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Chew v. Montgomery

United States District Court, Central District of California
Mar 30, 2021
2:21-cv-01667-MCS-MAA (C.D. Cal. Mar. 30, 2021)

Opinion

2:21-cv-01667-MCS-MAA

03-30-2021

GREGORY CHEW, Petitioner, v. W.L. MONTGOMERY, Respondent.


ORDER GRANTING MOTION FOR STAY AND ABEYANCE (JS-6)

MARIANA. AUDERO UNITED STATES MAGISTRATE JUDGE

I. INTRODUCTION

Pending before the Court is Petitioner's request for a stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005), while Petitioner finishes exhausting his claims in state court (“Request”). (Request, ECF No. 8.)

On February 15, 2021, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 (“Petition”). (Pet., ECF No. 1.) Petitioner challenges a judgment of conviction in Los Angeles County Superior Court for attempted murder. (See Id. at 1.) The trial court sentenced him to twenty-five years to life in state prison. (See id.)

Pinpoint citations in this Order refer to the page numbers appearing in the ECF-generated headers of the cited documents.

The Petition alleges four grounds for federal habeas relief, and each ground contains several sub-claims, some of which are difficult to follow. (Id. at 5-10.)

In Ground One, Petitioner claims as follows: “Brady violation judicial interference on judge denying my continue motion to get all the discovery.” (Id. at 5 (grammatical errors in original).) He provides the following factual allegations: “Fact (1) witheld exclpatory evidence key in my case no DNA or GSR”; “Fact (2) Rule 32 I am denying the right to speak at sentence”; “Fact (3) Remove of all black jury”; “Fact (4) Standby counsel interfered with my defense to help please his friend the prosecutor”; “Fact (5) Peace officer false testified”; “Fact (6) Denying my pro-per fund to call witnesses and to have pencils and paper the judge and her clerk.” (Id. (grammatical and spelling errors in original).)

In Ground Two, Petitioner claims as follows: “My standby counsel interfered with the key evidence in my case the drug sale murder tape of under age girl.” (Id. at 7.) He provides the following factual allegations:

Prosecutor add bad act witnesses 1 hr before pick the jury prosecutor file a 402 motion 1 hr before pick the jury not allow me to cross-examination the witnesses about the murder of a drug deal that day for a million dollars in cash robbery gang my public-defense remove discovery evidence in my favorable the GSR and the DNA report show I did not have a gun the judge is asleep after trial my public defense failed to let me and the courts know she represented my brother she waited two months.
(Id. at 7 (grammatical errors in original).)

In Ground Three, Petitioner claims as follows: “My appeal attorney failure to arguments the merit of the case.” (Id. at 8 (grammatical errors in original).) He alleges the following facts in support of this claim: “Fact (1) the judge [witnesses] violation of my 14 Amendment right to a fair trial”; “Fact (2) that the judge had acted like a prosecutor [rather] than as an independent arbiter [of] fact”; “Fact (3) withhold aids for my defense in pro per funds my appeal attorney had all this evidence in my case he choses to argue insufficient[.]” (Id. (grammatical errors in original).)

In Ground Four, Petitioner claims, “Rule (32) impeachment evidence, ” and alleges that “before imposing sentence the court must address the defendant personally in order to permit the defendant to speak or present any information.” (Id. at 10.)

On February 26, 2021, the Court issued an Order identifying two procedural defects with the Petition: (1) Petitioner failed to name the proper Respondent, as required for the Court's exercise of personal jurisdiction; and (2) it appeared that Petitioner had failed to exhaust his claims by raising them in the California Supreme Court (“February 26 Order”). (Feb. 26, 2021 Or., ECF No. 4.) The Court ordered Petitioner to file a response addressing these issues by March 29, 2021. (Id. at 3, 4-5.)

On March 8, 2021, the Court received and filed Petitioner's Reply to the Court's February 26 Order. (Reply, ECF No. 5.) In his Reply, Petitioner named W.L. Montgomery as the Warden of Calipatria State Prison. (Id. at 1.) He also stated that he filed the Petition in federal court because his criminal appeal attorney did not advise him regarding what court to file in (id.), and he attached excerpts from the state trial court transcripts that appear to be related to his habeas claims (id. at 2-34).

On March 22, 2021, the Court ordered Petitioner to show cause why the Petition should not be dismissed as wholly unexhausted because he has not yet presented his claims to the California Supreme Court (“March 22 Order”). (Mar. 22, 2021 Or., ECF No. 6.)

The Court gave Petitioner the opportunity to request a stay or explain why his claims were exhausted. (See March 22 Order.) Petitioner elected to file a request for a stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (Request.)

II. LEGAL STANDARD

A district court has discretion to stay a mixed petition and hold it in abeyance while the petitioner returns to state court to exhaust unexhausted claims. See Rhines v. Weber, 544 U.S. at 275-76. A stay is warranted if the district court determines: (1) there is “good cause” for the petitioner's failure to exhaust his claims earlier; (2) the unexhausted claims are not “plainly meritless”; and (3) the petitioner has not engaged in “abusive litigations tactics or intentional delay.” Id. at 277-78; accord Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017).

III. DISCUSSION

For the reasons discussed below, a Rhines stay is appropriate.

First, the record demonstrates good cause for Petitioner's failure to exhaust his claims earlier. “[G]ood cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify” a failure to exhaust his claims in state court. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “The caselaw concerning what constitutes ‘good cause' under Rhines has not been developed in great detail.” Dixon, 847 F.3d at 720. Nevertheless, the Ninth Circuit established in Dixon that a petitioner may establish good cause by showing that he was not represented in state post-conviction habeas proceedings. See Id. at 722 (noting that “the first element of the Rhines test can easily be established” by federal habeas petitioners “to the extent that they were without counsel” in state post-conviction proceedings).

Here, it appears from the record that Petitioner was not represented by counsel during his state post-conviction proceedings. The Los Angeles Superior Court docket states that Petitioner's habeas corpus petition was filed pro se. (See Pet. 31.) Petitioner also states that his criminal appeal attorney, Alex Green, would not file a habeas corpus petition on his behalf. (Id. at 11.) In his Request, Petitioner states that he is not receiving any legal advice and asserts that the “prison law library is no help.” (Request 1.) “A petitioner who is without counsel in state post-conviction proceedings, ” such as Petitioner, “cannot be expected to understand the technical requirements of exhaustion and should not be denied the opportunity to exhaust a potentially meritorious claim simply because he lacked counsel.” Dixon, 847 F.3d at 721. Further, the Supreme Court has held that “[a] petitioner's reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause' for him to file” a “protective” petition in federal court. Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Bearing in mind that “[t]he good cause element is the equitable component of the Rhines test, ” Blake, 745 F.3d at 982, the Court concludes that good cause appears for Petitioner's failure to exhaust.

Second, the Court cannot conclude that the unexhausted ineffective assistance claim is not “potentially meritorious.” Rhines, 544 U.S. at 278 (emphasis added). The Court cannot determine at this time that these allegations are so devoid of merit that “it is perfectly clear that [Petitioner] has no hope of prevailing.” Dixon, 847 F.3d at 722 (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005)). Although it remains unclear at this stage whether Petitioner's claims eventually will warrant federal habeas relief, Petitioner has satisfied the less demanding standard to obtain a Rhines stay. See Id. at 723 (reasoning that a habeas petitioner's burden to show a claim is not “plainly meritless” does not require him to “conclusively establish” that his claim has merit).

Third, there is no evidence to suggest that Petitioner has engaged in abusive litigation tactics or intentional delay. Indeed, Petitioner appears to be proceeding in good faith, and has already begun the process of exhausting his claims in state court by filing a habeas corpus petition in the Los Angeles County Superior Court.

For the foregoing reasons, the Court finds it appropriate to exercise its discretion to grant Petitioner's motion for a Rhines stay. See Rhines, 544 U.S. at 278 (noting that “it likely would be an abuse of discretion for a district court to deny a stay” when all three factors are met).

For the foregoing reasons, the Court finds it appropriate to exercise its discretion to grant a Rhines stay. See Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005) (noting that where the Rhines prerequisites are satisfied, “it likely would be an abuse of discretion for a district court to deny a stay”).

IV. ORDER

It is ordered as follows:

1. Petitioner's request for a Rhines stay (ECF No. 8) is GRANTED. The Clerk is DIRECTED to administratively close the case (JS-6).

2. Within sixty (60) days after the service date of this Order, Petitioner shall file a status report in which he gives an update about the progress of Petitioner's habeas petitions in the California courts. Petitioner shall file further status reports, if necessary, every sixty (60) days thereafter. A request for an extension of time will be granted only upon a showing of good cause.

3. Upon the filing of a habeas petition in the California Supreme Court, Petitioner shall lodge a copy of any such petition in this Court.

4. Upon the issuance of a decision by a California Supreme Court, Petitioner shall lodge a copy of the same with this Court.

5. Within thirty (30) days after the California Supreme Court's ruling on Petitioner's habeas petition, Petitioner shall serve and file a notice specifying the exhausted claims on which she wishes to proceed.

6. Once Petitioner files the notice specified above, the Court will issue further orders as appropriate.


Summaries of

Chew v. Montgomery

United States District Court, Central District of California
Mar 30, 2021
2:21-cv-01667-MCS-MAA (C.D. Cal. Mar. 30, 2021)
Case details for

Chew v. Montgomery

Case Details

Full title:GREGORY CHEW, Petitioner, v. W.L. MONTGOMERY, Respondent.

Court:United States District Court, Central District of California

Date published: Mar 30, 2021

Citations

2:21-cv-01667-MCS-MAA (C.D. Cal. Mar. 30, 2021)