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Mason v. Paramo

United States District Court, S.D. California

June 6, 2017

MICHAEL BARAKA MASON, Petitioner,
v.
DANIEL PARAMO, Warden, et al., Respondents.

          ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) GRANTING IN PART MOTION TO DISMISS (ECF, 26)

          Janis L. Sammartino United States District Judge

         Presently 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.

         BACKGROUND

         Judge 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.

         LEGAL STANDARD

         Federal 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)).

         ANALYSIS

          I. Summary of the R&R Conclusion

          On May 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[1] (citing Petition 12-13).)

         On 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).)

         Judge 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[2] 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[3] 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.)

         II. Summary of Petitioner's Objections

         Petitioner 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[4] 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.)

         III. Court's Analysis

         Given Petitioner's Objections, the Court will review, de novo, whether the Court should stay the Petition pending exhaustion of ground two pursuant to Rhines.

         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.

         A. Good Cause

         The 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).

         But the 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.

         As an 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.

         The 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.

         B. Potential Merit of Petitioner's Claim

          The 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.

         As a 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 ...


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