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Griffin v. Martinez

United States District Court, E.D. California

March 29, 2018

ROBERT LEE GRIFFIN, Petitioner,
v.
JOEL D. MARTINEZ, Respondent.

         FOURTEEN-DAY OBJECTIONS DEADLINE

          FINDINGS AND RECOMMENDATIONS TO GRANT PETITIONER'S MOTION TO STAY

          Michael J. Seng, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a January 15, 2014 conviction from the Fresno County Superior Court on two counts of lewd and lascivious acts on a child and one count of sexual penetration of a child 10 years old or younger. (ECF No. 1.)

         The petition presents the following three[1] claims for relief: (1) Petitioner's due process rights were violated when the state court admitted data and images seized from Petitioner's computer and evidence of his prior misdemeanor conviction; (2) Petitioner's due process rights were violated when the state court allowed the jury to be instructed with CALCRIM No. 1193 (child sexual abuse accommodation syndrome (“CSAAS”) expert testimony may be considered in evaluating credibility of alleged victims); and (3) Petitioner's right to present a complete defense and his due process rights were violated when the state court excluded evidence of victim's prior molestation.

         Petitioner filed the instant habeas petition on August 23, 2017. (ECF No. 1.) On August 25, 2017, the Court ordered Respondent to file a response. (ECF No. 3.) On October 12, 2017, Petitioner filed a motion to stay the petition. (ECF No. 9.) In the motion, Petitioner argues that his case should be stayed pursuant to Rhines v. Weber, 544 U.S. 276 (2005) and 28 U.S.C. § 2254(e)(2)(A)(ii) because impeachment material he requested from his trial prosecutor three and a half years ago was only recently received. (ECF No. 9.) Neither the motion nor reply briefs describe the content of the material or Petitioner's efforts to exhaust the state petition. (ECF Nos. 9; 14.)

         Respondent opposes the motion, arguing Petitioner has not demonstrated good cause for a stay. Plaintiff filed his habeas petition more than thirteen months before the statute of limitations would have required him to do so. Unable to explain why he “rushed” to file, he is also unable to show good cause for a stay now.

         Concurrent with the opposition to the motion to stay, Respondent filed an answer to the petition. (ECF No. 10.) Petitioner did not file a traverse.

         On January 10, 2018, the Court ordered Petitioner to show cause why the motion to stay should not be denied for failure to identify the unexhausted claims Petitioner wishes to pursue in state court. (ECF No. 15.) Petitioner was given thirty days to respond to the order to show cause. On February 5, 2018, Petitioner responded (ECF No. 16) and declared that he had filed the following four claims in Fresno County Superior Court: (1) That the state court should accept his habeas petition because he only just received documents he had been seeking for three years; (2) Defense counsel failed to investigate the prosecution's witnesses; (3) Defense counsel failed to impeach the prosecution's witnesses with evidence of arrest records; and (4) Defense counsel failed to properly cross-examine the prosecution's witnesses for biasy7u. (Id.)

         For the reasons outlined below, the Court recommends that a stay be granted.

         I. Legal Standard

         There are two procedures available to federal habeas petitioners who wish to proceed with claims for relief. Under the Rhines procedure, a district court may stay a petitioner's “mixed petition” (containing both exhausted and unexhausted claims), while petitioner returns to state court to exhaust his unexhausted claims. Rhines v. Weber, 544 U.S. 269, 277-78 (2005); see also King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009). A stay under Rhines is appropriate only when petitioner has demonstrated good cause for failing to previously exhaust his claims in state court, and is not available if the unexhausted claims are “plainly meritless, ” or petitioner has engaged in “abusive litigation tactics or intentional delay.” Rhines, 544 U.S. at 277-78. The Kelly procedure has been described by the Ninth Circuit Court of Appeals to involve the following three-step process:

(1) petitioner amends his petition to delete any unexhausted claims, (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims, and (3) petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.

King v. Ryan, 564 F.3d at 1135 (citing Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003)).

Importantly, “the Kelly procedure . . . is not premised upon a showing of good cause.” King, 564 F.3d at 1140. However, “[a] petitioner seeking to use the Kelly procedure will be able to amend his unexhausted claims back into his federal petition once he has exhausted them only if those claims are determined to be timelyā€¯ under the Antiterrorism ...


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