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Arismendez v. Baughman

United States District Court, E.D. California

January 13, 2020

ROLANDO ARISMENDEZ, Petitioner,
v.
DAVID BAUGHMAN, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY, UNITED STATES MAGISTRATE JUDGE

         Petitioner is a California state prisoner proceeding pro se in this federal habeas corpus action filed pursuant to 28 U.S.C. § 2254. On March 4, 2019, petitioner filed a motion to stay this federal habeas action as well as a motion for an extension of time to file a first amended habeas petition.[1] ECF Nos. 22-23. Respondent filed an opposition to the motion for a stay on March 27, 2019. ECF No. 24. On April 28, 2019, petitioner filed a reply to the opposition. ECF No. 25. Several days later, petitioner filed a first amended § 2254 petition along with a second motion to stay and abey these proceedings in order to exhaust additional claims in state court. For the reasons explained in greater detail below, the undersigned recommends that petitioner's motion for a stay be granted in part and denied in part.

         I. Procedural History of the Case

         The procedural history of this case demonstrates the difficulties that petitioner has had in not only completing basic court forms but, even more so, in maneuvering through the complex web of federal habeas procedures. Petitioner's initial federal habeas application was filed using the state court form, was not signed by petitioner, and indicated that it may have been intended to be filed in the Yolo County Superior Court where petitioner was convicted. ECF No. 1. Before any of these issues were addressed by the court, petitioner was provided multiple opportunities to pay the $5.00 filing fee or request in forma pauperis status to proceed in this civil action. See ECF Nos. 3, 5, 6. Eventually, petitioner chose to pay the filing fee rather than complete the in forma pauperis application. ECF No. 6.

         Following service of the federal habeas petition on respondent and a motion to dismiss based on the lack of a signature on the petition itself, the undersigned ordered petitioner to show cause whether he intended to “pursue habeas corpus relief in the Yolo County Superior Court by filing a notice of voluntary dismissal in this court; or, [whether] he intend[ed] to pursue federal habeas corpus relief by filing an amended 28 U.S.C. § 2254 petition along with a motion for a stay and abeyance.” ECF No. 13 at 4. Petitioner was not only advised that he may file a motion for a stay and abeyance, but he was also informed of the legal standards for doing so pursuant to either Rhines v. Weber, 544 U.S. 269 (1995), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).[2]ECF No. 13 at 2.

         After being granted a sua sponte extension of time to respond to the order to show cause, petitioner filed a single page motion to voluntarily dismiss his unexhausted claims. ECF No. 15. The court notes that this motion did not even identify which unexhausted claim or claims petitioner was seeking to dismiss from his federal habeas petition. ECF No. 15. This motion appears to have been filed more in an effort to comply with the court-ordered extension of time rather than a knowing abandonment of a potential claim for relief.

         On May 7, 2018 the undersigned issued Findings and Recommendations that respondent's motion to dismiss be granted without prejudice to petitioner filing an amended federal habeas application that was verified. ECF No. 17. These Findings and Recommendations emphasized that an amended federal habeas application should be filed using the court-approved form and should include petitioner's signature.[3] ECF No. 17 at 4. On June 15, 2018, the district judge assigned to this case adopted the Findings and Recommendations in full. ECF No. 18. Petitioner's federal habeas petition was dismissed without prejudice to filing an amended petition within 30 days. Id.

         Following two additional extensions of time, petitioner filed the first of his pending motions for a stay on March 4, 2019. ECF No. 22. However, by that point, there was no federal habeas petition that could be stayed since it had been dismissed without prejudice on June 15, 2018. Accordingly, the court will not address the substance of this first motion as it is moot.

         Petitioner filed a second motion for a stay and abeyance on April 29, 2019 along with a first amended federal habeas petition. ECF Nos. 26-27. In order to understand the stay and abeyance options available to petitioner, the court must first determine whether the amended federal habeas petition contains any unexhausted claims for relief. Compare Rhines v. Weber, 544 U.S. 269(1995); with Mena v. Long, 813 F.3d 907, 910-12. (9th Cir. 2016) (extending the Rhines stay and abeyance procedure to federal habeas petitions that are wholly unexhausted). Petitioner raises three claims for relief in his amended federal habeas application. First, petitioner challenges the sufficiency of the evidence to support his conviction for attempted premeditated murder. ECF No. 26 at 5. Next, petitioner asserts that the evidence is insufficient to support his conviction as an aider and abettor of the shooting. ECF No. 26 at 19. Lastly, petitioner challenges the sufficiency of the evidence supporting his conviction for being a felon in possession of ammunition. ECF No. 26 at 26. Petitioner contends that he has properly exhausted all three of these claims in state court, but is “seeking [a] stay and abeyance to exhaust other claims.” Id. at 37.

         II. Motions to Stay and Abey

         In his April 30, 2019 motion for a stay, petitioner specifically requests a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (1995). ECF No. 27 at 1. Petitioner explains that he was unable to properly exhaust three additional claims for relief due to the ineffective assistance of his appellate lawyer and because the prison where he was housed did not have Spanish language legal materials. ECF No. 27 at 1-2. As a native Spanish speaker, petitioner “just recently” was able to locate a bilingual inmate to assist him in litigating his pending federal habeas petition. ECF No. 27 at 3. Petitioner seeks a stay in order to exhaust: 1) ineffective assistance of trial/appellate counsel claims for failing to “properly investigate, object and preserve” issues in trial and at sentencing; 2) a sentencing challenge based on an intervening change in state law that has retroactive effect; and, 3) the admission of gang expert testimony in violation of the confrontation clause. Id. at 4-6. Petitioner later specifies that his trial counsel failed to object to the use of uncorroborated accomplice testimony. ECF No. 27 at 10.

         Also attached to the motion is a declaration from petitioner's new jailhouse lawyer. ECF No. 27 at 20-28. This declaration indicates that he met petitioner in late February 2019 and agreed to assist him in this federal habeas case because petitioner has a “low IQ and grade point average” in addition to his inability to read and write English. ECF No. 27 at 21-23. According to the jailhouse lawyer, CSP-Sacramento does not have Spanish language legal materials in the prison library or on the Law Library Electronic Delivery System (LLEDS). ECF No. 27 at 23.

         Although no opposition was filed to petitioner's second motion for a stay, the court reviewed respondent's opposition filed on March 27, 2019. ECF No. 24. In it, respondent argues that petitioner cannot demonstrate any unexhausted claim has merit because petitioner had yet to file any amended habeas petition as ordered by the court. ECF No. 24 at 1-2. However, this ignores the procedural history of this case including the December 4, 2017 order to show cause which describes the unexhausted confrontation clause challenge included in petitioner's original mixed habeas petition. See ECF No. 13 (OSC); ECF No. 22 (motion for stay describing confrontation clause challenge that appellate counsel failed to include). Additionally, the court notes that respondent had the opportunity to oppose petitioner's second motion for a stay that was filed after his first amended § 2254 petition, but chose not to do so.

         III. ...


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