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Reeves v. Madden

United States District Court, S.D. California

January 7, 2020

DONALD LEE REEVES, III, Petitioner,
v.
RAYMOND MADDEN, Warden, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: GRANTING IN PART AND DENYING IN PART MOTION TO STAY AND ABEY [ECF NO. 4]

          HON. RUBEN B. BROOKS UNITED STATES MAGISTRATE JUDGE

         On September 30, 2019, Donald Lee Reeves, III, a state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent Raymond Madden, Warden [ECF No. 1]. Petitioner simultaneously filed a Motion to Stay and Abey, or Stay Petition and Dismiss Unexhausted Claims [ECF No. 4], with an attached Memorandum of Points and Authorities [id at 2-6] and a Declaration of Donald Lee Reeves [id Attach. #1]. For the reasons set forth herein, the Court RECOMMENDS that Petitioner's motion be GRANTED IN PART and DENIED IN PART.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In a court trial held in 2016, Petitioner was convicted of two counts of murder (counts 1 and 3), three counts of robbery (counts 2, 4, and 5), two counts of assault by means likely to produce great bodily injury (counts 6 and 7), and possession of methamphetamine (count 9). (Pet. 1-2, 155-56, 231-35, ECF No. 1.) The trial court found that special circumstance allegations of multiple murder and robbery-murder were true. (Id. at 2, 156.) Reeves was sentenced to two consecutive terms of life in prison without the possibility of parole. (Id. at 1, 156.) Petitioner appealed, raising the following six claims: ground one challenged the sufficiency of the evidence to support the conviction for the robbery in count 4; grounds two and four disputed the felony murder convictions in counts 1 and 3; grounds three and five asserted the robbery-murder special circumstance findings in counts 1 and 3 lacked evidence; and ground six alleged that two indeterminate sentences of life in prison without parole constituted cruel and unusual punishment under the California and United States Constitutions. (Id. at 2, 39-42.) The California Court of Appeal affirmed the trial court judgment on March 28, 2018. (Id. at 2, 155-76.) Petitioner filed a petition for review with the California Supreme Court raising the same six grounds; the petition was summarily denied on June 27, 2018. (Id. at 2, 131.) Reeves filed a petition for a writ of certiorari before the United States Supreme Court, which was denied on November 13, 2018. (Id. at 3, 530.) He did not seek collateral review in state court prior to filing his federal petition. (Id. at 3.)

         On September 26, 2019, Petitioner constructively filed the present Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, raising eight claims. Reeves reasserts grounds one through six from his direct appeal and adds two additional claims: ground seven alleges that the trial court erred by failing to remove his trial counsel, constructively denying him effective assistance of counsel; and ground eight contends that Petitioner's trial counsel was ineffective because he failed to investigate potential defenses. (Id. at 6-13.) Petitioner concedes that grounds seven and eight were not exhausted in state court. (Id. at 12-13.)

         Petitioner states that on the same day he constructively filed his federal petition, he filed a Petition for Writ of Habeas Corpus in San Diego Superior Court. (Mot. Stay Attach. #1 Reeves Decl. 1, ECF No. 4.) His state petition seeks relief on his two unexhausted claims, grounds seven and eight of his federal petition. (See Pet. 187-229, ECF No. 1.) At the same time he filed his federal petition, Petitioner also filed a separate Motion to Stay and Abey Petition, or Stay Petition and Dismiss Unexhausted Claims, asking the Court to stay his federal petition and hold the proceedings in abeyance to permit him to return to state court to exhaust his additional claims under the "stay and abey" procedure set forth in Rhines v. Weber. 544 U.S. 269 (2005), or to stay the case under the "withdrawal and abeyance" procedure under King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). (Mot. Stay 1, ECF No. 4.) On October 30, 2019, Respondent filed an opposition, arguing that Reeves is not entitled to a stay under Rhines because he has not shown good cause. (Opp'n 1, 3, ECF No. 8.) Respondent, however, does not oppose a stay of only the exhausted claims under Kelly v. Small. 315 F.3d 1063 (9th Cir. 2003) (overruled on other grounds by Robbins v. Carey. 481 F.3d 1143, 1149) (9th Cir. 2001). (Id.) Petitioner was provided a deadline of December 12, 2019, to file a reply, but he did not do so.

         II. LEGAL STANDARDS

         A federal court may not address a petition for writ of habeas corpus unless the petitioner has exhausted state remedies with respect to each claim raised. See 28 U.S.C.A. § 2254(b)(1)(A) (West 2006); Picard v. Connor, 404 U.S. 270, 275 (1982). Generally, to satisfy the exhaustion requirement, a petitioner must '"fairly present[]' his federal claim to the highest state court with jurisdiction to consider it," or "demonstrate[] that no state remedy remains available." Johnson v. Zemon. 88 F.3d 828, 829 (9th Cir. 1996) (citations omitted). Pursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), all federal habeas petitions are subject to a one-year statute of limitations, and claims not exhausted and presented to the federal court within the one-year period are forfeited. 28 U.S.C.A. § 2244(d)(1) (West 2006); Dixon v. Baker. 847 F.3d 714, 719 (9th Cir. 2017). A district court may not consider a "mixed" federal habeas petition containing both exhausted and unexhausted claims. Rose v. Lundy. 455 U.S. 509, 522(1982).

         Under Rhines, a district court has discretion to stay a mixed federal habeas petition while the petitioner returns to state court to exhaust any unexhausted claims without losing his right to federal habeas review due to the one-year statute of limitations. Rhines, 544 U.S. at 275-76. Once the petitioner exhausts the state court remedies for all of his claims, the district court lifts the stay and allows the petitioner to proceed in federal court on all claims. See id The "stay and abey" procedure is available only in "limited circumstances" when the following three conditions are met: (1) the petitioner demonstrates "good cause" for failing to exhaust his claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no indication that the petitioner engaged in dilatory litigation tactics. Id. at 277-78; see also Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). "When implemented, the Rhines exception eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the claims remain pending in federal court throughout." King, 564F.3d at 1140.

         A petitioner may also be granted a stay under the "withdrawal and abeyance" procedure outlined by the Ninth Circuit in Kelly, 315 F.3d at 1070-71, and King, 564 F.3d at 1135, 1140-41. The withdrawal and abeyance procedure involves three steps: (1) the petitioner amends his petition to delete any unexhausted claims; (2) he requests that the court stay the proceedings and hold the fully exhausted petition in abeyance while he returns to state court to exhaust the deleted claims; and (3) the petitioner subsequently seeks to amend his federal habeas petition to include the newly exhausted claims after exhaustion is complete. King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). Although this procedure does not require the petitioner to demonstrate good cause for his failure to timely exhaust, the newly exhausted claims must be either timely under the statute of limitations or must "relate back" to the claims in the fully exhausted federal petition. IcL at 1140-41; see also Mayle v. Felix. 545 U.S. 644, 662-64. A new claim relates back to an existing claim if the claims share a "common core of operative facts." Mayle. 545 U.S. at 664.

         III. DISCUSSION

         A. Stay Pursuant to Rhines

         In Rhines. the Supreme Court cautioned that its stay procedure must not run afoul of AEDPA's twin purposes-reducing delays in the execution of state and federal criminal sentences and encouraging petitioners to seek relief from state court in the first instance. Rhines. 544 U.S. at 276 (citations omitted). To address this concern, the "stay and abey" procedure under Rhines requires that (1) the petitioner demonstrate "good cause" for failing to exhaust his claims in state court, (2) the unexhausted claims be potentially meritorious, and (3) there be no indication that the petitioner engaged in dilatory litigation tactics. Id. at 277-78.

         1. Good cause for ...


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