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Putnam v. Hopper

United States District Court, E.D. California

November 15, 2017

STEPHEN E. PUTNAM, Petitioner,
v.
MARSHALL HOPPER, Chief Probation Officer, Placer County Probation Department, Respondent. [1]

          FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Petitioner is in the custody of the California Department of Corrections and Rehabilitation, and is proceeding through counsel in this petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner concedes that none of his four claims have been presented to the California Supreme Court and are therefore unexhausted. ECF No. 1, ¶ 11. He requests that this action be stayed pursuant to Rhines v. Weber, 544 U.S. 269 (2005). Id. ¶ 12. Respondent opposes a stay and asks that the petition be dismissed without prejudice as unexhausted. ECF No. 12. Petitioner filed an opposition and respondent filed a reply. ECF Nos. 22, 23. Because petitioner has failed to show good cause for his failure to exhaust his claims before filing them in this court, his motion to stay should be denied and respondent's motion to dismiss the unexhausted petition should be granted.

         I. Background

         On March 21, 2013, petitioner was convicted of pimping and pandering. Resp't's Lod. Docs. 2, 6. He was sentenced to a determinate state prison term of seven years, four months. Resp't's Lod. Doc. 2. On April 20, 2016, the state appellate court affirmed the judgment. Resp't's Lod. Doc. 3.

         On May 12, 2016, petitioner wrote to his appellate counsel, Richard R. Dudek, to find out if he would be filing an appeal in the California Supreme Court. ECF No. 22, Ex B at 31.[2] On May 19, 2016, Dudek responded by letter that he would “NOT be filing an appeal with the Supreme Court, ” that he would no longer be representing petitioner, and that petitioner was “currently without legal representation.” Resp't's Lod. Doc. 5. On May 30, 2016, petitioner's deadline for filing a petition for review in the California Supreme Court expired. See Cal. Rules of Court 8.366 & 8.500. He did not file a petition for review.

         On June 8, 2016, through attorney Timothy Woodall, petitioner filed a petition for writ of habeas corpus in the state superior court. Resp't's Lod. Doc. 6. The superior court denied the petition the following day. Id.

         On August 29, 2016, petitioner signed a pro se petition for writ of habeas corpus that was filed in the state superior court on September 30, 2016. Resp't's Lod. Doc. 7. In this petition, petitioner raised the same four claims as the instant petition. See Id. On December 13, 2016, the state superior court denied relief. Id.

         On April 20, 2017, petitioner filed his petition in this action. ECF No. 1. He concedes that his claims have not been presented to the California Supreme Court but asks that his petition be stayed because (1) appellate counsel unexpectedly abandoned him and did not provide him with copies of trial transcripts until mid-July 2016; (2) given the uncertainty in California's habeas procedures, there was no guarantee that filing a petition in the California Supreme Court would have been deemed timely and thus tolled the federal limitations period; (3) an ongoing investigation into his case may result in new evidence, requiring that he delay filing in the California Supreme Court, so as to avoid the filing of improper piecemeal habeas petitions in that court; and (4) he has filed a “protective petition” in accordance with Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). See ECF No. 22.

         II. Legal Standards

         The exhaustion of state court remedies is a prerequisite to the granting of a petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1). “Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts”). A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to consider all claims before presenting them to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986). For a California prisoner to exhaust, he must present his claims to the California Supreme Court on appeal in a petition for review or on post-conviction in a petition for a writ of habeas corpus. See Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999); Harris v. Superior Court of California, 500 F.2d 1124, 1125 (1974).

         In “limited circumstances, ” the court may stay a petition to allow a petitioner the opportunity to present his unexhausted claims to the state court. Rhines, 544 U.S. at 275-77; see also Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016) (extending the Rhines stay and abeyance procedure to federal petitions that are fully unexhausted). Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, the stay and abeyance procedure is available only when: (1) there is “good cause” for the failure to exhaust; (2) the unexhausted claims are potentially meritorious; and (3) the petitioner did not intentionally engage in dilatory litigation tactics. Rhines, 544 U.S. at 277-78. “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify [his failure to exhaust his claims in state court].” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). 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.” Pace, 544 U.S. at 416. Unless a stay is appropriate, an unexhausted petition must be dismissed. See Mena, 813 F.3d at 908.

         III. Discussion

         Petitioner offers four reasons for his failure to exhaust his federal claims in state court before presenting them to this court. Those reasons are not sufficient to justify his failure to exhaust.

         First, petitioner argues that the unexpected abandonment by his appellate counsel in May 2016, and subsequent delay in providing petitioner with copies of his voluminous trial transcripts, justifies his failure to exhaust. ECF No. 1 at 5. These excuses, however, fail to reasonably explain why petitioner could not have presented his claims to the California Supreme Court prior to commencing this action. See Hernandez v. Sullivan, 397 F.Supp.2d 1205, 1207 (C.D. Cal. 2005) (no “good cause” where “[a]ppellate counsel's alleged failure did nothing to prevent Petitioner from seeking state habeas relief for the unexhausted claims.”). By June 8, 2016, petitioner had already retained new post-conviction counsel and had filed a petition for writ of habeas corpus in the state superior court. By mid-July 2016, petitioner had personally obtained copies of his trial transcripts. ECF No. 22 at 2. And by August 29, 2016, petitioner was aware of the factual basis for each of the claims asserted in this action. See Resp't's Lod. Doc. 7 (petitioner's pro se habeas petition filed in state superior court); see also Reyes v. Soto, No. CV 15-8566, 2016 U.S. Dist. LEXIS 125901, at *17-18 (C.D. Cal. Aug. 1, 2016) (no good cause for failure to exhaust where petitioner knew factual basis for his unexhausted claims long before he filed his federal petition). Under these circumstances, petitioner was able to present his claims in a state habeas petition to the California Supreme Court, but without explanation, presented them only to the state superior court. See Meza v. Barretto, No. CV 16-05867-FMO (KES), 2017 U.S. Dist. LEXIS 27242, at *15 (C.D. Cal. Jan. 17, 2017) (no good cause for failure to exhaust where ...


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