1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN LEE HARVEY, No. 2:23-cv-00984-DAD-CKD (HC) 12 Petitioner, 13 v. ORDER AND 14 EDWARD BORLA, FINDINGS AND RECOMMENDATIONS 15 Respondent.1 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to

. This proceeding was referred to this court pursuant to 28

(b)(1) and Local Rule 302. 20 Currently pending before the court is petitioner’s motion for a stay and abeyance and 21 respondent’s motion to dismiss petitioner’s habeas corpus application. ECF Nos. 13, 20. For the 22 reasons discussed below, the undersigned recommends that petitioner’s motion for a stay be 23 denied and that respondent’s motion to dismiss be granted. 24 ///// 25

1 As part of the motion to dismiss, respondent moves to substitute Edward Borla, the Warden of 26 the Correctional Training Facility where petitioner is incarcerated, as the proper respondent 27 pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases. The court grants respondent’s request and orders the Clerk of Court to amend the docket to reflect Edward Borla as respondent 28 in this matter. The parties shall refer to Edward Borla as respondent in all future pleadings. 1 I. Factual and Procedural History 2 Following a jury trial, petitioner was convicted of first-degree burglary in the Lassen 3 County Superior Court. ECF No. 1 at 1-2. On June 4, 2020, he was sentenced to a determinate 4 term of 8 years in prison. ECF No. 1 at 1. His conviction was affirmed by the California Court 5 of Appeal on December 15, 2021. ECF No. 1 at 2. The California Supreme Court denied his 6 petition for review on February 23, 2022.

. 7 Petitioner filed the instant § 2254 petition on May 21, 2023 raising four claims for relief.2 8 First, petitioner contends that the trial judge had a conflict of interest. ECF No. 1 at 5. Next, 9 petitioner asserts that his right to due process was violated because there was insufficient 10 evidence to convict him because only hearsay was presented. ECF No. 1 at 7. In his third claim 11 for relief petitioner alleges that his trial attorney was ineffective for failing to subpoena relevant 12 video footage. ECF No. 1 at 8. Lastly, petitioner challenges the identity of the victim in his case. 13 Id. at 9. 14 In the habeas application, petitioner also indicates that he has not filed any state habeas 15 corpus petition containing these claims for relief. ECF No. 1 at 3. Based on a letter attached to 16 the § 2254 petition, appellate counsel did not raise the first claim for relief because there was no 17 objection by trial counsel and no basis in the record to find trial counsel was ineffective for failing 18 to do so. See ECF No. 1 at 16. 19 On August 15, 2023, this court ordered petitioner to show cause why his habeas 20 application should not be dismissed since he had not exhausted his state court remedies with 21 respect to any of his claims for relief. ECF No. 7. Petitioner was provided with the relevant legal 22 standards and was given the chance to demonstrate why a stay was appropriate in order to exhaust 23 his state court remedies. ECF No. 7. 24 II. Motion for a Stay and Abeyance 25 In compliance with the show cause order, petitioner submitted a motion for a stay and 26 abeyance pursuant to Rhines v. Weber,

(2005). ECF No. 13. Petitioner requests a 27 2 The filing date has been calculated using the prison mailbox rule. See Houston v. Lack, 487

(1988). 1 stay because his appellate counsel was ineffective in failing to raise claims that were outside of 2 the trial court record. Specifically, petitioner asserts that appellate counsel should have raised the 3 ineffectiveness of his trial lawyer as a claim for relief on direct appeal. Since this was not done, 4 petitioner needs time to file a state habeas corpus petition without violating the statute of 5 limitations governing federal habeas relief. Petitioner also emphasizes that he is pro se and does 6 not have any legal training to understand the federal statute of limitations governing habeas 7 corpus relief. He asserts these are additional reasons why a stay is appropriate. 8 By way of opposition to the stay, respondent points out that petitioner does not explain 9 how any of these asserted circumstances actually prevented him from exhausting his state court 10 remedies. ECF No. 18 at 2. Respondent argues that this court should deny the motion for a stay 11 because petitioner has not come forward with any evidence supporting these causes for failing to 12 exhaust his claims. Id. at 3 (citing Blake v. Baker,

(9th Cir. 2014). 13 III. Motion to Dismiss 14 In his motion to dismiss, respondent asserts that none of the claims in petitioner’s habeas 15 application have been previously presented to the California Supreme Court. ECF No. 20 at 2. 16 As a result, petitioner has not properly exhausted his state court remedies before filing the present 17 federal habeas petitioner as required by

(b)(1)(A). ECF No. 20 at 2. “Although 18 ground two of the federal petition and the sole claim raised in the review petition [in the 19 California Supreme Court] allege insufficient evidence claims, they do so on a different basis. 20 Petitioner argued in his state review petition that the burglary conviction was not supported by 21 sufficient evidence, specifically that [p]etitioner was motivated ‘by an abnormal or unnatural 22 sexual interest’ in the victim when he entered the inhabited dwelling with the intent to commit 23 child annoyance.” ECF No. 20 at 2; see also ECF No. 19-3 at 11-19 (Petition for Review in 24 California Supreme Court). In his pending federal habeas application, petitioner contends that the 25 evidence was insufficient to convict him of burglary because there was no fingerprint, video or 26 photographic evidence, and only hearsay was presented. ECF No. 1 at 7. For all these reasons, 27 petitioner’s habeas application should be dismissed as unexhausted. ECF No. 20 at 3. 28 ///// 1 IV. Legal Standards 2 A. Exhaustion of State Court Remedies 3 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 4 writ of habeas corpus.

(b)(1). A petitioner satisfies the exhaustion requirement 5 by providing the highest state court with a full and fair opportunity to consider each habeas claim 6 before presenting it to the federal court. Picard v. Connor,

(1971); Middleton 7 v. Cupp,

(9th Cir. 1985). The prisoner must “fairly present” both the 8 operative facts and the federal legal theory supporting his federal claim to the state's highest 9 court, “thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese,

27, 29 (2004); see Kelly v. Small,

(9th Cir. 2003), overruled on other 11 grounds by Robbins v. Carey,

(9th Cir. 2007). The United States Supreme Court 12 has held that a federal district court may not entertain a petition for habeas corpus unless the 13 petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 14

(1982) (establishing the total exhaustion rule). 15 B. Stay and Abeyance 16 The court may stay a federal habeas application if petitioner demonstrates (1) good cause 17 for the failure to previously exhaust the claims in state court, (2) the claims at issue potentially 18 have merit, and (3) petitioner has been diligent in pursuing relief. See Rhines v. Weber,

at 278; Mena v. Long,

(9th Cir. 2016) (applying the stay and abeyance 20 procedure to wholly unexhausted habeas petitions). If petitioner fails to establish any of these 21 three factors, then a Rhines stay is not appropriate.3 22 In determining what constitutes good cause sufficient for a Rhines stay, the Ninth Circuit 23 Court of Appeals has determined that a petitioner does not have to demonstrate extraordinary 24 circumstances. Jackson v. Roe,

(9th Cir. 2005). The legal standard for 25

3 The court notes that the alternative procedure for staying and abeying a federal habeas petition 26 pursuant to Kelly v. Small,

(9th Cir. 2003), only applies to habeas petitions that 27 contain exhausted as well as unexhausted claims for relief. Since petitioner’s habeas application is wholly unexhausted, a Kelly stay is not available in the present case and will not be addressed 28 herein. 1 cause to excuse a procedurally defaulted claim boils down to objective factors external to the 2 prisoner. See Murray v. Carrier,

(1986) (emphasizing that to establish cause 3 for a procedural default, a petitioner must show that “some objective factor external to the 4 defense impeded counsel’s efforts to comply with the State’s procedural rule.”). 5 V. Analysis 6 After reviewing the relevant state court record lodged in this proceeding, the undersigned 7 finds that petitioner has not properly exhausted his state court remedies with respect to any of the 8 claims raised in his federal habeas application. Indeed, petitioner acknowledges as much in his 9 habeas application when he indicated that he has not presented any of his four claims for relief on 10 direct appeal or in any state post-conviction proceeding. ECF No. 1. As a result, petitioner’s 11 habeas application is subject to dismissal without prejudice unless he can demonstrate that he is 12 entitled to a stay and abeyance pursuant to Rhines. 13 Here, petitioner contends that his direct appeal lawyer’s ineffectiveness led to his failure 14 to properly exhaust his state court remedies.4 However, he acknowledges that appellate counsel 15 indicated that his habeas claims could not be raised on direct appeal because they were outside of 16 the trial record. ECF No. 1 at 12, 16. Assuming without deciding that the ineffective assistance 17 of appellate counsel may constitute good cause for a Rhines stay, this court does not find that 18 appellate counsel was ineffective in this case.5 In California, ineffective assistance of trial 19 counsel claims must generally be raised via a state habeas corpus petition instead of direct appeal 20 because they pertain to matters outside the record of review on appeal. See People v. Salcido, 44

(2008) (emphasizing that this is particularly true when the ineffectiveness is 22

23 4 To establish ineffective assistance of counsel, petitioner must establish that counsel's performance fell below an objective standard of reasonableness, and, that but for counsel's errors, 24 the result of the proceeding would have been different. Strickland v. Washington,

(1984). 25 5 The law in the Ninth Circuit is unclear whether appellate counsel’s ineffectiveness can constitute adequate cause to support a Rhines stay. See Murphy v. Moss, No. 2:19-cv-1808- 26 JAM-KJN-P,

, at *4 & n.5 (E.D. Cal. Apr. 30, 2020), adopted by

3571503 (E.D. Cal. July 1, 2020) (stating that “[i]t is not clear whether a petitioner's claim of ineffective assistance of appellate counsel constitutes good cause.”) (collecting district court 28 cases). 1 based on trial counsel’s failure to object). This is exactly what appellate counsel explained to 2 petitioner in her letter dated August 4, 2020. ECF No. 1 at 16. Thus, appellate counsel’s 3 performance was not deficient. See Strickland,

(explaining what constitutes 4 deficient performance of counsel). This court does not find that petitioner has demonstrated good 5 cause to support a stay of these proceedings based on appellate counsel’s ineffectiveness. See 6 Garcia v. Grounds, No. CV 10-2421-JFW (RNB),

, at *5 (C.D. Cal. Oct. 18, 7 2010), adopted by

(C.D. Cal. Nov. 10, 2010) (appellate counsel's failure to 8 assert on direct appeal a claim that would have required consideration of material outside the 9 record insufficient to show good cause for a Rhines stay). 10 The remaining explanations based on petitioner’s pro se status and lack of legal education 11 do not establish good cause under Rhines because they apply to the majority of prisoners. These 12 common circumstances would run afoul of the dictate in Rhines that a stay and abeyance “should 13 be available only in limited circumstances.” Rhines,

. Every pro se prisoner who 14 filed a § 2254 petition after the conclusion of direct appeal would be able to obtain a stay and 15 abeyance utilizing this explanation. This would allow the exception to swallow the rule that state 16 court remedies should be exhausted before filing a federal habeas petition. See

2254(b). For all these reasons, the court finds that petitioner has not established good cause 18 sufficient to obtain a Rhines stay.6 The undersigned therefore recommends denying petitioner’s 19 motion for a stay. 20 VI. Plain Language Summary for Pro Se Party 21 The following information is meant to explain this order in plain English and is not 22 intended as legal advice. 23 After reviewing the record, the court finds that you have not properly exhausted your state 24 court remedies before filing the present habeas action. It is further recommended that your 25 request for a Rhines stay be denied because you have not established good cause for not 26 previously presenting your claims in state court. The undersigned is recommending that your 27 6 In the interest of judicial economy, the court finds it unnecessary to address the remaining two 28 factors for obtaining a Rhines stay. 1 habeas petition be dismissed without prejudice. This means that you may refile your federal 2 habeas petition once you fully exhaust your state court remedies.7 3 If you disagree with any of these recommendations, you have 14 days to explain why it is 4 not the correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s 5 Findings and Recommendations.” The district court judge assigned to your case will review any 6 objections and make the final decision in your case. 7 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court modify the docket to 8 reflect that Edward Borla is the proper respondent in this action. 9 IT IS FURTHER RECOMMENDED that: 10 1. Petitioner’s motion for a stay (ECF No. 13) be denied. 11 2. Respondent’s motion to dismiss (ECF No. 20) be granted. 12 3. Petitioner’s application for a writ of habeas corpus be dismissed without prejudice as 13 wholly unexhausted. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 16 after being served with these findings and recommendations, any party may file written 17 objections with the court and serve a copy on all parties. Such a document should be captioned 18 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 19 may address whether a certificate of appealability should issue in the event he files an appeal of 20 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 21 court must issue or deny a certificate of appealability when it enters a final order adverse to the 22 applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 23 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 24 debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 25 reason would find it debatable whether the petition states a valid claim of the denial of a 26

27 7 However, a one year statute of limitations applies to all federal habeas corpus petitions challenging a state court judgment. See

(d)(1). The court expresses no opinion 28 about whether a subsequently filed § 2254 petition would be timely filed under this statute. 1 || constitutional right.’” Morris v. Woodford,

(9th Cir. 2000) (quoting Slack v. 2 | McDaniel,

(2000)). Any response to the objections shall be served and filed 3 || within fourteen days after service of the objections. The parties are advised that failure to file 4 || objections within the specified time may waive the right to appeal the District Court’s order. 5 || Martinez v. Yist,

(9th Cir. 1991). 6 | Dated: July 10, 2024 / hice ANKE) flo CAROLYNK.DELANEY 4 8 UNITED STATES MAGISTRATE JUDGE 9 10 1] 12 13 14 12/harv0984.mtd.exhaust.CJIRA 15 16 17 18 19 20 21 22 23 24 25 26 27 28