United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: GRANTING IN PART AND DENYING IN PART MOTION TO STAY
AND ABEY [ECF NO. 4]
RUBEN B. BROOKS UNITED STATES MAGISTRATE JUDGE
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
FACTUAL AND PROCEDURAL BACKGROUND
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.)
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.)
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.
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).
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.
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.
Stay Pursuant to Rhines
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.
Good cause for ...