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Yagao v. Weaver

United States District Court, S.D. California

July 7, 2017

MACJHAY YAGAO, Petitioner,
v.
JOHN WEAVER, Warden, Respondent.

          REPORT AND RECOMMENDATION FOR ORDER: (1) DENYING MOTION FOR STAY AND ABEYANCE [ECF No. 34]; and (2) DENYING FIRST AMENDED PETITION FOR WRIT OF HABEAS CORPUS [ECF No. 6]

          Hon. Jill L. Burkhardt United States Magistrate Judge

         This Report and Recommendation is submitted to United States District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule HC.2 of the United States District Court for the Southern District of California.

         I. INTRODUCTION

         Before the Court is the first amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 of Macjhay Yagao. (ECF No. 6.) Petitioner challenges his March 25, 2014 San Diego County Superior Court conviction for the transportation of more than 28.5 grams of marijuana in violation of California Health and Safety Code § 11360(a). (Id.)

         Also before the Court is Petitioner's motion for a stay and abeyance. (ECF No. 34.) Petitioner requests that this Court stay and hold in abeyance his federal habeas corpus petition pending the exhaustion of his state court remedies. (Id.)

         II. PROCEDURAL HISTORY

         Petitioner is a citizen of the Philippines. (ECF No. 6 at 14, 35.) He has been a Legal Permanent Resident of the United States since 1995. (Id.)

         On February 10, 2014, the San Diego County District Attorney filed a complaint in the San Diego County Superior Court charging Petitioner with one count of transportation of more than 28.5 grams of marijuana in violation of California Health and Safety Code § 11360(a) (count one), one count of possession of marijuana for sale in violation of California Health and Safety Code § 11359 (count two), and one count of driving with suspended driving privileges in violation of California Vehicle Code § 14601(a) (count three). (ECF No. 20-5 at 38-40.)[1]

         On March 25, 2014, Petitioner, represented by attorney Jill Kovaly, pleaded guilty by way of a written plea agreement to count one. (ECF No. 6 at 94-96.) The prosecution, in exchange, agreed to dismiss counts two and three, to not oppose local time, and to allow defendant alternatives to custody, if available. (Id. at 94.)

         Petitioner was scheduled for sentencing on May 5, 2014 (see Id. at 78); however, his sentencing hearing was continued to June 2, 2014, when he stated that he wished to file a motion to withdraw his guilty plea (see Id. at 80-84). The record reflects that Petitioner did not file a motion to withdraw his plea by the court-imposed deadline of June 2, 2014. (See Id. at 86-91.) The court sentenced Petitioner in accordance with his plea agreement to 180 days in work furlough and three years of formal probation. (Id. at 89-91.) As a result of his conviction, on October 3, 2014, Petitioner was placed in immigration removal proceedings. (Id. at 33-35.) At the time Petitioner filed his federal habeas petition, he was in the custody of Immigration and Customs Enforcement (“ICE”). (Id. at 14.)

         On January 6, 2015, Petitioner filed a petition for a writ of habeas corpus in the San Diego County Superior Court in Case No. HC21871. (ECF No. 20-2.) In the petition, Petitioner contended that attorney Jill Kovaly provided ineffective assistance during pretrial proceedings, during plea negotiations, and at the plea and sentencing hearings, resulting in the violation of Petitioner's federal constitutional rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Id. at 2-3.) Specifically, Petitioner contended that his trial counsel: (1) failed to investigate the immigration consequences of his guilty plea; (2) failed to advise him of the adverse immigration consequences of his guilty plea; (3) failed to negotiate a plea agreement that would not trigger immigration removal proceedings; and (4) coerced him into entering a guilty plea. (Id. at 6-9.) In addition, Petitioner contended that his constitutional rights were violated because his guilty plea was not entered knowingly, intelligently, freely, or voluntarily. (Id. at 3-4.) On May 21, 2015, the San Diego County Superior Court denied the petition on the merits. (ECF No. 20-4.)

         Petitioner filed a subsequent petition for writ of habeas corpus in the California Court of Appeal on August 25, 2015, in Case No. D068709. (ECF No. 20-5.) Petitioner raised the same claims in this petition as he did in his petition before the San Diego County Superior Court. (Id. at 8-15.) In addition, he asserted that he received ineffective assistance of counsel because his trial counsel failed to investigate all of the possible defenses to his guilty plea. (Id. at 15-17, 21.) Furthermore, Petitioner contended his constitutional rights were violated because the trial court failed to conduct an on-the-record colloquy with Petitioner in order to validate his written waiver of his right to a jury trial. (Id. at 20.) On August 27, 2015, the California Court of Appeal denied the petition in a reasoned decision on the grounds that Petitioner's claims were both procedurally barred and meritless. (ECF No. 20-6.)

         Petitioner then filed a petition for writ of habeas corpus in the California Supreme Court on September 8, 2015, in Case No. S229109. (ECF No. 20-7.) Petitioner raised the same claims in this petition as he did in the petition before the California Court of Appeal. (ECF No. 20-7 at 13-27.) The California Supreme Court denied the petition without comment on October 14, 2015. (ECF No. 20-8.)

         On November 12, 2015, Petitioner submitted a petition for writ of habeas corpus to this Court. (ECF No. 1.) Petitioner subsequently filed a first amended petition for writ of habeas corpus on December 17, 2015. (ECF No. 6.) On March 29, 2016, Petitioner filed a document entitled, “Supplemental Brief in Support of Habeas Corpus.” (ECF No. 16.) The Court notes that this filing is not properly before the Court, as Petitioner had already amended his pleading once as a matter of course and Federal Rule of Civil Procedure 15 requires parties to seek leave of Court prior to amending their pleadings further. See Fed. R. Civ. P. 15(a)(2); see also 28 U.S.C. § 2242 (providing that habeas petitions “may be amended or supplemented as provided in the rules of procedure applicable to civil actions”); Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 986 n.6 (9th Cir. 1998) (“Rule 15(a) applies to habeas corpus actions with the same force that it applies to garden-variety civil cases.”). However, because Petitioner is proceeding pro se and because the Court “must remain guided by ‘the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings and technicalities, '” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)), the Court considers Petitioner's Supplemental Brief in Support of Habeas Corpus (ECF No. 16) as part and parcel of the First Amended Petition.

         Respondent filed an answer to the Petition on May 2, 2016. (ECF No. 19.) Petitioner was given until July 30, 2016 to file a traverse (ECF No. 33); however, Petitioner did not file one. Instead, Petitioner filed a document entitled “Amended Supplemental Brief & Prayer for Relief” on June 13, 2016. (ECF No. 29.) As this filing was made within the time limitation provided for Petitioner to file a traverse, the Court treats it as such.

         III. SCOPE OF REVIEW

         Section 2254 of Title 28 of the United States Code provides the scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in [sic] behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). In addition, federal habeas corpus claims are subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2254(d). See Lindh v. Murphy, 521 U.S. 320, 326-27 (1997) (holding that federal courts reviewing any habeas petition filed in federal court after the April 24, 1996 enactment of AEDPA will apply its provisions). Under AEDPA, a petitioner must overcome a high threshold to obtain relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 100 (2011).

         For purposes of federal habeas corpus review under § 2254(d)(1), “clearly established Federal law” means “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). The term refers to the holdings, as opposed to the dicta, of Supreme Court decisions. Id. at 71 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).

         A federal habeas court may grant relief under the “contrary to” clause of § 2254(d)(1) if the state court applied a rule different from the governing law set forth in Supreme Court cases or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the “unreasonable application” clause of § 2254(d)(1) if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Habeas corpus relief cannot be granted under § 2254(d)(1) “so long as ‘fairminded jurists could disagree'” on whether the state court decision is inconsistent with clearly established federal law. Harrington, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         To grant relief under § 2254(d)(2)'s “unreasonable determination of the facts” standard, a petitioner must demonstrate that the factual findings upon which the state court's adjudication of his claims rest, assuming it rests upon a determination of the facts, are objectively reasonable. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

         Where there is no reasoned decision from the state's highest court, the federal habeas court “looks through” to the underlying appellate court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991); see also Harrington, 562 U.S. at 99-100 (holding that an unexplained denial of a claim by the California Supreme Court is an adjudication on the merits of the claim and is entitled to deference unless “there is reason to think some other explanation for the state court's decision is more likely”).

         IV. DISCUSSION

         A. Motion for Stay and Abeyance

         Petitioner presents a mixed federal habeas petition that contains the following two unexhausted claims: (1) Petitioner received ineffective assistance of counsel when his trial counsel failed to file a motion to suppress certain evidence found by the arresting officers (ECF No. 6 at 26-27); and (2) the trial court failed to conduct a detailed inquiry into whether Petitioner's guilty plea was the product of coercion (id. at 9, 25). Petitioner has filed a motion for a stay and abeyance of his federal habeas corpus petition so that he may return to the state courts to exhaust his state judicial remedies. (ECF No. 34.) Petitioner argues that a recently enacted California statute, California Penal Code § 1473.7, [2] and the recent passage of California Proposition 64[3] “provide[] the Petitioner the opportunity to seek relief from the State Courts.” (Id. at 1-2.) Petitioner believes that “due to his opportunities under 1473.7 and the passage of prop. 64, his state remedies have not been exhausted.” (Id. at 3.)

         Generally, a habeas petition brought under 28 U.S.C. § 2254 may “not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1). This exhaustion requirement exists as a matter of federal-state comity and assures the state courts of the “initial ‘opportunity to pass upon and correct' alleged violations of its prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (quoting Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). To exhaust state judicial remedies, a federal habeas petitioner must present the highest state court available with a fair opportunity to rule on the merits of every issue raised in his federal habeas petition. See 28 U.S.C. § 2254(b), (c); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Thus, in California, petitioners are required to exhaust their habeas claims in a petition to the California Supreme Court. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) (applying O'Sullivan to California).

         Over thirty years ago, the United States Supreme Court interpreted the exhaustion requirement to require district courts to dismiss federal habeas petitions that contained even one unexhausted claim. Rose v. Lundy, 455 U.S. 509, 510 (1982). However, Lundy was decided at a time when there was no statute of limitations on filing federal habeas petitions, and petitioners could return to federal court after exhausting their unexhausted claims to “present their perfected petitions with relative ease.” Mena v. Long, 813 F.3d 907, 909 (9th Cir. 2016) (quoting Doe v. Jones, 762 F.3d 1174, 1177 (10th Cir. 2014)). After the AEDPA established a one-year statute of limitations for federal habeas petitions, petitioners who brought unexhausted claims to federal court faced the possibility that they would have insufficient time to exhaust those claims in state court and then return to federal court. Id. The Supreme Court confronted this issue in Rhines v. Weber, where it held that under certain circumstances, district courts may stay mixed federal habeas petitions-those containing both exhausted and unexhausted claims-to allow petitioners to present their unexhausted claims to the state courts without losing their place in federal court. Id. (citing Rhines, 544 U.S. at 275-77).

         Here, Petitioner requests that this Court stay his federal habeas petition so that he may return to the California state courts to resolve the issue that he “would not have plead [sic] guilty again to H&S § 11360(a) if he was advised otherwise and correctly” about the immigration consequences of his guilty plea. (ECF No. 34 at 1-2.) However, this is not one of Petitioner's unexhausted claims. On the contrary, Petitioner presented the California Supreme Court with a fair opportunity to rule on the merits of this claim when he included it in the habeas petition that he filed with that Court in September 2015. (See ECF No. 20-7 at 18-22, 26-27.) Thus, this claim is fully exhausted.

         As discussed above, the purpose of the stay and abeyance procedure is to provide petitioners the chance to exhaust any unexhausted claims contained in their federal habeas petitions without losing the opportunity for subsequent federal review of the claims. See Mena, 813 F.3d at 909-10. The stay and abeyance procedure does not provide federal habeas petitioners the opportunity to relitigate exhausted claims in state court. Nor does California Penal Code § 1473.7 or California Proposition 64 create an opportunity for a federal habeas petitioner to return to state court to relitigate exhausted claims. Thus, because Petitioner exhausted his state judicial remedies with respect to his claim that he would not have pleaded guilty if he had been advised differently about the consequences of his plea, this claim provides no basis to stay and hold in abeyance Petitioner's federal habeas petition.

         In addition, the Court, upon its own review of Petitioner's federal habeas petition, concludes that there are no other circumstances that would warrant a stay of Petitioner's federal habeas petition. The Supreme Court held in Rhines that a stay and abeyance of a mixed habeas petition “should be available only in limited circumstances, ” where a petitioner demonstrates good cause for his failure to exhaust his unexhausted claims in state court, where the petitioner's unexhausted claims are not plainly meritless, and where the petitioner has not engaged in abusive litigation tactics. Rhines, 544 U.S. at 277-78. Again, Petitioner presents the following two unexhausted claims in his federal habeas petition: (1) Petitioner received ineffective assistance of counsel when his trial counsel failed to file a motion to suppress certain evidence found by the arresting officers (ECF No. 6 at 26-27); and (2) the trial court failed to conduct a detailed inquiry into whether Petitioner's guilty plea was the product of coercion (id. at 9, 25). However, as addressed more fully below, Petitioner fails to demonstrate that the limited circumstances under which a stay and abeyance of a mixed federal habeas petition would be appropriate are present in this case.

         1. Good Cause

         The good cause element is the equitable factor of the Rhines test, and it ensures that a stay and abeyance is available only to those petitioners who have a legitimate reason for failing to exhaust a habeas claim in state court. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “The caselaw concerning what constitutes ‘good cause' under Rhines has not been developed in great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017) (citing Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good cause to excuse a petitioner's failure to exhaust.”)). The Supreme Court has addressed the issue only once, when it noted that a “petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause' for him to file in federal court.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)). The Ninth Circuit has held that the Rhines good cause standard does not require a showing of “extraordinary circumstances, ” but a petitioner must do more than simply assert that he was “under the impression” that his claim was exhausted. Id. (citing Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005); Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)). A bald assertion cannot amount to a showing of good cause, but a reasonable excuse, supported by evidence to justify a petitioner's failure to exhaust, will. Blake, 745 F.3d at 982.

         Petitioner argues that he has not fully exhausted his state judicial remedies “due to his opportunities under 1473.7 and the passage of prop. 64.” (ECF No. 34 at 3.) He contends that even with “due diligence, [he] could not have learned about Penal Code 1473.7 and its remedial effects to his conviction.” (Id.) This explanation fails to set forth good cause for Petitioner's failure to exhaust his state judicial remedies with respect to his two unexhausted claims. Substantively, Petitioner's two unexhausted claims are not impacted by either California Penal Code § 1473.7 and Proposition 64. And, contrary to what may be Petitioner's belief, § 1473.7 and Proposition 64 did not create a new excuse for a federal habeas petitioner's failure to exhaust his state court remedies.

         In addition, Petitioner asserts that he failed to fully exhaust his habeas claims in state court because he was not informed by his post-conviction counsel, Jamahl C. Kersey and Alex A. Kannan, that he was required to move to withdraw his guilty plea and obtain a certificate of probable cause before challenging the validity of his guilty plea on collateral review. (ECF No. 34 at 2.) Petitioner asserts that he did not learn about these necessary state law procedural requirements until the habeas claims that he filed with the California Court of Appeal were denied as procedurally barred. (Id.) In support of this argument, Petitioner attaches to his motion the transcript of a January 21, 2015 hearing before the San Diego County Superior Court at which attorney Alex Kannan appeared. (See Id. at 25.) At the hearing, Mr. Kannan stated, “Mr. Kersey and I believe this is the better avenue for Mr. Yagao than a 1018 motion to withdraw a guilty plea. We find that the grounds Mr. Yagao is alleging are better suited for a habeas corpus petition.” (Id. at 25.)

         While the Ninth Circuit has held that ineffective assistance of counsel by post-conviction counsel can be good cause for a Rhines stay, see Blake, 745 F.3d at 983-84, this Court is not persuaded that, in this case, the alleged inadequacy of Petitioner's post-conviction counsel establishes a reasonable excuse for Petitioner's failure to properly exhaust his two unexhausted claims. Despite Petitioner's learning from the California Court of Appeal's decision that his habeas claims were procedurally barred, Petitioner nonetheless filed a subsequent habeas petition with the California Supreme Court. (See ECF No. 20-7.) Petitioner fails to show how his post-conviction counsel's advice to collaterally attack his guilty plea without first moving to withdraw his plea provides a reasonable excuse for his failure to specifically include his two unexhausted claims in the habeas petition that he filed with the California Supreme Court.

         For the reasons above, the Court finds that neither of Petitioner's explanations sets forth good cause for his failure to exhaust his state judicial remedies with respect to his two unexhausted claims. While a failure to set forth good cause is sufficient to deny a motion for a stay and abeyance under the Rhines test, the Court also recommends that Petitioner's motion be denied on the basis that Petitioner's unexhausted claims plainly lack merit.[4]

         2. Merits of Petitioner's Unexhausted Claims

         The Ninth Circuit recently adopted the following standard with respect to whether a claim raised on federal habeas review is plainly meritless:

In determining whether a claim is “plainly meritless, ” principles of comity and federalism demand that the federal court refrain from ruling on the merits of the claim unless “it is perfectly clear that the petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). “A contrary rule would deprive state courts of the opportunity to address a colorable federal claim in the first instance and grant relief if they ...

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