United States District Court, E.D. California
RICHARD C. RODRIGUEZ, Petitioner,
JOE LIZARRAGA, Respondent.
FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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.
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.)
filed his motion for stay on December 8, 2016. (ECF No. 30.)
He seeks a stay pursuant to Rhines 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.)
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
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
Legal Standard and Analysis
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
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 ...