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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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10 LESLIE JENEA CHANCE, Case No. 1:24-cv-00709-JLT-SAB-HC

11 Petitioner, ORDER VACATING NOVEMBER 5, 2024

FINDINGS AND RECOMMENDATION

12 v.

AMENDED FINDINGS AND

13 A. DE LA CRUZ, RECOMMENDATION TO DENY

RESPONDENT’S MOTION TO DISMISS

14 Respondent. AND GRANT PETITIONER’S MOTION TO

STAY

15 (ECF Nos. 9, 12) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 Petitioner was convicted in the Kern County Superior Court of first-degree murder and 22 sentenced to an imprisonment term of fifty years to life. (ECF No. 1 at 11; LD2 1.) On January 23 27, 2023, the California Court of Appeal, Fifth Appellate District affirmed the judgment. (LD 2.) 24 On April 12, 2024, the California Supreme Court denied the petition for review. (LDs 3, 4.) 25 Petitioner did not file any state post-conviction collateral actions in the California Supreme 26 Court. (ECF No. 9 at 1.) 27 1 Page numbers refer to the ECF pagination stamped at the top of the page. 1 On June 18, 2024, Petitioner filed a federal petition for writ of habeas corpus, raising the 2 following claims for relief: (1) prosecution’s failure to disclose evidence favorable to defense; 3 (2) ineffective assistance of counsel; (3) improperly suggestive witness identification procedures; 4 and (4) sufficiency of the evidence. (ECF No. 1.) On August 22, 2024, Respondent filed a 5 motion to dismiss the petition because the sufficiency of the evidence claim is unexhausted. 6 (ECF No. 9.) No opposition or statement of non-opposition had been filed, and on November 5, 7 2024, the Court issued findings and recommendation to grant Respondent’s motion to dismiss in 8 part and dismiss without prejudice the sufficiency of the evidence claim. (ECF No. 12.) 9 On December 3, 2024, Petitioner filed a notice wherein she informed the Court that she 10 did not receive the motion to dismiss. (ECF No. 13.) Accordingly, the Court mailed Petitioner a 11 copy of the motion to dismiss and set a briefing schedule. (ECF No. 14.) On December 26, 2024, 12 Petitioner filed her response to the motion to dismiss. (ECF No.15.) 13 II. 14 DISCUSSION 15 A. Exhaustion 16 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 17 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 18 on comity to the state court and gives the state court the initial opportunity to correct the state’s 19 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 20 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 21 providing the highest state court with a full and fair opportunity to consider each claim before 22 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 23 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 24 “[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must 25 include reference to a specific federal constitutional guarantee, as well as a statement of the facts 26 that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162–63 (1996). Accord 27 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (“Fair presentation requires that the 1 on which his claim is based so that the state courts have a “fair opportunity” to apply controlling 2 legal principles to the facts bearing upon his constitutional claim.’” (citations omitted)). “Mere 3 ‘general appeals to broad constitutional principles, such as due process, equal protection, and the 4 right to a fair trial,’ do not establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th 5 Cir. 2005) (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). 6 In the motion to dismiss, Respondent asserts that Petitioner’s sole filing in the California 7 Supreme Court—a petition for review—did not raise a sufficiency of the evidence claim. (ECF 8 No. 9 at 2.) Respondent has lodged state court records that demonstrate Petitioner only presented 9 her claims regarding the prosecution’s failure to disclose evidence favorable to defense, 10 ineffective assistance of counsel, and improperly suggestive witness identification procedures. 11 (LD 3.) Petitioner states that she thought she had exhausted state judicial remedies by submitting 12 a state habeas petition on March 24, 2024, that was denied on April 22, 2024. (ECF No. 13 at 2.) 13 Petitioner does not provide a copy of the state petition, and it is unclear to which state court the 14 petition was submitted. However, Petitioner later informs the Court that she “plan[s] to submit 15 Ground Four, claiming insufficient evidence to the California Supreme Court,” which suggests 16 that the state habeas petition was not filed in the California Supreme Court. (ECF No. 15.) Given 17 that it appears Petitioner has not sought relief in the California Supreme Court with respect to her 18 sufficiency of the evidence claim, this Court cannot proceed to the merits of said claim. 28 19 U.S.C. § 2254(b)(1). 20 B. “Mixed” Petition 21 “Federal courts may not adjudicate mixed habeas petitions, that is, those containing both 22 exhausted and unexhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). 23 The Court must dismiss without prejudice a mixed petition containing both exhausted and 24 unexhausted claims to give a petitioner an opportunity to exhaust the claims if he can do so. 25 Lundy, 455 U.S. at 522. However, a petitioner may, at his option, withdraw the unexhausted 26 claims and go forward with the exhausted claims. See Anthony v. Cambra, 236 F.3d 568, 574 27 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with the opportunity to amend 1 petitioner may also move to withdraw the entire petition and return to federal court when he has 2 finally exhausted his state court remedies. Additionally, a petitioner may also move to stay and 3 hold in abeyance the petition while he exhausts his claims in state court. See Rhines v. Weber, 4 544 U.S. 269, 277 (2005); Kelly v. Small, 315 F.3d 1063, 1070–71 (9th Cir. 2002). 5 Respondent contends that “[u]nless Petitioner establishes that a stay is appropriate, the 6 petition must be dismissed.” (ECF No. 9 at 2.) Petitioner asks that the Court not dismiss her case 7 and that she plans to submit her unexhausted sufficiency of the evidence claim to the California 8 Supreme Court. (ECF No. 15.) The Court construes this language as a request to stay the instant 9 proceeding while Petitioner exhausts her state judicial remedies. See Bernhardt v. Los Angeles 10 County, 339 F.3d 920, 925 (9th Cir. 2003) (courts have a duty to construe pro se pleadings and 11 motions liberally). 12 C. Stay and Abeyance 13 Under Rhines v. Weber, 544 U.S. 269 (2005), “stay and abeyance” is available only in 14 limited circumstances, and only when: (1) there is “good cause” for the failure to exhaust; (2) the 15 unexhausted claims are not “plainly meritless”; and (3) the petitioner did not intentionally 16 engage in dilatory litigation tactics. 544 U.S. at 277–78. “The caselaw concerning what 17 constitutes ‘good cause’ under Rhines has not been developed in great detail.” Dixon v. Baker, 18 847 F.3d 714, 720 (9th Cir. 2017). “The Supreme Court has addressed the issue only once, when 19 it noted that a ‘petitioner’s reasonable confusion about whether a state filing would be timely 20 will ordinarily constitute ‘good cause’ for him to file in federal court.’” Blake v. Baker, 745 F.3d 21 977, 980 (9th Cir. 2014) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)).3 The Ninth 22 Circuit has “held that good cause under Rhines does not require a showing of ‘extraordinary 23 circumstances,’ Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005), but that a petitioner must 24 do more than simply assert that he was ‘under the impression’ that his claim was exhausted, 25 Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008).” Dixon, 847 F.3d at 720.

26 3 In Pace, the Supreme Court noted that a solution to the “predicament” of “a ‘petitioner trying in good faith to exhaust state remedies . . . litigat[ing] in state court for years only to find out at the end that he was never “properly 27 filed,”’ and thus that his federal habeas petition is time barred” is “filing a ‘protective’ petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” 544 1 “A petitioner who is without counsel in state postconviction proceedings cannot be 2 expected to understand the technical requirements of exhaustion and should not be denied the 3 opportunity to exhaust a potentially meritorious claim simply because he lacked counsel.” Dixon, 4 847 F.3d at 720. Thus, the Ninth Circuit has found that for federal habeas petitioners who 5 conducted their state post-conviction proceedings pro se, “the first element of the Rhines test can 6 easily be established to the extent that they were without counsel.” Dixon, 847 F.3d at 722. As it 7 appears that Petitioner has been conducting her state post-conviction proceedings pro se, (ECF 8 Nos. 13, 15), the Court finds that Petitioner has satisfied Rhines’s good cause requirement. 9 “A federal habeas petitioner [also] must establish that at least one of his unexhausted 10 claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon, 847 F.3d at 722. 11 “In determining whether a claim is ‘plainly meritless,’ principles of comity and federalism 12 demand that the federal court refrain from ruling on the merits of the claim unless ‘it is perfectly 13 clear that the petitioner has no hope of prevailing.’” Id. (quoting Cassett v. Stewart, 406 F.3d 14 614, 624 (9th Cir. 2005)). 15 With regard to the unexhausted claim, the petition states: “Prosecutors case was so 16 lacking that it should not have been submitted to the jury. The suggestive interviews, discovery 17 violations, and improper presentation of excluded evidence verify that the ruling was lacking in 18 justification.” (ECF No. 1 at 10.) The Supreme Court has held that when reviewing a sufficiency 19 of the evidence claim, a court must determine whether, viewing the evidence and the inferences 20 to be drawn from it in the light most favorable to the prosecution, any rational trier of fact could 21 find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 22 307, 319 (1979). Here, Petitioner has not provided sufficient factual allegations in the petition to 23 demonstrate that her unexhausted sufficiency of the evidence claim is potentially meritorious. 24 For example, Petitioner does not provide any factual allegations regarding what excluded 25 evidence was improperly presented. Accordingly, Petitioner is not entitled to a Rhines stay. 26 Under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), a three-step procedure is used: (1) 27 the petitioner amends his petition to delete any unexhausted claims; (2) the court in its discretion 1 opportunity to proceed to state court to exhaust the deleted claims; and (3) once the claims have 2 been exhausted in state court, the petitioner may return to federal court and amend his federal 3 petition to include the newly exhausted claims. Kelly, 315 F.3d at 1070–71 (citing Calderon v. 4 United States Dist. Court (Taylor), 134 F.3d 981, 986 (9th Cir. 1998)). A petitioner’s use of 5 Kelly’s three-step procedure, however, is subject to the requirement of Mayle v. Felix, 545 U.S. 6 644, 664 (2005), that any newly exhausted claims that a petitioner seeks to add to a pending 7 federal habeas petition must be timely or relate back, i.e., share a “common core of operative 8 facts,” to claims contained in the original petition that were exhausted at the time of filing. King 9 v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009). Accordingly, the Court recommends that 10 Petitioner be allowed to proceed with the Kelly procedure. 11 IV. 12 ORDER & RECOMMENDATION 13 Based on the foregoing, the Court HEREBY ORDERS that the findings and 14 recommendation issued on November 5, 2024 (ECF No. 12) is VACATED. 15 Further, the Court HEREBY RECOMMENDS that: 16 1. Respondent’s motion to dismiss (ECF No. 9) be DENIED; and 17 2. Petitioner be allowed to proceed with the procedure set forth in Kelly v. Small, 315 F.3d 18 1063 (9th Cir. 2002). 19 This Findings and Recommendation is submitted to the assigned United States District 20 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 21 Rules of Practice for the United States District Court, Eastern District of California. Within 22 THIRTY (30) days after service of the Findings and Recommendation, any party may file 23 written objections with the Court, limited to fifteen (15) pages in length, including any 24 exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 25 Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 26 after service of the objections. The assigned District Judge will then review the Magistrate 27 Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file 1 | Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 2 | 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. FA. ee 5 Dated: _ January 29, 2025

STANLEY A. BOONE

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