UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
OMAR CABRERA,
Petitioner, v. RON GOODWIN, PEOPLE OF THE STATE OF CALIFORNIA,
Respondents.
Case No. 1:20-cv-01738-HBK ORDER TO SHOW CAUSE WHY SHOULD NOT BE DENIED
RESPONSE DUE IN THIRTY DAYS (Doc. No. 3)
Petitioner Omar Cabrera, a state prisoner proceeding with counsel, seeks a writ of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). Before the court is p and abeyance under Rhines. (Doc. No. 3); Rhines v. Weber, 544 U.S. 269 (2005). The court ordered respondents to respond to the motion to stay (Doc. No. 4), and respondents filed a notice of non- However, because petitioner has failed to demonstrate that he meets the requirements of Rhines, the court will provide him with notice of his options for how this case may proceed and order him to show cause why his motion to stay should not be denied.
I. BACKGROUND
Petitioner makes both exhausted and unexhausted claims for relief. (See generally Doc. No. 1). Petitioner makes the following exhausted claims: (1) the trial court erred in finding a race-
trial court erred when it admitted certain prejudicial evidence; and (3) there was insufficient 1 at 2-3). Petitioner seeks to exhaust the following unexhausted claims before the state courts: (1)
he received ineffective assistance of trial and appellate counsel; (2) the trial court imposed excessive fines and fees; and (3) the trial court erred when it denied p substitute counsel. (Doc. No. 3 at 2-3). II. APPLICABLE LAW AND ANALYSIS
a. Rhines Stay Staying a federal ve to exhaust
Rhines, 544 U.S. at 277. Therefore, Id. Under Rhines, a stay in dilatory litigation tactics. 544 U.S. at 277-78.
Blake v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Although good cause under Rhines
Jackson v. Roe, 425 F.3d 654, 661- such as unjustified ignorance Blake cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient Id Case 1:20-cv-01738-HBK Document 7 Filed 03/24/21 Page 2 of 5 without evidentiary support will not typically amount to a reasonable excuse justifying a Id. Sister courts within our circuit have required, at a minimum, a him from asserting the unexhausted claim in state court. Riner v. Crawford, 415 F. Supp. 2d 1207,
1211 (E.D. Nev. 2006); see Hernandez v. Sullivan, 397 F. Supp. 2d 1205, 1207 (C.D. Cal. 2005) show that the default resulted from an objective factor external to the petitioner which cannot fairly
Here, petitioner has not addressed the good cause requirement of Rhines in his motion to stay. (See generally court has no grounds Rhines. Further, petitioner has failed
to address the other two prongs of Rhines whether the unexhausted claims are not plainly meritless and whether petitioner engaged in dilatory litigation tactics. If petitioner wishes to proceed with a stay under Rhines, he must address all three prongs of Rhines in his response to this order to show cause. 1
b. Kelly Stay An alternative procedure for staying a case exists in the Ninth Circuit the Kelly stay. See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2002). Under Kelly, a case moves through three stages: first, the petitioner amends his petition to delete any unexhausted claims; second, the court, in its discretion, stays the amended, fully-exhausted petition, and holds it in abeyance while the petitioner has the opportunity to proceed to state court to exhaust the deleted claims; and third, once the deleted claims have been exhausted in state court, the petitioner may return to federal court and amend his federal petition, adding the newly-exhausted claims. See Kelly, 315 F.3d at 1070-71 (citing Calderon v. U.S. Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998)).
However, under Kelly, a petitioner is only be able to amend his petition with his newly exhausted claim if that claim is timely when amendment is sought. See King v. Ryan, 564 F.3d 1 that the trial court imposed excessive fines and fees is not cognizable on habeas review. See Bailey v. Hill, 599 F.3d 976, 981 (9th Cir. 2010).
1133, 1140-41 (9th Cir. 2009). Unlike filing an application for state habeas relief, filing a federal habeas claim does not toll AEDPA s statute of limitations. See Duncan v. Walker, 533 U.S. 167, 181 (2001). requirements, see 28 U.S.C. § 2244(d) 2
relate back to claims contained in the original petition that were exhausted at the time of filing. See King, 564 F.3d at 1143; Mayle v. Felix, 545 U.S. 644, 664 (2005) the same trial, conviction, or sentence does not necessarily relate back to the initial claims. See Mayle new claim must share a common core of operative facts with the claims in the
pending petition. Id.
had over four months left in his AEDPA limitations period when he filed his state habeas petition seeking review of the unexhausted claims, thus tolling the federal limitations period. Accordingly, it is possible that petitioner would be able to take advantage of a stay under Kelly by dismissing his unexhausted claims now, exhausting his claims at the state level, and returning to federal court within the remaining period of the AEDPA limitations period after the state court renders its decision on petitioner s unexhausted claims and seeking to amend his petition with the now fully exhausted claims. Failing to amend the petition to include these now exhausted claimed within the remaining period left on the AEDPA timeline could prove fatal to these claims if the newly exhausted claims do not relate back to his original claims. Upon a cursory review, it appears that the unexhausted new claims do not appear to share a common core of operative facts with the original claims, as required by Kelly. Thus, petitioner would need to amend his petition with the newly exhausted claims within the remaining time left on the AEDPA clock, which would restart after these claims are fully exhausted in the state courts.
2 Generally, federal habeas claims are timely when judgment became final by the conclusion of direct review or the expiration of the time for seeking such 2244(d)(1)(A).
c. Dismissal of Unexhausted Claims In the alternative, petitioner may choose to dismiss his unexhausted claims, proceeding with his exhausted claims only. Absent any other procedural bars, this route will ensure that at
d. Voluntary Dismissal of Petition Finally, petitioner may voluntarily dismiss his entire petition and refile the entire petition once all his claims are exhausted. As noted above, the AEDPA period within which petition must file his federal habeas petition is not yet expired and became tolled when petitioner filed his state habeas petition raising the unexhausted claims, assuming the state habeas petition was deemed properly filed at the state court level. Thus, petitioner has over four months remaining in the AEDPA limitations clock, which will not restart until the last state court renders it final decision on the exhausted claims. Further, the new filing would not be considered second or successive. See Slack v. McDaniel, 529 U.S. 473, 487 (2000).
Accordingly, it is ORDERED: Within thirty days of the date of service of this order, petitioner is ordered to inform the court whether he wishes to proceed under Rhines or under Kelly, or whether he wishes to voluntarily dismiss his unexhausted claims or his entire petition without prejudice to refiling once his claims are exhausted. If petitioner wishes to proceed with a stay under Rhines, he must show cause why such a stay should not be denied.
IT IS SO ORDERED.
Dated: March 23, 2021
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE