstrate that he will definitely prevail or
even that he is likely to prevail on the merits. (R&R
Objs. 4.) The Court agrees with Petitioner on this point, and
notes that this approach is consistent with the Ninth
Circuit's jurisprudence in Rhines analyses.
See, e.g., Gonzalez, 667 F.3d at 980
(“Our discussion below is only to ...