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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 OSCAR RODRIGUEZ JR., Case No. 2:21-cv-05070 SVW (KES)

12 Petitioner,

ORDER TO SHOW CAUSE WHY

13 v.

PETITION SHOULD NOT BE

14 CRAIG KOENIG, Warden, DISMISSED AS MIXED

15 Respondent.

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18 I.

19 BACKGROUND

20 On June 22, 2021, Oscar Rodriguez Jr. (“Petitioner”) constructively filed a 21 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 22 U.S.C. § 2254. (Dkt. 1 [“Petition”]) Petitioner challenges his conviction for first- 23 degree murder. (Id. at 2.) The Petition raises the following grounds for relief: 24 (1) insufficiency of the evidence, (2) ineffective assistance of counsel, 25 (3) instructional error, (4) prosecutorial misconduct, and (5) cumulative error. (Id. 26 at 3.) 27 On August 11, 2021, Respondent filed a motion to dismiss, and lodged 28 documents (“LD”) from Petitioner’s state proceedings, arguing that the Petition 1 should be dismissed because Ground Five is unexhausted. (Dkt. 7, 8.) Pursuant to 2 the Court’s Order Requiring Response to Habeas Petition, Petitioner’s opposition to 3 the motion to dismiss was due August 31, 2021. (Dkt. 5 at ¶ 5.) As of the date of 4 this Order to Show Cause, no opposition has been filed.1 5 II. 6 LEGAL STANDARD 7 The United States Supreme Court follows a rule of “total exhaustion,” 8 requiring that all claims in a habeas petition be exhausted before a federal court 9 may grant the petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982). If all or 10 some of the claims have not been exhausted, then the petition is subject to 11 dismissal. Id. 12 To satisfy the exhaustion requirement, a habeas petitioner must fairly present 13 his federal claims in the state courts in order to give the State the opportunity to 14 pass upon and correct alleged violations of the petitioner’s federal rights. Duncan 15 v. Henry, 513 U.S. 364, 365 (1995) (per curiam). Exhaustion requires that a 16 petitioner’s claims be fairly presented to the highest court in a state court system 17 even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838, 18 845–47 (1999); James v. Giles, 221 F.3d 1074, 1077 n.3 (9th Cir. 2000). For a 19 petitioner in California state custody, this generally means the petitioner must have 20 fairly presented his claims to the California Supreme Court. See O’Sullivan, 526 21 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882, 22 888 (9th Cir. 1999) (applying O’Sullivan to California). A petitioner has the 23 burden of demonstrating that he has exhausted available state remedies. See, e.g., 24 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). 25 Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996 26 (“AEDPA”), all federal habeas petitions are subject to a one-year statute of

27 1 If Petitioner has subsequently mailed his opposition brief, he may disregard this 28 Order to Show Cause. 1 limitations, and claims not exhausted and presented to the federal court within the 2 one-year period are forfeited. 28 U.S.C. § 2244(d). Under Rhines v. Weber, 544 3 U.S. 269 (2005), a district court has discretion to stay a petition to allow a petitioner 4 to exhaust his claims in state court without running afoul of AEDPA’s one-year 5 statute of limitations period. Id. at 273–75. A district court may stay a petition if: 6 (1) the petitioner has good cause for his failure to exhaust his claims; (2) the 7 unexhausted claims are potentially meritorious; and (3) there is no indication that 8 the petitioner intentionally engaged in dilatory tactics. Id. at 278. 9 Alternatively, the Court may grant a stay under Kelly v. Small, 315 F.3d 10 1143 (9th Cir. 2003), which does not have the Rhines “good cause” requirement. 11 See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). A Kelly stay and abeyance 12 requires compliance with the following three-step procedure: (1) petitioner files an 13 amended petition deleting his unexhausted claims; (2) the district court “stays and 14 holds in abeyance the amended, fully exhausted petition, allowing petitioner the 15 opportunity to proceed to state court to exhaust the deleted claims”; and 16 (3) petitioner must subsequently seek to amend the federal habeas petition to 17 reattach “the newly-exhausted claims to the original petition.” Id. at 1135. Under 18 Kelly, however, the petitioner is only allowed to amend newly-exhausted claims 19 back into his federal petition if the claims are timely under the AEDPA or “relate 20 back” to the exhausted claims in the pending petition. Id. at 1140–41; see also 21 Mayle v. Felix, 545 U.S. 644, 662–64 (2005); Stein v. Director of Corrections, No. 22 05-1592, 2009 U.S. Dist. LEXIS 114016, 2009 WL 4755727 (E.D. Cal. Dec. 8, 23 2009). 24 III. 25 DISCUSSION 26 Ground Five raised in the present Petition appear to be unexhausted. In 27 Ground Five, Petitioner claims that his due process rights were violated by the 28 cumulative effect of the errors alleged in Grounds One through Four of the Petition 1 as well as instructional error on unanimity, burden shifting by the trial court during 2 jury selection, and improper denial of pretrial discovery. (Pet. at 3; Dkt. 3 at 14– 3 17.) In his petition for review in the California Supreme Court, Petitioner also 4 presented a cumulative error claim, but the errors that formed the basis of that claim 5 did not include instructional error on unanimity or improper denial of pretrial 6 discovery. (LD 2 at 48.) While Petitioner raised an instructional error on 7 unanimity on direct appeal in the California Court of Appeal (LD 1 at 27–32), he 8 did not include the claim in his petition for review in the California Supreme Court 9 (LD 2). As to the claim of improper denial of pretrial discovery, it was alleged in 10 Argument VI of the petition for review (LD 2 at 49–54), but the cumulative error 11 claim in the petition for review was based exclusively on the errors alleged in 12 Arguments I through IV of the petition for review (id. at 48). In sum, the 13 cumulative error claim in the instant Petition encompasses errors that were not 14 included in the cumulative error claim in the petition for review in the California 15 Supreme Court. 16 IV. 17 CONCLUSION 18 IT IS HEREBY ORDERED that, on or before October 15, 2021, Petitioner is 19 ordered to show cause why the Petition should not be dismissed as mixed. In 20 response to this Order to Show Cause, Petitioner should do one of the following: 21 (1) State that Petitioner would like to proceed only with the exhausted 22 claims2 (Grounds 1, 2, 3, and 4), 23 (2) Explain when/how Petitioner believes Ground 5 was exhausted in state 24 court, or 25

26 2 The Court notes that the unexhausted Ground 5 appear to be very similar to other, exhausted claims raised in the Petition. It therefore appears that Petitioner would 27 suffer little prejudice if he decides to dismiss Ground 5 and proceed only on the 28 exhausted claims. 1 (3) File a motion to stay this action, to permit him to return to state court to 2 | exhaust Ground 5. As discussed above, a stay may be available under Rhines v. 3 | Weber, 544 U.S. 269 (2005) if Petitioner can show “good cause” for his failure to 4 | exhaust his claims earlier, or under Kelly v. Small, 315 F.3d 1143 (9th Cir. 2003). 5 6 | DATED: September 15, 2021 7 Forms €. 9 “Slaw &, Sest?

KAREN E. SCOTT

10 UNITED STATES MAGISTRATE JUDGE 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28