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Rodriguez v. Lizarraga

United States District Court, E.D. California

July 24, 2017

JOE LIZARRAGA, Respondent.



         Petitioner is a state prisoner, proceeding pro se, with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2012 convictions for first degree burglary and for receiving stolen property. Pending before the court is petitioner's motion to hold this action in abeyance pending exhaustion of potentially dispositive issues in state court. (ECF No. 30.) For the reasons set forth below, the court recommends that the motion be denied.

         I. Background

         Petitioner filed his habeas corpus petition in this action on May 28, 2015. (ECF No. 1.) On November 18, 2016, respondent moved to dismiss the petition, claiming five of the fourteen grounds were unexhausted. (ECF No. 17.) Respondent also sought dismissal of grounds one and six because they did not raise claims cognizable on federal review. (Id.) On October 4, 2016, the undersigned issued an order and findings and recommendations recommending that (1) respondent's motion to dismiss as it pertained to ground one of the federal petition be granted and (2) respondent's motion as it pertained to ground six of the federal petition be denied. (ECF No. 27.) The court further found that because petitioner filed no post-conviction collateral challenges in state court, he only exhausted the claims raised in his petition for review filed in the California Supreme Court, which were claims one through nine of the federal petition. (Id.) Grounds ten through fourteen of the federal petition were unexhausted, so, the court directed petitioner to, if desired, file a motion for stay. (Id.) The findings and recommendations were adopted on January 18, 2017. (ECF No. 33.)

         Petitioner filed his motion for stay on December 8, 2016. (ECF No. 30.) He seeks a stay pursuant to Rhines[1] so that he may exhaust claims ten through fourteen of his federal petition. (Id.) Respondent opposes the motion, asserting that petitioner has not met all of the requirements for a Rhines stay. (ECF No. 34.) Petitioner, after seeking multiple extensions of time (ECF Nos. 36; 38), filed a reply memorandum, to which he attached a copy of a petition he alleges was filed with the Supreme Court of California on July 1, 2017. (ECF Nos. 42; 43.) The attached state court petition includes claims ten through fourteen of the federal petition. (ECF No. 43.)

         The five remaining claims that petitioner seeks to exhaust in state court are as follows:

Claim 10 - Petitioner was denied effective assistance of counsel because trial counsel failed “to bring the city lighting engineer with a ‘light meter'” to prove that witness Lauren McNeil's “flawed identification was impermissibly suggestive.” Petitioner cites Stovall v. Denno, 388 U.S. 293 (1967) and Manson v. Brathwaite, 432 U.S. 98 (1977), both of which examined whether an allegedly tainted identification violated due process. (ECF No. 1 at 11.) Petitioner also claims that defense counsel should have brought in McNeil's medical doctor to show the witness wore glasses. (ECF No. 1 at 35.)
Claim 11 - A sworn declaration by Richard Rodriguez, Jr. and the failure to find petitioner's fingerprints shows petitioner is innocent of all charges. “The March 20, 2015, Sworn Declaration by Richard Rodriguez Jr. proves that The Petitioner/Appellant was misidentified as the person seen by Lauren McNeil. The suggestive identification by this witness is false. The People's fingerprints that were taken from the storage area ‘Prove' it was not Petitioner/Appellant's Prints in that Storage area. Reporter's Transcript at page 227. (Exhibit-D)” (ECF No. 1 at 11, 35-36).
Claim 12 - Petitioner's conviction resulted from state court errors which, taken together, denied petitioner a fair trial. He cites Estelle v. McGuire, 502. U.S. 62 (1991) (ECF No. 1 at 11.). Specifically, petitioner claims the trial court violated petitioner's rights to a fair trial by allowing the prosecution to add the receiving stolen property charge, by ordering shackling, and by denying petitioner's “motions.” (ECF No. 1 at 36.) Taken together, petitioner claims, these errors created an appearance of bias in favor of the prosecution and unfairness at trial.
Claim 13 - Prosecutorial misconduct for allegedly misleading the jury about the fact that Petitioner's fingerprints were not found in the storage area, violating his rights to a “‘Constitutionally Fair' Trial under the Due Process” provisions of the United States Constitution. (ECF No. 1 at 36-37.)
Claim 14 - The prosecutor withheld evidence that a third party was involved in the burglary. (ECF No. 1 at 37-38.)

         II. Legal Standard and Analysis

         Under Rhines, a district court may stay a mixed petition if the following conditions are met: (1) “the petitioner had good cause for his failure to exhaust, ” (2) “his unexhausted claims are potentially meritorious, ” and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” 544 U.S. at 278. The Supreme Court has made clear that this option “should be available only in limited circumstances.” Id. at 277. Moreover, a stay granted pursuant to Rhines may not be indefinite; reasonable time limits must be imposed on a petitioner's return to state court. Id. at 277-78.

         “Good cause” under Rhines is not clearly defined. The Supreme Court has explained that in order to promote the Anti-terrorism and Effective Death Penalty Act's (“AEDPA”) twin goals of encouraging the finality of state judgments and reducing delays in federal habeas review, “stay and abeyance should be available only in limited circumstances.” Rhines, 544 U.S. at 277. The Ninth Circuit has provided no clear guidance beyond holding that the test is less stringent than an “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Several district courts have concluded that the standard is more generous than the showing needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408 F.Supp.2d 844, 849 (D. S.D. 2005) (applying the Supreme Court's mandate on remand). This view finds support in Pace, where the Supreme Court acknowledged that a ...

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