Garcia v. Evans
| Decision Date | 20 June 2011 |
| Docket Number | Doc. No. 43,1:08-CV-1819 AWI DLB HC |
| Parties | FRANCISCO OROSCO GARCIA, Petitioner, v. WARDEN M.S. EVANS, Respondent. |
| Court | U.S. District Court — Eastern District of California |
Francisco Orosco Garcia (hereinafter "Petitioner") is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the Court is Petitioner's motion to stay his § 2254 federal habeas proceedings pending exhaustion of his recently filed "actual innocence" state court habeas claim. See Doc. No. 43.
Petitioner is currently in the custody of the California Department of Corrections and Rehabilitation pursuant to a July 13, 2004 jury verdict finding Petitioner and his two co-defendants guilty of first degree murder of Roberto Ramirez (Cal. Penal Code §187). The jury further convicted the three defendants on the corresponding charges of torture (Cal. Penal Code §206), conspiracy (Cal. Penal Code §182), and kidnapping (Cal. Penal Code §207)(a)). On November 26, 2008, Petitioner filed a habeas corpus action pursuant to 28 U.S.C. § 2254. See Doc. No. 1. On June 1, 2010, the Magistrate Judge issued a Findings and Recommendation ("F&R") that recommended the petition bedenied. See Doc. No. 28. On November 2, 2010, Petitioner filed a motion for leave of court to file supplemental objections to the F&R and a renewed motion for appointment of counsel. See Doc. No. 28. On December 20, 2010, the Court granted Petitioner's motion for appointment of counsel for the limited purpose of filing supplemental objections regarding Petitioner's fourth claim for relief.1 The Court found that the interests of justice would be served by appointment of counsel due to Petitioner's indigency, inability to read, speak, and understand the English language, and given the complexity of the issues involved with respect to Petitioner's fourth claim for relief. In addition, the Court found that Petitioner had made a sufficient showing as to why he would be successful on the merits of his fourth claim for relief.
On June 2, 2011, Petitioner's appointed counsel filed an ex parte motion to stay his § 2254 federal habeas proceedings pending exhaustion of his recently filed "actual innocence" state court habeas claim. See Doc. No. 43. Petitioner seeks an abeyance of the federal court proceedings until the state court rules on his actual innocence habeas claim, which he filed in the California Supreme Court on June 2, 2011. Petitioner asserts that he is innocent and that his co-defendant alone is responsible for the crimes and that Petitioner could not have testified to that effect at trial because his co-defendant threatened to kill him and his family if he said anything about the murder. Petitioner contends that the threats were made at the time of the murder, during the trial, and following conviction. Petitioner is now asserting his actual innocence claim because his fear of his co-defendant carrying out his death threats are reduced given that Petitioner is now incarcerated in a facility away from his co-defendant and because Petitioner's family has moved away from California.
On June 16, 2011, Respondent filed an opposition to Petitioner's motion to stay. See Doc. No. 46.
The Ninth Circuit Court of Appeals has recently clarified the procedures for analyzing stay-and-abeyance motions. See King v. Ryan, 564 F.3d 1133 (9th Cir. 2009). There are two approaches for analyzing a motion for a stay-and-abeyance, depending on whether the petition is mixed or fully exhausted. See Id. at 1135-36; Jackson v. Roe, 425 F.3d 654, 661 (9th Cir.2005). If the petitioner seeks a stay-and-abeyance order as to a mixed petition containing both exhausted and unexhausted claims, the request can be analyzed under the standard announced by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). See Jackson, 425 F.3d at 661. If, however, the petition currently on file is fully exhausted, and what petitioner seeks is a stay-and-abeyance order to exhaust claims not raised in the current federal petition, the approach set out in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), applies. See Jackson, 425 F.3d at 661.
Under Rhines, a district court has discretion to stay a mixed petition to allow a petitioner time to return to state court to present the unexhausted claim and then return to federal court for review of his perfected petition. Rhines, 544 U.S. at 276. This stay and abeyance is available in limited circumstances, and only when: (1) there is "good cause" for the failure to exhaust; (2) the exhausted claims are potentially meritorious; and (3) the petitioner did not intentionally engage in dilatory litigation tactics. Rhines stays and holds in abeyance both the exhausted and unexhausted claims.
In contrast, under Kelly, a district court has discretion to stay a fully exhausted petition. See King, 564 F.3d at 1140-41. Under Kelly's three step procedure: (1) a petitioner files an amended federal petition deleting his unexhausted claims; (2) the district court "stays and holds in abeyance the amended, fully exhausted petition, allowing petitioner the opportunity to proceed to state court to exhaust the deleted claims"; and (3) petitioner later amends his petition and reattaches "the newly-exhausted claims to the original petition." Id. at 1135. Another important distinction between the Rhines and Kelly standards is that under Kelly a petitioner must amend to add his deleted claims within the original one-year statue of limitation set forth by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Id. at 1138-39; 28 U.S.C. § 2244(d)(1). However, under a staypredicated on Rhines a petitioner need not worry about the statute of limitations because his unexhausted claims never leave federal court. See King, 564 F.3d at 1139, 1140 (citing Rhines, 544 U.S. at 277).
In this case, Petitioner does not seek to stay a mixed petition; he seeks to hold all of his original exhausted claims in abeyance while he exhausts his new actual innocence claim. Although Petitioner did not start on the same procedural ground as the typical Kelly-petitioner (i.e. with a mixed petition), Petitioner is in the same procedural posture as any Kelly-petitioner that has completed step one (i.e. possess a fully exhausted habeas claim and prays that the court grant a stay). Therefore, the Court finds that Kelly provides the appropriate standard in the instant case.
A stay is warranted under Kelly only if Petitioner is able to later amend his federal petition to include his newly exhausted claim within AEDPA's statute of limitations period. Petitioner's newly exhausted claim would be timely if it either: (1) falls within AEDPA's one-year limitation period as required by 28 U.S.C. § 2244(d); (2) is subject to equitable tolling; (3) relates back under Fed. R. Civ. P. 15(c); or (4) falls under the "actual innocence" exception set forth in Schlup v. Delo, 513 U.S. 298 (1995). In his motion, Petitioner does not address the statute of limitations issue he would face if the Court were to stay these proceedings, hold his current exhausted federal petition in abeyance to allow him time to exhaust his new claims, and then entertain a motion to amend his petition.
The AEDPA imposes a one-year period of limitation on petitioners seeking to file a federal petition for writ of habeas corpus. 28 U.S.C. § 2244(d)(1). As amended, § 2244, (d) reads:
Under § 2244(d)(1)(A), the limitations period begins running on the date that the Petitioner's direct review became final or the date of the expiration of the time for seeking such review.2 In this case, the California Supreme Court denied Petitioner's appeal on January 30, 2008. The state appeal process became final ninety days later, on April 29, 2008, when the time for seeking certiorari with the United States Supreme Court expired. See U.S. Supreme Court rule 13; Bowen v. Rowe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations began to run the following day, on April 30, 2008. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001).
Petitioner had one year from April 30, 2008, absent any tolling, in which to file his federal petition for writ of habeas corpus, meaning Petitioner had until April 30, 2009. Petitioner filed his federal habeas petition on November 26, 2008, within the statute of limitations period. However, that petition contained only claims he had exhausted in the state court, through his direct appeals. The actual innocence claim Petitioner now wishes to...
To continue reading
Request your trial