1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDUARDO TOLENTINO, Case No.: 25-cv-01687-CAB-MMP

12 Petitioner,

ORDER DENYING AS MOOT MOTION

13 v. TO STAY

14 CHANCE ANDES, et al., [ECF No. 5] 15 Respondents. 16 17 On June 30, 2025, Petitioner, a state prisoner proceeding pro se, filed a Petition for 18 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent Chance Andes, 19 Warden. ECF No 1. 20 In an Order issued on July 8, 2025, the Court granted Petitioner’s motion to proceed 21 in forma pauperis and notified Petitioner the Petition as currently drafted was subject to 22 dismissal for failure to allege exhaustion of state court remedies. ECF No. 4. The Court 23 instructed Petitioner to avoid a future dismissal for presenting a petition with only 24 unexhausted claims, Petitioner must notify the Court of his choice to either: (1) 25 demonstrate exhaustion, (2) voluntarily dismiss the petition, or (3) file a motion to stay the 26 federal proceedings. Id. On July 24, 2025, Petitioner elected the third option and filed a 27 response to the Court’s July 8, 2025 Order, entitled “Motion To Stay The Federal 28 Proceedings In This Court,” in which he “requests an order granting the staying of this 1 federal proceeding pending the state exhaustion.” ECF Nos. 5 at 1, 3; 6. Respondent filed 2 an Opposition. ECF No. 9. On September 12, 2025, Petitioner filed a Reply, requesting the 3 Court deny the Motion to Stay and Abey after the California Supreme Court denied his 4 petition for review, as well as a request for leave to amend his original petition. ECF No. 5 10. 6 Currently before this Court are Petitioner’s Motion to Stay and Abey and request to 7 file a first amended petition. ECF Nos. 5, 6, 10. This Court has carefully considered these 8 documents, as well as Respondent's opposition, and the record as a whole. Based thereon, 9 and for the reasons set forth below, the Court DENIES the Request for Stay and Abeyance 10 Order as Moot. 11 I. BACKGROUND 12 Petitioner was convicted in the Superior Court of California for the County of 13 Imperial of first-degree murder with a firearm enhancement and other related charges and 14 sentenced to thirty-five years to life. ECF No. 6 at 10. Petitioner filed a direct appeal in the 15 Fourth District Court of Appeal, Division I and the California Supreme Court, where both 16 courts affirmed the Superior Court’s ruling on conviction and sentence. ECF No. 6 at 11. 17 Petitioner’s appeal challenged the denial of a Marsden1 motion, where Petitioner sought to 18 relieve his appointed counsel due to inadequate representation and “irreconcilable 19 conflict.” Id. The Fourth District Court of Appeal, Division I determined the trial court did 20 not abuse its discretion by denying the Marsden motion. Id. 21 Petitioner then sought a writ of habeas corpus in the Superior Court of California for 22 the County of Imperial, alleging ineffective assistance of trial and appellate counsel, denial 23 of his right to self-representation, and a conflict of interest involving his trial counsel. The 24 Superior Court denied the Petition on April 16, 2025. ECF No. 6 at 10. Petitioner then filed 25 26 27 28 1 his petition with the California Court of Appeal, which denied the Petition on June 17, 2 2025. Id. at 16, 19. 3 Petitioner filed the instant writ of habeas corpus in federal court on June 30, 2025. 4 ECF No. 1. 5 On July 7, 2025, Petitioner filed his petition with the California Supreme Court. ECF 6 No. 13-1 at 1. At the time Petitioner filed the federal habeas petition and subsequently 7 moved to stay pending exhaustion, the California Supreme Court had not ruled on his state 8 court habeas petition. ECF No. 1 at 16 ¶ 24. The California Supreme Court denied the 9 petition on August 20, 2025, while the instant motion to stay was pending. ECF No. 10 at 10 4.2 11 II. DISCUSSION 12 A. Magistrate Judge Authority 13 In habeas cases, magistrate judges may hear and determine nondispositive matters, 14 but not dispositive matters. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004). “[W]here 15 the denial of a motion to stay is effectively a denial of the ultimate relief sought, such a 16 motion is considered dispositive, and a magistrate judge lacks the authority to ‘determine’ 17 the matter.” Mitchell v. Valenzuela, 791 F.3d 1166, 1170 (9th Cir. 2015) (citing S.E.C. v. 18 CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). “By contrast, a motion to 19 stay is nondispositive where it ‘[does] not dispose of any claims or defenses and [does] not 20 effectively deny . . . any ultimate relief sought.’” Id. (citing CMKM Diamonds, 729 F.3d 21 at 1260). Here, the denial of Petitioner’s motion to stay and to file a first amended petition 22 as moot would not dispose of any claims or defenses or deny the ultimate relief sought by 23 Petitioner. Accordingly, the motion to stay is nondispositive, and this Court has the 24 authority to decide it without the need for a report and recommendation to the district judge. 25 26

27 2 Though Petitioner did not initially file a copy of his habeas petition filed with the 28 1 Beason v. Samuel, No. 21-cv-2052-GPC-RBB, 2022 WL 686961, at *2 (S.D. Cal. Mar. 7, 2 2022). 3 B. Motion to Stay 4 Petitioner filed the instant motion to stay his federal habeas petition pending the 5 California Supreme Court’s ruling on his state habeas petition. ECF No. 5. The purpose of 6 the motion is to permit a habeas petitioner to return to state court to exhaust his federal 7 claims, a prerequisite to a federal court’s review of the petition. Rhines v. Weber, 544 U.S. 8 269, 273-74 (2005). 9 “A federal court may not consider a petition for habeas corpus unless the petitioner 10 has first presented his federal claims to the state courts, thereby ‘exhausting’ them.” Evans 11 v. Tilton, No. 07-cv-791-JM-BLM, 2008 WL 205231 at *3 (Jan. 23, 2008) (citing 28 U.S.C. 12 § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 (1982)). “The exhaustion requirement 13 is founded on federal-state comity, as only when the state court has been presented with 14 the claim may it ‘pass on and correct alleged violations of its prisoners’ federal rights.’” 15 Evans, 2008 WL 205231 at *3 (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (per 16 curiam) (quotes and citations omitted)). Exhaustion is required to prevent the disruption of 17 state judicial proceedings, Rose, 455 U.S. at 522, and to “economiz[e] scare federal judicial 18 resources.” Jennison v. Goldsmith, 940 F.2d 1308, 1311 (9th Cir. 1991) (citation omitted). 19 Here, Petitioner filed his motion to stay pending the California Supreme Court's 20 consideration of his habeas petition. ECF No. 6 at 3. Since Petitioner filed his motion to 21 stay, the California Supreme Court has ruled on the state court petition, summarily denying 22 his claims on August 20, 2025. ECF No. 10 at 4. 23 “The question [before this Court] is therefore whether the California Supreme 24 Court’s ruling served to fully exhaust the claims Petitioner alleges in his federal habeas 25 petition, or whether unexhausted claims remain.” Evans, 2008 WL 205231 at *3. See also 26 McGrail v. Becerra, No. 18-cv-3642-JVS-SS, 2019 WL 4266814 at *3 (C.D. Cal. Jan. 14, 27 2019). “If Petitioner’s federal claims have already been ‘passed on’ by the state court, and 28 are thus exhausted, he no longer needs more time to return to state court. In that case, the 1 motion to stay would be moot.” Evans, 2008 WL 205231 at *3; see also Stamps v. Cate, 2 No. 11-cv-2048-LAB-WMc, 2012 WL 3076408 at *3 (S.D. Cal. July 30, 2012). However, 3 if unexhausted claims remain in the federal petition, then this Court must assess the motion 4 to stay regarding those claims. 5 “To determine whether the motion to stay is moot, this Court must make a side-by- 6 side comparison of the federal claims alleged in the federal petition with those of the state 7 petition, to see whether they were exhausted in the California Supreme Court.” Evans, 2008 8 WL 205231 at *4. 9 1. Legal Standard 10 Exhaustion of a habeas petitioner’s federal claims requires they have been “fairly 11 presented” in each appropriate state court, including a state supreme court with powers of 12 discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In California, this generally 13 entails direct or collateral presentation to both the lower courts of appeal and the state 14 supreme court, though presentation to the state supreme court alone may suffice. Rieger v. 15 Christensen, 789 F.2d 1425, 1427 (9th Cir. 1987); Johnson v. Zenon, 88 F.3d 828, 829 (9th 16 Cir. 1996). Here, this procedural requirement was met when Petitioner’s claims were 17 denied by the California Court of Appeal, followed by the California Supreme Court. ECF 18 Nos. 6 at 16–19; 10 at 4. 19 However, claims are not exhausted by mere presentation to the state appellate 20 system. A petitioner must also “alert[] [the state] court to the federal nature of the claim.” 21 Baldwin, 541 U.S. at 29. A petitioner may indicate a federal claim by citing the source of 22 federal law he relies upon, or by merely labeling the claim as “federal.” Id. at 32. If state 23 remedies have not been exhausted with respect to any of the federal claims, the habeas 24 petition typically should be dismissed. See Castille v. Peoples, 489 U.S. 346, 349 (1989). 25 Claims articulated in a federal habeas petition also must be the “substantial 26 equivalent” of those previously presented to the state courts. Schiers v. People, 333 F.2d 27 173, 174 (9th Cir. 1964). This requirement applies to both the factual and legal bases of a 28 claim. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999). 1 “The requirement of substantial equivalency is not rigid, and the state habeas petition 2 may be exhausted even when it does not spell out each syllable of the federal claim.” Patton 3 v. Beard, 14-cv-569-BEN-BLM, 2015 WL 1812811 at *2 (S.D. Cal. Apr. 20, 2015) (citing 4 Delgado v. Lewis, 181 F.3d. 1087, 1091 (9th Cir. 1999) (vacated and remanded on other 5 grounds, 528 U.S. 1122 (2000))). Furthermore, arguments presented to the federal court 6 can be supplemented with evidence not provided to the state court, as long as the additional 7 information does not “fundamentally alter” the claim. Vasquez v. Hillery, 474 U.S. 254, 8 260 (1986). 9 2. Petitioner Presents the Same Habeas Corpus Allegations in His Federal 10 and State Petitions 11 In his State Court writ for habeas corpus, Petitioner alleged (a) denial of right to self- 12 representation, (b) ineffective assistance of trial counsel, (c) ineffective assistance of 13 appellate counsel, and (d) a conflict of interest involving his trial counsel. ECF Nos. 6 at 14 11, 13-1 at 4–6. Looking to Petitioner’s federal allegations asserted in the Petition, the 15 Court finds they closely mirror the State allegations. 16 First, Petitioner alleged under Faretta, the trial court erred in denying his request to 17 represent himself. Faretta v. California, 422 U.S. 806 (1975). ECF Nos. 6 at 12, 13-1 at 5, 18 11. The trial court had denied the request as untimely. ECF No. 6 at 24. In the federal 19 allegations, Petitioner also asserts the trial court abused its discretion in denying his motion 20 to represent himself under Faretta. ECF No. 1 at 6. Furthermore, Petitioner asserts he 21 sought to represent himself for the purpose of “making a motion to withdraw his plea” to 22 first degree murder with a firearm enhancement. Id. 23 Second, Petitioner alleged ineffective assistance of trial counsel where trial counsel 24 failed to conduct a reasonable pre-trial investigation. ECF No. 6 at 11, 13-1 at 4. Petitioner 25 alleged had counsel “investigated adequately,” counsel would have negotiated a better plea 26 or prepared for trial with a “more favorable result.” ECF No. 6 at 18. Additionally, 27 Petitioner claimed trial counsel admitted he was ineffective during a visit in July 2022. 28 ECF Nos. 6 at 18, 13-1 at 4. Petitioner makes the same claim in the federal complaint and 1 asserts the failure to conduct a reasonable pretrial investigation led to a failure to present 2 exculpatory evidence, and a failure to obtain favorable testimony which “could have 3 bolstered” Petitioner’s affirmative defense. ECF No. 1 at 9–10. Furthermore, Petitioner 4 claims his trial counsel was so ineffective that Petitioner’s guilty plea agreement was not 5 knowingly entered; rather it was involuntary. Id. at 10, 14. 6 Third, Petitioner alleged ineffective assistance of appellate counsel where counsel 7 did not argue the Faretta issue. ECF Nos. 6 at 11–12, 19, 13-1 at 5. Petitioner repeats those 8 allegations in the federal complaint, and specifically states appellate counsel failed to raise 9 the self-representation Faretta claim on direct appeal. ECF No. 1 at 12. Instead, Petitioner 10 argues, appellate counsel raised the issue of the trial court denying a Marsden motion, 11 rather than the “significant and most obvious issue on appeal,” the trial court’s denial of 12 the Faretta motion. Id. 13 Fourth, Petitioner contended a conflict of interest existed between his trial counsel 14 and prior counsel due to their personal relationship. ECF Nos. 6. at 12, 13-1 at 4–5. 15 Specifically, Petitioner argued trial counsel and prior counsel were former law school 16 classmates and friends, which interfered with trial counsel’s filing of a motion to withdraw 17 Petitioner’s plea. ECF Nos. 6 at 18, 13-1 at 4–5. In the federal petition, Petitioner alleges 18 his trial counsel had a conflict of interest with his previous trial counsel, triggering 19 ineffective assistance of counsel. ECF No. 1 at 14. Therefore, his trial counsel could not 20 argue the prior trial counsel was “ineffective as counsel” because trial counsel was 21 burdened to choose between his client and the prior trial counsel with whom he had a 22 personal relationship. Id. 23 Comparing Petitioner’s state claims and federal claims, the Court finds they are 24 “substantial[ly] equivalent.” Schiers, 333 F.2d at 174. Both the sets of claims allege 25 ineffective assistance of trial and appellate counsel, denial of self-representation, and a 26 conflict of interest involving trial counsel. Additionally, each claim is predicated on the 27 same factual background. 28 1 Therefore, Petitioner has “fairly presented” his claims to the state court. Baldwin, 2 U.S. at 29. As the California Supreme Court has denied Petitioner’s state court petition, 3 Petitioner no longer requires more time to present his claims to state court. Petitioner’s 4 || Request for a Stay and Abeyance Order is therefore DENIED AS MOOT. 5 C. ‘First Amended Petition 6 Petitioner also seeks leave to file a first amended petition. ECF No. 10 at 2. 7 Petitioner need not apply for permission to file a first amended petition: he may do 8 ||so as a matter of right. Federal Rule of Civil Procedure 15(a) permits a civil litigant to 9 |}amend the party’s pleading once as a matter of course at any time before a responsive 10 || pleading is served. Additionally, Federal Rule of Civil Procedure 15(a) applies to § 2254 11 ||habeas petitions “with the same force that it applies to garden-variety civil cases.” 12 || Calderon v. United States Dist. Ct., 134 F.3d 981, 986 n.6 (9th Cir. 1998) abrogated on 13 || other grounds by Rhines v. Weber, 544 U.S. 269 (2005); see also Keating v. Hood, 191 14 || F.3d 1053, 1067 (9th Cir. 1998) (applying Rule 15(a) to § 2254 habeas petitions). 15 As Respondent has yet to file a responsive pleading, 1.e., an answer, Petitioner may 16 || file an amended pleading as a matter of right and does not need the Court’s permission to 17 so. 18 || CONCLUSION 19 For the foregoing reasons, the Court DENIES Petitioner’s motion to stay and abey 20 moot. 21 IT IS SO ORDERED. 22 ||Dated: January 12, 2026 Wyble th. eat 3 HON. MICHELLE M. PETTIT United States Magistrate Judge 24 25 26 27 28

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