United States District Court, C.D. California
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE DENYING
GROUNDS ONE AND THREE (DOCKET NO. 45) AND DENYING MOTION TO
STAY (DOCKET NO. 16), AND ALTERNATIVELY DENYING NEW / OTHER
GROUNDS FOR RELIEF
HONORABLE DAVID O. CARTER, UNITED STATES DISTRICT JUDGE
to 28 U.S.C. § 636, the Court has reviewed the Petition
for Writ of Habeas Corpus by a Person in State Custody
(“Petition”) and all of the records herein,
including the October 26, 2011 Report and Recommendation of
United States Magistrate Judge which addresses Grounds One
and Three of the Petition (Docket No. 45) (“Merits
R&R”), the January 11, 2010 Order Denying
Petitioner's Motion to Stay (Docket No. 16)
(alternatively, “Stay R&R”) which the Court
has construed to be a report and recommendation of United
States Magistrate Judge in accordance with Bastidas v.
Chappell, 791 F.3d 1155, 1164 (9th Cir. 2015), and the
parties' objections thereto (Docket Nos. 47, 62, 64, 68,
71). The Court has made a de novo determination of
those portions of the Merits R&R and the Stay R&R to
which objection is made.
detailed below, the Court concurs with and accepts the
Magistrate Judge's findings and conclusions in the Merits
R&R and the Stay R&R, denies the Motion to Stay, and
overrules the parties' objections to the extent they are
inconsistent with this Order. Further, and alternative to its
concurrence with and acceptance of the Stay R&R, and
assuming the case would have progressed differently had the
Motion to Stay been granted and had petitioner's
unadjudicated claims been considered on the merits, the Court
denies such claims on the merits. Finally, the Court denies
the Petition and dismisses this action with prejudice.
December 28, 2007, petitioner Pablo Bastidas, a state
prisoner who then was proceeding with the assistance of
counsel, filed the Petition and a separate memorandum
(“Petition Memo”). Petitioner challenged his 2002
conviction and sentence in Los Angeles County Superior Court
No. BA240229 following a jury trial. The Petition originally
asserted four claims for relief: (1) petitioner was denied
his Sixth Amendment right to counsel because his trial
attorney failed to investigate and present an alibi defense
(Ground One); (2) petitioner was sentenced by the court to an
upper term without aggravating factors being considered by
the jury in violation of Cunningham v. California,
549 U.S. 270 (2007) (Ground Two); (3) the trial court failed
to instruct the jury that a witness' prior conviction
could be considered in determining the witness'
credibility (Ground Three); and (4) there was insufficient
evidence that petitioner used or discharged a firearm (Ground
Four). (Petition at 5-6). Petitioner indicated that Grounds
Two and Four had not been raised with the California Supreme
Court when the Petition was filed. (Petition at 5-6).
January 4, 2008, the Magistrate Judge ordered the parties to
brief whether the Petition was barred by the statute of
limitations. (Docket No. 4). The parties briefed the
timeliness issue and lodged multiple documents in support
thereof. (Docket Nos. 6-10).
October 2, 2008, petitioner's counsel moved to withdraw
as counsel of record. (Docket No. 11). On November 12, 2008,
the Magistrate Judge granted counsel's motion to
withdraw. (Docket No. 14).
29, 2009, petitioner filed the Motion to Stay (Docket No.
15), seeking to stay and abey this action pending his
exhaustion of an additional claim in the California courts,
i.e., a claim that his constitutional rights were
violated when the trial court erroneously “placed
unadjudicated weapon enhancements consecutive to
petitioner[']s accusatory charge after conviction of only
the charged offense [California] Penal Code [section]
667(a)(1) enhancement” (the “new claim”).
See Motion to Stay at 1. On January 11, 2010, the
Magistrate Judge issued the Order Denying Petitioner's
Motion to Stay (Docket No. 16) (since construed to be the
Stay R&R), finding that a stay was not warranted under
Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003),
cert. denied, 538 U.S. 1042 (2003), because the new
claim was not timely, or under Rhines v. Weber, 544
U.S. 269 (2005), because petitioner had not shown “good
cause” for his failure to exhaust his new claim first
in state court and again, because it was untimely.
January 11, 2010, the Magistrate Judge also issued an order
directing further briefing, requiring respondent to file an
answer addressing the merits of the Petition. (Docket No.
17). On March 10, 2010, respondent filed an application for
leave to file a motion to dismiss and a motion to dismiss the
Petition, arguing that Grounds Two and Four were unexhausted,
and lodged multiple documents. (Docket Nos. 20, 22-23). On
March 19, 2010, petitioner filed a “Notice of
Withdrawal of Second and Fourth Claim[s] from
Petition.” (Docket No. 24). In light of
petitioner's notice of withdrawal, on March 30, 2010, the
Magistrate Judge denied respondent's application for
leave to file a motion to dismiss and struck the motion to
dismiss. (Docket No. 25).
13, 2010, respondent filed an answer addressing the merits of
the two remaining claims in the Petition (Grounds One and
Three) and arguing that the Petition was time-barred. (Docket
No. 32). Respondent lodged multiple documents in support of
the answer including the Clerk's Transcript
(“CT”) and the Reporter's Transcript
(“RT”). (Docket Nos. 33, 39). On July 21, 2010,
petitioner filed a Traverse.
October 26, 2011, the Magistrate Judge issued the Merits
R&R recommending that the then remaining grounds in the
Petition - Grounds One and Three - be denied on the merits
and that this action be dismissed with prejudice. (Docket No.
45). Because petitioner's claims failed on the merits,
the Magistrate Judge declined to address whether the Petition
was time-barred. See Merits R&R at 7 n.6. On
November 7, 2011, petitioner filed objections to the Merits
R&R. (Docket No. 47). On November 30, 2011, the
previously assigned District Judge issued an order accepting
the Merits R&R, overruling the objections thereto,
denying the Petition, and dismissing the action with
prejudice. (Docket No. 48). Judgment was thereafter entered
accordingly. (Docket No. 49).
appealed to the Ninth Circuit. (Docket No. 51). On July 1,
2015, the Ninth Circuit vacated the judgment and remanded the
matter for further proceedings, finding that the Magistrate
Judge lacked authority to issue the Order Denying
Petitioner's Motion to Stay. See Bastidas v.
Chappell, 791 F.3d at 1164. The Ninth Circuit
The court should determine de novo whether a stay
was warranted with regard to the new claim at the time
Bastidas made his motion, and may consider the magistrate
judge's order as a report and recommendation, along with
any objections from the parties. If a stay was warranted, the
court should decide “[t]he pertinent question”:
“Would the case have progressed differently [regarding
that claim] had a stay been granted, and, if so, how?”
Id. (quoting Mitchell v. Valenzuela, 791
F.3d 1166, 1173-74 (9th Cir. 2015)). On July 24, 2015, the
Ninth Circuit issued the mandate. (Docket No. 58). On July
30, 2015, petitioner's appointed counsel filed a notice
of appearance for petitioner. (Docket No. 59).
August 6, 2015, the previously assigned District Judge
referred the matter to the Magistrate Judge. (Docket No. 60).
On August 14, 2015, the Magistrate Judge issued an order
deeming the Order Denying Petitioner's Motion to Stay a
report and recommendation and affording the parties an
opportunity to file objections. (Docket No. 61). On September
3, 2015, respondent filed objections to the Order Denying
Petitioner's Motion to Stay/the Stay R&R
(“Respondent's Objections”) and lodged
multiple documents. (Docket Nos. 62-63). On September 3,
2015, petitioner filed objections with attachments
(“Petitioner's Objections”). (Docket No. 64).
On September 17, 2015, petitioner filed a response to
Respondent's Objections with attachments
(“Petitioner's Response”). (Docket No. 68).
On November 16, 2015, respondent filed a reply to
Petitioner's Objections (“Respondent's
Reply”). (Docket No. 71). On April 18, 2017, petitioner
filed a notice of supplemental authority. (Docket No. 72).
The matter was thereafter reassigned to this Court. (Docket
STATE AND RELATED PROCEDURAL HISTORY
August 23, 2002, after a joint trial with co-defendant Wilmer
Alberto, a Los Angeles County Superior Court jury returned
verdicts finding petitioner guilty of four counts of robbery,
three counts of possession of a firearm by a felon, and one
count of assault with a firearm. (CT 250-54, 256-58; RT
2407-13). The jury also found true multiple firearm
enhancement allegations. (CT 250, 252-53, 256- 57; RT
2407-13). The jury acquitted petitioner of attempted murder.
(CT 255; RT 2413-14). The trial court sentenced petitioner to
a total of 55 years in state prison. (CT 277-79; RT 2708).
retained counsel, William Bartz, filed a direct appeal in
California Court of Appeal No. B163483, raising
petitioner's claims presented as Grounds Three and Four
herein. (CT 276; Lodged Docs. 11, 13). On December 17, 2003,
counsel also filed a habeas petition (“First State
Petition”) in California Court of Appeal No. B171850,
raising petitioner's claim presented as Ground One
herein. (Lodged Doc. 14). On March 22, 2004, the Court of
Appeal affirmed the judgment on direct appeal and denied the
First State Petition in a single reasoned decision. (Lodged
3, 2004, petitioner, through counsel, filed a petition for
review in California Supreme Court No. S124483, raising only
Ground Three. (Lodged Doc. 4). On June 9, 2004, the
California Supreme Court denied review. (Lodged Doc. 5).
December 4, 2006, petitioner, through counsel, filed a state
habeas petition (“Second State Petition”) in
California Supreme Court No. S148594, raising Ground One.
(Lodged Doc. 6). On June 13, 2007, the California Supreme
Court denied the Second State Petition without comment.
(Lodged Doc. 7). On June 18, 2007, Bartz stopped representing
petitioner. (Docket No. 8 at Ex. H (Bartz letter informing
petitioner that petitioner had “one year from the date
of the denial (June 13, 2007) to file in the federal district
26, 2009, petitioner, proceeding pro se,
constructively filed a state habeas petition (“Third
State Petition”) in the Los Angeles County Superior
Court, raising the new claim he sought to raise in these
proceedings, i.e., that the trial court placed
“unadjudicated” weapons enhancements after
petitioner's conviction. (Lodged Doc. 16). On August 5,
2009, the Superior Court denied the Third State Petition on
procedural grounds and on the merits. (Lodged Doc. 17). As to
the merits, the Superior Court observed: “A review of
the court file indicates that the enhancements were alleged
in the Information. A review of the verdict forms indicates
that the jury in fact deliberated and found the weapon
enhancements true.” (Lodged Doc. 17).
as noted above, petitioner filed the instant Petition with
this Court on December 28, 2007, and the Motion to Stay on
July 29, 2009.
about August 24, 2009, petitioner filed a state habeas
petition (“Fourth State Petition”) in California
Court of Appeal No. B218378, raising his new claim. (Lodged
Doc. 18). On October 16, 2009, the Court of Appeal denied the
Fourth State Petition on the merits, stating, “Our file
reflects that petitioner was charged with the firearm
enhancements, and the jury found the firearm enhancement
allegations to be true.” (Lodged Doc. 19).
November 24, 2009, petitioner constructively filed a state
habeas petition (“Fifth State Petition”) in
California Supreme Court No. S178439, raising his new claim.
(Lodged Doc. 8). On May 20, 2010, the California Supreme
Court summarily denied the Fifth State Petition with
citations to In re Robbins, 18 Cal.4th 770, 780
(1998), In re Clark, 5 Cal.4th 750 (1993), and
In re Dixon, 41 Cal. 2d 756 (1953). (Lodged Doc.
December 1, 2014, petitioner, through counsel, filed a state
habeas petition (“Sixth State Petition”) in
California Supreme Court No. S222837, raising claims asserted
herein as Grounds Two and Four. (Lodged Docs. 26-27). On
February 11, 2015, the California Supreme Court denied the
Sixth State Petition with citations to In re
Robbins, 18 Cal.4th at 780, and In re Clark, 5
Cal.4th at 767-69. (Lodged Doc. 28).
noted above, the Ninth Circuit issued its decision on appeal
in Bastidas v. Chappell on July 1, 2015, and its
mandate following petitioner's appeal on July 24, 2015.
(Docket No. 58).
Court has conducted a de novo review of the portions
of the Merits R&R and the Stay R&R to which the
parties have objected, concurs with and accepts the
Magistrate Judge's findings and conclusions therein, and
overrules the parties' objections to the extent they are
inconsistent with this Order. The Court does not further
address the Merits R&R and objections thereto herein, but
does specifically address the Stay R&R and objections
thereto below and independently denies the Motion to Stay.
Based on the Court's de novo review of the
Kelly and Rhines analysis in the Stay
R&R, the Court concludes that a recommendation to deny
petitioner's Motion to Stay was warranted at the time
petitioner made the Motion to Stay. Assuming,
arguendo, that the Petition itself was timely,
petitioner has not demonstrated that his new claim - the
exhaustion of which was the predicate for the Motion to Stay
- was timely for a Kelly stay, or that there was
good cause for his failure to exhaust the new claim and the
new claim was potentially meritorious for a Rhines
stay. Further, and alternative to its
concurrence with and acceptance of the Stay R&R and
denial of the Motion to Stay, and assuming the case would
have progressed differently had the Motion to Stay been
granted and had petitioner's unadjudicated claims been
considered on the merits, the Court denies such claims for
the reasons explained below.
Petitioner's New Claim Was (and Is) Time-Barred
Magistrate Judge explained, for petitioner to be entitled to
a Kelly stay to exhaust his unexhausted claim, his
new claim must not have been time-barred. See King v.
Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (“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 timely.”), cert. denied, 558
U.S. 887 (2009). Petitioner admits that he sought to add the
new claim after the statute of limitations had expired.
See Petitioner's Objections at 4. Petitioner
argues, however, that the new claim related back to Ground
Four of the Petition. (Id. at 5). Respondent, on the
other hand, argues that the Petition itself is untimely.
(Respondent's Objections at 2).
statute of limitations in petitioner's case began to run
on September 8, 2004 - the day after petitioner's
conviction became final. See Stay R&R at 2-3
(establishing timeline). Since petitioner had no
properly-filed state habeas petitions pending from September
8, 2004 through September 7, 2005, statutory tolling would
not render the Petition timely filed. See id. at 3-4
argues that he is entitled to equitable tolling for the time
that he was represented by Bartz because Bartz allegedly
“defrauded , misled , and abandoned him.”
(Petitioner's Response at 1-10; Docket No. 8 &
exhibits thereto). As noted above, when Bartz stopped
representing petitioner on June 18, 2007, Bartz informed
petitioner that petitioner had until June 13, 2008 to file a
federal habeas petition. See Docket No. 8 at Ex. H.
the Court's alternative disposition herein, the Court has
assumed without deciding that equitable tolling would apply
during the time that Bartz was representing petitioner
(i.e., from prior to the limitations period until
the California Supreme Court's June 13, 2007 denial of
the Second State Petition (Lodged Doc. 7)), to render the
Petition timely filed. See Van Buskirk v. Baldwin,
265 F.3d 1080, 1083 (9th Cir. 2001) (court may properly deny
petition on the merits rather than reaching complex questions
lurking in time bar of federal habeas statute), cert.
denied, 535 U.S. 950 (2002). Accordingly, in that event,
the statute of limitations would have commenced to run on
June 14, 2007 and would have expired no later than June 13,
2008. Petitioner did not file his new claim with the state