Opinion
21-cv-1186-BAS-RBM
02-04-2022
JOHN BENAVIDES, Petitioner, v. W.L. MONTGOMERY, Respondent.
ORDER ADOPTING IN ITS ENTIRETY THE REPORT AND RECOMMENDATION ON PETITIONER'S REQUEST FOR STAY [ECF NO. 12]
Hon. Cynthia Bashant, United States District Judge.
Petitioner John Benavides (“Petitioner”), a state prisoner proceeding pro se and in forma pauperis, commenced this habeas corpus proceeding by filing a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. § 2254 (“AEDPA”) on June 28, 2021. (Pet., ECF No. 1.) Petitioner contemporaneously moved for a stay and abeyance of this proceeding so that he might have additional time to exhaust in state court two of his four claims for relief. (Mot., ECF No. 3.) Crucially, however, the Petition filed with this Court contains only two claims for relief, which the record demonstrates Petitioner already has exhausted. (See Notice of Lodgment, ECF No. 8.) Respondent W.L. Montgomery (“Respondent”) opposed Petitioner's Motion (Opp'n, ECF No. 7) and Petitioner replied (Reply, ECF No. 9). In his Reply, Petitioner identified for the first time the two additional claims for relief for which he seeks a stay to exhaust. (Id.)
On January 7, 2022, the Honorable Ruth B. Montenegro, United States Magistrate Judge, issued a Report & Recommendation (“R&R”), which recommended that:
(1) the Motion be construed not only as a request for a stay and abeyance but also as a constructive amendment pursuant to Federal Rule of Civil Procedure (“Rule”) 15(a), adding the two unexhausted claims to the Petition;
(2) the Court deny the Motion to the extent Petitioner seeks a stay and abeyance pursuant to the procedure delineated in Rhines v. Weber, 544 U.S. 269 (2005) (“Rhines”); and
(3) the Court grant the Motion to the extent Petitioner seeks a stay and abeyance pursuant to the procedure delineated in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) (“Kelly”), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).(R&R, ECF No. 12.) Notably, the R&R recommended that a stay issue pursuant to Kelly even though doing so would leave pending in district court the unexhausted claims alleged in Petitioner's constructively amended Petition.
For the reasons stated below, the Court ADOPTS IN ITS ENTIRETY the R&R. I. BACKGROUND
A. Guilty Plea and Sentencing
Petitioner is currently serving a 28-year sentence in state prison after pleading guilty in October 2018 to one count of robbery, one count of conspiracy to commit aggravated assault, one count of possession of cocaine for sale, one count of attempted extortion, and one count of making criminal threats. (See ECF No. 8-3 at 12.) Additionally, as part of that plea agreement, Petitioner admitted the truth of certain sentencing-enhancement allegations, including a prior strike allegation. (Id.) In exchange, the prosecutor dismissed the remaining nineteen counts with which Petitioner was charged. (Id.) The plea agreement left to the discretion of the trial court the appropriate sentence to impose. (Id.) On February 8, 2019, the trial court sentenced petitioner to 28 years in state prison. (Id.)
B. Direct Appeal
Petitioner appealed his sentence to the California Court of Appeal, arguing that the trial court had abused its discretion by (1) rejecting his Romero motion and (2) imposing fines and assessments in an amount exceeding $20,000 without first determining whether Petitioner's indigency precluded him from satisfying such a penalty. (Id.) The California Court of Appeal rejected Petitioner's arguments and affirmed the trial court's sentence in 2020. (ECF No. 8-5.) Petitioner then appealed to the California Supreme Court, which denied review on June 24, 2020. (ECF No. 8-7.)
Under California state law, a criminal “defendant with two more prior ‘strikes'-that is, certain felony convictions-who is convicted of a felony must be sentenced under” California's so-called three strikes law, Cal. Penal Code §§ 667(b)-(i) and 1170.12, “to no less than 25 years to life” and “cannot receive ‘good time credits' to reduce his sentence below the mandatory minimum term of 25 years.” Brown v. Mayle, 283 F.3d 1019, 1021 (9th Cir. 2002) (citing In re Cervera, 24 Cal.4th 1073, 103 Cal.Rptr.2d 762, 16 P.3d 176, 181 (2001)). Under People v. Superior Court (Romero), 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628 (1996), a defendant may request that a judge use their discretion to “strike” a defendant's prior strikes for purposes of applying the three strikes law, if it would be “in furtherance of justice.”
C. Federal Habeas Corpus Petition
As mentioned above, Petitioner commenced this action on June 28, 2021 by filing the instant Petition. The Petition lists two grounds for relief. (Pet. at 7.) They are the same two grounds for relief Petitioner raised on direct appeal-that the trial court erred by denying his Romero motion and by imposing hefty assessments and fines despite Petitioner's indigence. (Id.) Thus, on its face, the Petition is not “mixed, ” i.e., it does not contain both exhausted and unexhausted claims, but rather is fully exhausted.
D. Motion for Stay and Abeyance
Contemporaneous to initiating this federal habeas corpus proceeding, Petitioner filed a Motion for a stay and abeyance of this matter, asserting he needs additional “[t]ime [t]o [e]xhaust 2 [o]f [his] 4 [c]laims” as “[t]he process [h]as [b]een slow” due to the pandemic. (Mot.) As mentioned above, the Petition contains only two exhausted claims. Thus, it is entirely unclear on the face of the Petition to what two additional unexhausted claims Petitioner refers. However, Petitioner's Reply clarifies that he seeks to assert in this proceeding two additional grounds for relief based upon (1) ineffective assistance of counsel and (2) “illegal enhancement.” (Reply at 1-2.) On the record before the Court, it does not appear that Petitioner ever has raised those grounds for relief in state court and, thus, those grounds for relief are, in fact, unexhausted as Petitioner avers.
II. LEGAL STANDARD
A. District Court Review
The Court reviews de novo those portions of an R&R to which objections are made. 28 U.S.C. § 636(b)(1). The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. “The statute makes it clear, ” however, “that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (concluding that where no objections were filed, the district court had no obligation to review the magistrate judge's report). “Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.” Reyna-Tapia, 328 F.3d at 1121. This legal rule is well-established in the Ninth Circuit and this district. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005) (“Of course, de novo review of a[n] R & R is only required when an objection is made to the R & R.”); Nelson v. Giurbino, 395 F.Supp.2d 946, 949 (S.D. Cal. 2005) (adopting report in its entirety without review because neither party filed objections to the report despite the opportunity to do so); see also Nichols v. Logan, 355 F.Supp.2d 1155, 1157 (S.D. Cal. 2004).
B. Stay and Abeyance of “Mixed” Petitions
“[F]ederal courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing both exhausted and unexhausted claims” as “the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims.” Rhines, 244 U.S. at 273 (citing Rose v. Lundy, 455 U.S. 509, 518-19 (1982)). The Supreme Court has stated that “[a]s a result of the interplay between AEDPA's 1-year statute of limitations and Lundy's dismissal requirement, petitioners who come to federal court with mixed petitions run the risk of forever losing their opportunity for any federal review of their unexhausted claims.” Id. at 275. Thus, when presented with a mixed petition, “a district court might stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims.” Id. “Under this procedure, ” known colloquially as a “Rhines stay, ” “a district court [may] stay the petition and hold it in abeyance while the petitioner returns to state court to exhaust his previously unexhausted claims. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.” Id. at 275-76.
To invoke a Rhines stay, the petitioner must show as a preliminary matter that good cause exists for his failure to exhaust the unexhausted claims in state court. Id. at 277. A failure to show good cause in and of itself warrants denial of a Rhines stay. See Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008) (“[T]he district court did not abuse its discretion in concluding that [petitioner] did not have ‘good cause' for failing to exhaust his cumulative error claim” and “[a]s a result, [the court] need not reach the other . . . factors in the Rhines test.”). However, where good cause is shown, courts will also look to whether the unexhausted claims have potential merit and whether there is any indication that the request for a stay is, in fact, and intentionally dilatory tactic. See Rhines, 544 U.S. at 278.
In the Ninth Circuit, a petitioner also may seek a stay under the “withdrawal and abeyance procedure” outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003); see also King v. Ryan, 564 F.3d 1133, 1141-42 (9th Cir. 2009). Indeed, in Kelly, the Ninth Circuit promulgated a “three-step procedure for mixed petitions, allowing (1) a petitioner to amend his petition to delete any unexhausted claims; (2) the court in its discretion to stay and hold in abeyance the amended, fully exhausted petition, providing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) once the claims have been exhausted in state court, the petitioner to return to federal court and amend his federal petition to include newly-exhausted claims.” King, 564 F.3d at 1138-39 (citing Calderon v. U.S. Dist. Ct. (Taylor), 134 F.3d 981, 986 (9th Cir. 1988)). The Ninth Circuit has expressly held that a Kelly stay may issue even where the circumstances do not justify a Rhines stay. Id.
The Ninth Circuit has opined that there are two critical distinctions between a stay and abeyance pursuant to Rhines and a withdrawal and abeyance pursuant to Kelly. See King, 564 F.3d at 1136, 1139. First, a petitioner need not satisfy Rhines' “good cause” standard to obtain a Kelly stay. Id. at 1136. Second, whereas “Rhines allows a district court to stay a mixed petition, and does not require that unexhausted claims be dismissed while the petitioner attempts to exhaust them in state court, ” “[i]n contrast . . . Kelly allows the stay of fully exhausted petitions, requiring that any unexhausted claims be dismissed.” Id. at 1339 (citing Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)) (emphasis in original). In other words, unlike a stay pursuant to Rhines, a Kelly stay “[does] not require good cause but also [does] not leave the entire mixed petition pending in district court.” Id. at 1136.
III. ANALYSIS
The deadline to file an objection to the R&R has come and passed, yet neither Respondent nor Petitioner has filed objections or sought additional time to do so. Consequently, it would be appropriate for the Court to adopt the R&R on that basis alone. See Reyna-Tapia, 328 F.3d at 1121. Nonetheless, this Court conducts a de novo review of the record and Judge Montenegro's findings and recommendations.
In doing so, the Court finds that Judge Montenegro accurately summarized the factual and procedural history of this matter. Moreover, the Court finds well-reasoned Judge Montenegro's recommendation to construe liberally the Motion as a constructive amendment to the Petition to add thereto the two unexhausted claims for relief Petitioner identified in his Reply. See Watson v. Cale, No. 01cv1780-AJB, 2011 WL 6202788, at *8 (S.D. Cal. Dec. 6, 2011) (holding that petition was constructively amended to include unexhausted claim referenced in petitioner's application for a Rhines stay, but not explicitly mentioned on the face of the petition). So, too, is the Court persuaded Judge Montenegro's recommendation to deny the Motion to the extent it seeks a Rhines stay rests upon solid legal foundation. As the R&R correctly observes, the record does not supply any information that would enable this Court to find Petitioner satisfies the “good cause” standard required for a Rhines stay. See Wooten, 540 F.3d at 1023 (holding failure to satisfy “good cause” standard fells a request for a Rhines stay).
The Court observes that had the R&R not made this threshold finding that the Motion constructively amended the Petition to include unexhausted claims, neither a Rhines stay nor Kelly stay would have been appropriate, for the Petition would have contained only exhausted claims.
However, while the Court agrees with Judge Montenegro's recommendation to grant a stay and abeyance pursuant to Kelly, it finds that such a stay may not issue with Petitioner's constructively amended Petition being the operative one. Ninth Circuit precedent is clear that district courts cannot retain jurisdiction of unexhausted claims in a petition while a petitioner pursues exhaustion of such claims during the pendency of a Kelly stay. See King, 564 F.3d at 1136, 1139 (citing Jackson, 425 F.3d at 661). Rather, a Kelly stay requires dismissal of pending unexhausted claims from the petition. See McReary v. Spearman, 18-cv-0789-CAB-BGS, 2018 WL 6567881, at *7 (S.D. Cal. Dec. 13, 2018). Put differently, Kelly authorizes a stay only of fully exhausted petitions. See King, 564 F.3d at 1140 (“Rhines applies to stays of mixed petitions, whereas the three-step procedure [of Kelly] applies to stays of fully exhausted petitions.” (quoting Jackson, 425 F.3d at 661)).
While Kelly procedures ordinarily require a petitioner to voluntarily dismiss unexhausted claims from the petition himself by filing an amendment deleting the unexhausted claims, see King, 564 F.3d at 1135, the Court finds that, here, requiring Petitioner to file another amended petition deleting the unexhausted claims would be entirely unnecessary considering the original Petition on its face contains only exhausted claims. Thus, the Court construes Petitioner's original Petition (see ECF No. 1) as his Second Amended Petition, which, as mentioned below, is fully exhausted in accordance with Kelly procedures.
Accordingly, the Court GRANTS the Motion to the extent Petitioner seeks a stay pursuant to Kelly.
In so holding, the Court need not reach the question whether the unexhausted claims Petitioner intends to exhaust may later be presented in this federal habeas action by way of amendment. The Court will address that question if, and when, Petitioner seeks leave to present his newly exhausted claims to the Court via an amended federal petition pursuant to the Kelly procedure. However, Petitioner is warned that if he cannot demonstrate that the newly exhausted claims are timely or relate back to the original exhausted claims, he will be unable to litigate them in this Court.
IV. CONCLUSION
For the foregoing reasons, the Court ADOPTS IN ITS ENTIRETY the R&R. (ECF No. 12.) Specifically, the original Petition is constructively amended to add all four claims identified in Petitioner's Reply. Petitioner's request for a stay and abeyance of his “mixed” amended Petition is DENIED pursuant to Rhines v. Weber, 544 U.S. 269 (2005) and GRANTED pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1148-49 (9th Cir. 2007). Consequently, the Court construes the original Petition as Petitioner's Second Amended Petition, thereby releasing from the Court's jurisdiction the two unexhausted claims pending the Kelly stay.
The Court ORDERS the Clerk of Court to administratively close this case for the duration of the stay time.
By no later than 30 days of the California Supreme Court issuing an order resolving Petitioner's unexhausted claims, Petitioner shall file (1) a motion to lift the stay and (2) an amended writ of habeas corpus addressing the timeliness of his newly exhausted claims, together with a proposed amended petition.
IT IS SO ORDERED.