(HC) Graham v. Foss

7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA DAVONTA B. GRAHAM, No. 2:19-cv-1485-KJM-EFB P 11 Petitioner, 12 v. ORDER TAMMY FOSS, Warden, 14 Respondent.

16 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his conviction for second-degree murder and robbery with various enhancements. ECF No. 23 at 1. Petitioner alleges that the trial court violated his constitutional rights when it (1) admitted a hearsay statement made by a co-defendant and (2) failed to advise petitioner of his constitutional rights when it took his admission of a prior conviction. Id. at 5, 11. Petitioner concedes that he has not presented the first claim to the California Supreme Court. Id. at 10. However, neither party has addressed whether this case should be held in abeyance to allow petitioner to exhaust the claim. See King v. Ryan, 564 F.3d 24 1133 (9th Cir. 2009).

25 A district court may not grant a petition for a writ of habeas corpus unless the petitioner has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed to have waived the exhaustion requirement unless the state, through counsel, expressly waives the requirement. 28 U.S.C. § 2254(b)(3).

1 Exhaustion of state remedies requires that petitioners fairly present federal claims to the highest state court, either on direct appeal or through state collateral proceedings, in order to give the highest state court “the opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in state court unless he specifically indicated to that court that those claims were based on federal law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir. 2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[A] claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.”); Duncan, 513 U.S. at 365-66 (to exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.”).

15 In addition to identifying the federal basis of his claims in the state court, the petitioner must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541 17 U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). “[T]he petitioner must . . . provide the state court with the operative facts, that is, ‘all of the facts necessary to give application to the constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511 20 F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir. 1958)).

22 Where a federal habeas petitioner has failed to exhaust a claim in the state courts according to these principles, he may ask the federal court to stay its consideration of her petition while he returns to state court to complete exhaustion. Two procedures may be used in staying a petition — one provided for by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and the other by Rhines v. Weber, 544 U.S. 269 (2005). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009).

27 Under the Kelly procedure, the district court may stay a petition containing only exhausted claims and hold it in abeyance pending exhaustion of additional claims which may then be added to the petition through amendment. Kelly, 315 F.3d at 1070-71; King, 564 F.3d at 1135. If the federal petition contains both exhausted and unexhausted claims (a so-called “mixed” petition), a petitioner seeking a stay under Kelly must first dismiss the unexhausted claims from the petition and seek to add them back in through amendment after exhausting them in state court. King, 564 F.3d at 1138-39. The previously unexhausted claims, once exhausted, must be added back into the federal petition within the statute of limitations provided for by 28 U.S.C. § 2244(d)(1), however. King, 564 F.3d at 1140-41. Under that statute, a one-year limitation period for seeking federal habeas relief begins to run from the latest of the date the judgment became final on direct review, the date on which a state-created impediment to filing is removed, the date the United States Supreme Court makes a new rule retroactively applicable to cases on collateral review or the date on which the factual predicate of a claim could have been discovered through the exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal habeas petition does not toll the limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82 (2001).

15 Under Rhines, a district court may stay a mixed petition in its entirety, without requiring dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court.

17 King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the petitioner show good cause for failing to exhaust the claims in state court prior to filing the federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant to Rhines is inappropriate where the unexhausted claims are “plainly meritless” or where the petitioner has engaged in “abusive litigation tactics or intentional delay.” Id. 22 Rhines did not describe the criteria for determining whether good cause for failure to exhaust exists. The U.S. Court of Appeals for the Ninth Circuit has found that good cause does not require a showing of “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). A petitioner shows good cause by providing the court with a reasonable excuse, supported by evidence, that justifies the failure to exhaust. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). See also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A petitioner’s reasonable confusion . . . will ordinarily constitute ‘good cause’ [under Rhines]. . . .”); Dixon v. || Baker, 847 F.3d 714, 721-22 (9th Cir. 2014) (lack of counsel in state post-conviction proceedings || constitutes good cause under Rhines).

3 Because neither party has addressed the issue of staying the case under Kelly or Rhines || while petitioner exhausts his first claim, the court orders as follows: 5 1. Within 30 days from the date of service of this order, petitioner shall file a 6 supplemental brief addressing whether this case should be stayed pending exhaustion 7 of the first claim under cases discussed in this order; 8 2. Within 14 days of service of petitioner’s supplemental brief, respondent shall file a 9 response thereto; and 10 3. Within 14 days of service of respondent’s response to the supplemental brief, 11 petitioner may file a reply.

12 So ordered.

13 || Dated: March 5, 2021. tid, PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE