CATHY ANN BENCIVENGO, District Judge.
On March 18, 2018, Petitioner Jeffrey Steven McCreary ("Petitioner"), a state prisoner proceeding pro se and in forma pauperis, constructively filed a Petition for Writ of Habeas Corpus ("Petition) pursuant to 28 U.S.C. § 2254 challenging his 2014 first degree murder conviction. (ECF No. 1.) In his Petition, he raises fourteen claims. (Id. at 6-20.)
As set forth herein, the Court finds that Petitioner's request to expand the record is unnecessary given that Respondent will lodge complete copies of all of Petitioner's state habeas petitions with the Court; his request is
Petitioner's claims stem from a judgment of conviction entered in June 2014. (ECF No. 1. at 1.) He pursued a direct appeal, with the California Court of Appeal affirming the conviction on September 29, 2016 and the California Supreme Court denying his petition for review on January 18, 2017. (Id. at 2.) His conviction became final on April 18, 2017, which is the date his right to seek relief from the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999).
Petitioner filed his initial state habeas petition, case number HCN1500, with the California Superior Court on August 31, 2017, which was denied on September 6, 2017. (Id. at 3, 67-68.) He subsequently filed a habeas petition with the California Court of Appeal, case number D073026, which was denied on October 31, 2017. (Id. at 4, 69-70.) Finally, he filed a habeas petition on November 20, 2017 with the California Supreme Court, case number S245567, which was denied on February 14, 2018. (Id. at 4.)
Petitioner then constructively filed the instant federal Petition on March 18, 2018, raising fourteen claims. (ECF No. 1.) In his Petition, he alleges seven of the fourteen claims were raised on direct appeal, and the other seven claims were presented to the California Supreme Court via petition number S245567. (Id. at 6-12 [claims presented on direct appeal], 13-19 [claims presented via state habeas petition].) He subsequently filed the instant Motion nunc pro tunc to May 23, 2018, in which he lists an additional five claims he wishes to exhaust.
However, following the Court's review of the Petition as well as the additional claims included in the Motion, it appears one of the claims in his Petition, claim number fourteen based on his actual innocence, is unexhausted.
Since the filing of the instant Petition, Petitioner has begun the process of presenting his five additional unexhausted claims to the California courts. Petitioner claims he filed a second habeas petition, case number HCN1519, with the California Superior Court, which was denied on April 19, 2018. (ECF No. 6 at 5.) On May 23, 2018, he filed a habeas petition regarding his five unexhausted claims with the California Court of Appeal, which was denied on May 25, 2018.
The five additional claims Petitioner seeks to exhaust are: (1) the addition of a mid-trial felony murder charge and new theory of kidnapping, which was not supported by evidence at the preliminary hearing, violated his constitutional right to a fair trial;
In his Motion, Petitioner requests to expand the record to include his new state habeas corpus petition and the corresponding exhibits. (ECF No. 6 at 3, 10-87.) He asks in the alternative for a stay and abeyance of his Petition under either Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1448-49 (9th Cir. 2007) or Rhines v. Weber, 544 U.S. 269 (2005).
Respondent argues that Petitioner has not satisfied the requirements for a stay and abeyance pursuant to either Kelly or Rhines, as his unexhausted claims
Federal habeas petitioners who wish to challenge a state court conviction or length of confinement in state prison must first exhaust state judicial remedies. 28 U.S.C. § 2254(b)-(c); Rose v. Lundy, 455 U.S. 509, 522 (1982) (holding a district court must dismiss a federal habeas petition containing both unexhausted and exhausted claims); Granberry v. Greer, 481 U.S. 129, 133-34 (1987) ("as a matter of comity, federal courts should not consider a claim in a habeas corpus petition until after the state courts have had an opportunity to act"). The petitioner must "seek full relief first from the state courts, thus giving those courts the opportunity to review all claims of constitutional error." Dixon v. Baker, 847 F.3d 714, 718 (9th Cir. 2017) (quoting Rose, 455 U.S. at 518-19); see also Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002) (finding that a petitioner must exhaust all available state remedies, either through direct appeal of his conviction or through collateral proceedings).
Exhaustion of a habeas petitioner's federal claims requires they be "fairly present[ed]" to each appropriate state court. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A petitioner must provide the highest state court with a fair opportunity to consider the factual and legal bases of his claims prior to presenting them to federal court. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999) (citing Picard v. Connor, 404 U.S. 270, 276 (1971)0; Davis v. Silva, 511 F.3d 1005, 1008-09 (9th Cir. 2008). In California, a state prisoner "may seek review of an adverse lower court decision by filing an original petition (rather than a notice of appeal) in the higher court. . . ." Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008).
When a petitioner files a "mixed" petition, one containing both exhausted and unexhausted claims, courts may either dismiss the petition in its entirety or grant a stay to permit the petitioner to exhaust his unexhausted claims. Rose, 455 U.S. at 510. There are two procedures available to federal habeas petitioners who wish to proceed with unexhausted claims for relief. In that circumstance, a stay may be appropriate under either Kelly or Rhines. See Rhines, 544 U.S. at 277-78; Kelly, 315 F.3d at 1063. In King v. Ryan, 564 F.3d 1133 (9th Cir. 2009), the Ninth Circuit summarized the difference between the procedures as follows:
564 F.3d at 1139-40. These two methods are separate and distinct procedures for staying federal proceedings in the context of mixed habeas corpus petitions. Id. at 1140.
Rhines permits federal courts to stay "mixed" federal habeas petitions, which contain exhausted and unexhausted claims, while the petitioner returns to state court to exhaust the unexhausted claims. 544 U.S. at 277-78; see Rose, 455 U.S. at 510 (defining a "mixed" habeas petition). Under Rhines, a district court must stay a mixed petition only if: (1) the petitioner has "good cause" for his failure to exhaust his claims in state court; (2) the unexhausted claims are not "plainly meritless"; and (3) there is no indication that the petitioner intentionally engaged in dilatory litigation tactics. Rhines, 544 U.S. at 278; Dixon, 847 F.3d at 721-22. Petitioner must establish that at least one of his unexhausted claims is not "plainly meritless" under Rhines. Dixon, 847 F.3d at 722. The Supreme Court has held that a Rhines "stay and abeyance should be available only in limited circumstances" because staying a federal habeas petition frustrates the Antiterrorism and Effective Death Penalty Act's ("AEDPA") objective of encouraging finality. Rhines, 544 U.S. at 277.
A Kelly stay may be granted when a federal habeas petition consists of entirely exhausted claims, but the petitioner seeks a stay to raise new claims in state court. 315 F.3d at 1070-71. A petitioner must delete unexhausted claims from his federal petition, exhaust those claims in state court, and then re-add them to his federal petition via amendment. King, 564 F.3d at 1138-41. Critically, because a Kelly stay does not toll AEDPA's one-year statutory deadline, an untimely petitioner is precluded from such a stay unless he is entitled to statutory or equitable tolling or if Petitioner's unexhausted claims "relate back" to his exhausted claims. See Mayle v. Felix, 545 U.S. 644, 659 (2005); Holland v. Florida, 560 U.S. 631, 649 (2010) (permitting equitable tolling when petitioner demonstrates (1) he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.")
"An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time-limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleadings set forth." Mayle, 545 U.S. at 650. To relate back, a claim must share "a common core of operative facts" with a timely claim. Id. at 659, 664. A claim does not relate back to an existing claim simply because it arises from "the same trial, conviction or sentence." Id. at 663-64.
Here, Petitioner requests that the Court expand the record to include his new state habeas corpus petition and the corresponding exhibits. (ECF No. 6 at 3, 10-87.) Respondent is correct in that the Court will have before it "complete copies of [Petitioner's] state court filings, including all habeas corpus records and the direct appeal record" as part of the lodgments provided by Respondent in due course. (See ECF No. 9 at 20); Rules Governing § 2254 Cases, Rule 5(c), (d) (requirement to lodge records, including briefs on appeal and opinions). Accordingly, enlargement of the record to include Petitioner's new state habeas corpus petition and corresponding exhibits is unnecessary and his request to expand the record is
Petitioner has filed a Petition that is mixed, as it includes an unexhausted actual innocence claim,
As discussed above, Petitioner's sole unexhausted claim that is actually alleged in the Petition is claim number fourteen. (ECF No. 1 at 19.) In this claim, Petitioner alleges that he is actually innocent "of shooting anyone" as his co-defendant was the individual who actually pulled the trigger. (Id.) He references a "newly presented witness that has credible, material, relevant evidence showing [he] could not be the shooter as it was the codefendant. . . ." (Id.) Based on this claim as drafted, it is unclear who the "newly presented witness" is. (See id.) Following a full review of the Petition and the attached state habeas petition number S245567 submitted to the California Supreme Court, it appears Petitioner is attempting to base this claim on the summary of an interview conducted with Roxanne Chavez. (See ECF No. 1 at 13 [Petitioner's ineffective assistance of counsel claim regarding failure to interview Chavez in federal Petition referencing state court habeas petition number S245567 contention number one]; 40-41 [argument in support of contention number one]; 58-60 [Chavez interview summary].)
As noted above, Rhines sets forth three requirements a petitioner must establish before a mixed habeas petition will be stayed. See Rhines, 544 U.S. at 278; Dixon, 847 F.3d at 721-22. Here, Petitioner has not shown that his sole unexhausted claim, his actual innocence claim, as alleged in his Petition is not "plainly meritless." He fails to explain in his federal Petition claim number fourteen how information contained in the Chavez interview constitutes proof of his actual innocence. (See ECF No. 1 at 19 [single page in support of actual innocence claim].) Further, in his attached state court habeas petition number S245567, Petitioner makes no argument linking the Chavez interview to a claim of actual innocence. Thus, based on the actual innocence claim as alleged in the Petition, Petitioner has failed to establish that this claim is not "plainly meritless." See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013) (in the context of actual innocence allegation, petitioner must "persuade[] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."). Accordingly, Petitioner is not entitled to a stay of his mixed Petition in its entirety; his request for a Rhines stay of his mixed Petition is
In addition to a Rhines stay, Petitioner also requests a stay pursuant to Kelly. (ECF No. 6 at 3.) The district court has discretion to implement a stay and abeyance under Kelly when the standard for Rhines is not met. King, 564 F.3d at 1140, 1143 (noting that the use of the Kelly procedure does "not present the same dangers of abuse" as a Rhines stay). As described by the Ninth Circuit, a Kelly stay involves a three-step process:
King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). As detailed above, Petitioner has already presented his unexhausted claims to the California Superior Court and California Court of Appeal. His petition number S250337 has been pending since July 30, 2018 before the California Supreme Court.
Under the Kelly procedure, Petitioner does not have to show good cause. King, 564 F.3d at 1140. However, he will not be permitted to amend his petition unless the newly exhausted claims are timely under the statute of limitations, or they "relate back" to the claims in the fully exhausted petition. Id. at 1141. As explained in King, due to AEDPA's one year statute of limitations, "demonstrating timeliness will often be problematic" for a petitioner and, therefore, the process is not only cumbersome, but is also risky.
Because Petitioner's unexhausted claims include an actual innocence claim, this could potentially constitute an exception to AEDPA's one-year limitations period. See McQuiggin, 569 U.S. at 386; also Lee v. Lampert, 653 F.3d 929, 934-37 (9th Cir. 2011) (en banc). Further, Respondent does not address the timeliness of Petitioner's claims under the one-year AEDPA limitations period. (See ECF No. 9.) Instead, the only timeliness argument she makes is that because the California Court of Appeal found Petitioner's unexhausted claims to be untimely, Petitioner cannot meet the Kelly requirements for a stay.
Because of these factors, the Court is unable to determine whether Petitioner's currently unexhausted claims would be time-barred, what periods of statutory tolling Petitioner may be entitled to, whether Petitioner's claim of actual innocence warrants relief from the limitations period, and whether Petitioner would be required to establish that his unexhausted claims "relate back" to his exhausted claims. Thus, the futility of Petitioner's unexhausted claims cannot be fully assessed. Additionally, without the benefit of the state court record and only scant briefing from Respondent addressing the issue, at least one of the unexhausted claims appears to be potentially "valid."
Accordingly, the Court finds it appropriate at this time to
Thus, the Court does not reach the question of whether the new claims Petitioner intends to exhaust may later be presented in this federal habeas action by way of amendment. The Court will address this question when, and if, Petitioner seeks leave to present his newly exhausted claims to the Court via an amended federal petition pursuant to the third step of the Kelly procedure. Petitioner is cautioned that "technical exhaustion" in state court does not guarantee federal review at the third step of the Kelly procedure. See Mayle, 545 U.S. at 659 (newly exhausted claims that are untimely may only be added back if they "relate back" to the original unexhausted claims); King, 564 F.3d at 1140-41 (a newly exhausted claim may be added to a stayed federal petition if timely under AEDPA).
Petitioner requests an evidentiary hearing. (ECF No. 10 at 5.) To the extent Petitioner is requesting an evidentiary hearing be held at this stage of the proceedings, his request is premature. Pursuant to Rule 8(a) of the Rules Governing § 2254 Cases, a court determines whether an evidentiary hearing is warranted in a habeas proceeding after the respondent files an answer to the petition. See Fed. Rules Governing § 2254 Cases, Rule 8(a). To date, Respondent has not filed an answer or motion to dismiss in this case (see Docket) and the Court is granting a stay in this case to allow Petitioner to present his unexhausted claims to state court. Accordingly, Petitioner's request for an evidentiary hearing is
Petitioner requests for the first time appointment of counsel in his Reply. (ECF No. 10 at 5.) He neither addresses the standard for appointment of counsel nor provides any bases for such an appointment. (See id.)
The Sixth Amendment right to counsel does not extend to federal habeas corpus actions by state prisoners. McCleskey v. Zant, 499 U.S. 467, 495 (1991); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, financially eligible habeas petitioners seeking relief pursuant to 28 U.S.C § 2254 may receive court appointed counsel when "the interests of justice so require," as determined by the court. 18 U.S.C. § 3006A(a)(2)(B); Luna v. Kernan, 784 F.3d 640, 642 (9th Cir. 2015); Terranova v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990). The interests of justice require appointment of counsel when the court conducts an evidentiary hearing on the petition. Terranova, 912 F.2d at 1177; Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Appointment of counsel is discretionary where no evidentiary hearing or discovery is necessary. Id.; Luckett v. McDaniel, 213 F.3d 642 (9th Cir. 2000).
Further, an indigent prisoner is not entitled to the appointment of counsel unless "the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). Such a violation can occur in the absence of counsel if the issues involved are too complex for the petitioner or if the petitioner has such a limited education that he is incapable of presenting his claims. Hawkins v. Bennett, 423 F.2d 948, 950 (8th Cir. 1970). A court must exercise discretion and "evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
The Court finds Petitioner is not entitled to appointment of counsel based on due process concerns. At this point, because the Court does not find an evidentiary hearing is warranted, Petitioner would only be entitled to appointment of counsel if its denial would constitute a violation of due process. The Court finds that it does not. As is the case in considering every habeas petition, the Court is obligated to and will view Petitioner's filings liberally and independently scrutinize the state court record. Knaubert, 791 F.2d at 729 (finding highly protective procedures for pro so petitioners and court's obligation to "review the record and render an independent legal conclusion" weigh in favor of finding that due process does not require appointment of counsel). Additionally, there is nothing about the claims or Petitioner's ability to present his claims that indicates the particular circumstances of his case require counsel or that counsel should be appointed in the interest of justice. See LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987) (finding district court did not abuse its discretion in denying habeas petitioner appointed counsel based on interest of justice when his pleadings demonstrated he had a good understanding of the case and could coherently present his contentions); Roberts v. Long, No. 14CV0427-WQH DHB, 2015 WL 3862871, at *12 (S.D. Cal. June 19, 2015) (finding appointment of counsel is not required to prevent a due process violation where there is no indication that the petition is incapable of presenting his claims or that the issues are too complex).
Moreover, having reviewed the instant Motion, Petition, and the petitions filed before the California Supreme Court in this case, Petitioner has proven himself capable of presenting his arguments and the claims in his Petition. Therefore, the Court finds that that the interests of justice do not require the appointment of counsel. Accordingly, Petitioner's request for appointment of counsel is
For the foregoing reasons, Petitioner's Motion to Expand the Record, or in the alternative, Motion for Stay and Abeyance (ECF No. 6) is
Further, Petitioner's request for an evidentiary hearing is
