Opinion
3:19-cv-01132-MK
03-15-2021
SIR GIORGIO SANFORD CLARDY, Petitioner, v. BRANDON KELLY, Respondent.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE
Petitioner brings this habeas corpus action pursuant to 28 U.S.C. § 2254 and challenges his 2013 convictions for Tampering With a Witness and Tampering With Physical Evidence on grounds of prosecutorial misconduct, trial court error, and the ineffective assistance of counsel. Respondent moves to dismiss the Petition for lack of exhaustion, and, in response, petitioner moves to stay these proceedings and hold his Petition in abeyance until completion of his state post-conviction relief proceedings. For the reasons explained below, respondent's motion should be granted and petitioner's motion should be denied.
DISCUSSION
After trial by jury in March 2013, petitioner was convicted of three counts of Tampering With a Witness and one count of Tampering With Physical Evidence in Multnomah No. 12-08-33617. The trial court imposed consecutive sentences totaling sixty months of imprisonment and two years of post-prison supervision. Resp't Mot. Dismiss Att. 1 at 35-39 (ECF No. 19-1). Petitioner appealed, and the appeal was consolidated with his direct appeals in two related cases, Nos. 12-06-32917 and 12-07-33213. The Oregon Court of Appeals affirmed petitioner's convictions in No. 12-08-33617 and reversed and remanded in the other cases. See State v. Clardy, 286 Or.App. 745, 748, 401 P.3d 1188, adh'd to as modified on recon., 288 Or.App. 163, 406 P.3d 219 (2017), rev. den., 364 Or. 680, 439 P.3d 987 (2019). After the Oregon Supreme Court denied review, petitioner filed a state action for post-conviction relief (PCR) and challenged his convictions in No. 12-08-33617 on grounds of prosecutorial misconduct, newly-discovered evidence, trial court error, and ineffective assistance of counsel. Resp't Mot. Dismiss Att. 6-7. Petitioner's PCR proceeding remains pending.
No. 12-06-32917 was reversed and remanded for entry of judgment allowing demurrer. No. 12-07-33213 was remanded for resentencing and otherwise affirmed. Clardy, 286 Or.App. at 748.
In July 2019, petitioner filed this federal action challenging his convictions in No. 12-08-33617. Petitioner asserts four grounds for relief: prosecutorial misconduct, newly discovered evidence, ineffective assistance of trial counsel, and trial court error. Pet. at 5-12 (ECF No. 2). Respondent moves to dismiss the Petition because it includes unexhausted claims currently pending before the PCR court. See 28 U.S.C. § 2254(b)(1)(A) (requiring state prisoners to exhaust available state court remedies before seeking federal habeas relief); Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam) (to meet the exhaustion requirement, a petitioner must “fairly present” a federal constitutional claim to the State's highest court “in order to give the State the opportunity to pass upon and to correct alleged violations of its prisoners' federal rights”) (citation and quotation marks omitted).
At the time petitioner filed this action, he was in the physical custody of Multnomah County awaiting resentencing after remand in No. 12-07-33213. This case was stayed until petitioner returned to the physical custody of the Oregon Department of Corrections.
Petitioner states that he presented his claims of prosecutorial misconduct and trial court error to the Oregon Supreme Court through his direct appeal in No. 12-08-33617, and those claims arguably are exhausted. However, petitioner concedes that he did not present claims asserting the ineffective assistance of trial counsel and newly discovered evidence in his direct appeal, and those claims are currently pending in his PCR proceeding. Pet. at 6-12; Resp't Mot. Dismiss Att. 6. Thus, petitioner's federal Petition is “mixed, ” because it includes exhausted and unexhausted claims related to his convictions in No. 12-08-33617.
Petitioner also raised the same trial court error and prosecutorial misconduct claims in his state PCR petition. For purposes of this motion, I assume without deciding that petitioner exhausted these claims on direct appeal.
In Rose v. Lundy, 455 U.S. 509 (1982), the United States Supreme Court held that a petitioner must exhaust all federal claims before seeking federal habeas review, explaining that a “rigorously enforced total exhaustion rule will encourage state prisoners to seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error.” Lundy, 455 U.S. at 518-19. If a federal habeas petition includes exhausted and unexhausted claims, “a district court must dismiss such ‘mixed petitions,' leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court.” Id. at 510.
Instead of dismissal, petitioner requests that this Court, in accordance with the decision in Rhines v. Weber, 544 U.S. 269 (2005), stay the case and hold his Petition in abeyance until his PCR proceedings conclude and he meets the federal exhaustion requirement. See Pet'r Mot. to Reinstate Stay (ECF No. 20).
In Rhines, the United States Supreme Court considered whether a district court has discretion to stay a mixed petition rather than dismiss it. Rhines, 544 U.S. at 271. The Court noted that the 1996 enactment of a one-year statute of limitations for federal habeas petitions, when coupled with Lundy's “total exhaustion requirement, ” “dramatically altered the landscape for federal habeas corpus petitions.” Id. 274; see 28 U.S.C. § 2244(d)(1) (establishing a one-year statute of limitations to seek federal habeas review of state court convictions). The Court explained:
Although the limitations period is tolled during the pendency of a “properly filed application for State post-conviction or other collateral review, ” the filing of a petition for habeas corpus in federal court does not toll the statute of limitations[.] As 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. If a petitioner files a timely but mixed petition in federal district court, and the district court dismisses it under Lundy after the limitations period has expired, this will likely mean the termination of any federal review.Id. at 274-75 (citations omitted).
Recognizing “the gravity of this problem and the difficulty it has posed for petitioners and federal district courts alike, ” the Court held that district courts may adopt a “stay and abeyance” approach to mixed petitions. Id. at 275. “Under this procedure, rather than dismiss the mixed petition pursuant to Lundy, 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. Once the petitioner exhausts his state remedies, the district court will lift the stay and allow the petitioner to proceed in federal court.” Rhines, 544 U.S. at 275-56. The Court cautioned against employing stay and abeyance “too frequently” and instead found it appropriate only “in limited circumstances” when 1) “good cause” exists for the failure to exhaust, 2) the unexhausted claims are not “plainly meritless, ” and 3) the petitioner has not engaged in “abusive litigation tactics or intentional delay.” Id. at 277-278; see Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir. 2007).
In accordance with the Supreme Court's stated concern, federal courts typically issue a Rhines stay and hold mixed petitions in abeyance if the limitations period for federal habeas review could expire before the petitioner is able to fully exhaust federal claims. See Rhines, 544 U.S. at 275-77; see also Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (“A petitioner's reasonable confusion about whether a state filing would be timely [and toll the federal statute of limitations] will ordinarily constitute ‘good cause' for him to file in federal court.”); Jackson v. Roe, 425 F.3d 654, 660 (9th Cir. 2005).
In this case, petitioner does not risk running up against the statute of limitations before he fully exhausts his federal claims. The one-year statute of limitations for federal habeas petitions typically begins to run when the underlying state court judgment becomes final. See 28 U.S.C. § 2244(d)(1)(A). Further, as noted in Rhines, the limitations period is tolled during the time “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2).
The Oregon Supreme Court denied review in petitioner's direct appeal on March 28, 2019, and appellate judgment was entered on June 19, 2019. Resp't Mot. Dismiss Att. 3-5. Because petitioner sought review with the Oregon Supreme Court, his convictions became final when the ninety-day period for pursuing review in the United States Supreme Court expired. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). Thus, petitioner's convictions in No. 12-08-33617 became final on September 17, 2019, ninety days after appellate judgment entered, or at the earliest, on June 26, 2019, ninety days after the Oregon Supreme Court denied review.
On August 20, 2019, petitioner filed his PCR petition, which tolls the statute of limitations for his federal habeas petition. Resp't Mot. Dismiss Att. 6-7. If petitioner's conviction became final and the statute of limitations began to run on June 26, 2019, only fifty-five days will have elapsed when petitioner's PCR proceeding concludes. If petitioner's conviction became final on September 17, 2019, petitioner filed his PCR petition before the federal statute of limitations began to run. In other words, the statute of limitations has no chance of expiring before petitioner completes his PCR proceedings and exhausts all federal claims, and no confusion about the statute of limitations warrants a stay of this action pending exhaustion.
Petitioner does not dispute this point. Rather, petitioner seeks a stay and abeyance because his sentence in No. 12-08-33617 fully expired in August 2019, shortly after he filed his federal Petition, and he is no longer “in custody” for purposes of federal habeas review. See Pet'r Decl. in Supp. Mot. to Stay (ECF No. 21); Resp't Suppl. Mem. at 2 (ECF No. 22). The “in custody” requirement under § 2254 is “jurisdictional, ” and a petitioner “must be in custody at the time that the petition is filed.” Bailey v. Hill, 599 F.3d 976, 978-79 (9th Cir. 2010); 28 U.S.C. § 2254(a) (authorizing federal review of a habeas petition brought on “behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States”) (emphasis added). If the instant Petition is dismissed for lack of total exhaustion, petitioner would be foreclosed from seeking federal habeas review of his convictions in 12-08-33617 once he exhausts his claims. Petitioner thus seeks a stay of this action in order to preserve federal jurisdiction over his Petition until he exhausts his federal claims.
Petitioner presents no legal authority holding that the expiration of “in custody” status constitutes “good cause” to support a stay under Rhines, and the undersigned is aware of none. The “in custody” requirement for federal habeas review existed long before the statute of limitations was enacted, and the Supreme Court approved the Rhines stay-and-abeyance procedure solely to address the interplay between Lundy and the statute of limitations. See Maleng v. Cook, 490 U.S. 488, 490-92 (1989) (discussing the in custody jurisdictional requirement); Mena v. Long, 813 F.3d 907, 911 (9th Cir. 2016) (“When Lundy was decided, there was no need for the stay procedure set forth in Rhines - AEDPA's one-year statute of limitations had not yet been enacted.”). The Court did not extend application of a Rhines stay to other situations where dismissal of a mixed petition could foreclose federal habeas review.
Moreover, petitioner's unexhausted claims appear plainly meritless. For example, petitioner claims that newly-discovered evidence shows that police officers perjured themselves on the witness stand. Pet. at 7-8. Petitioner does not identify the “new” evidence or explain how the evidence establishes perjured testimony and how such testimony affected his trial. Further, petitioner raises several claims of ineffective assistance of counsel, including claims that trial counsel “created” a conflict of interest with petitioner. Id. at 9. However, the Oregon Court of Appeals recounted petitioner's threats to his attorney and the limitations placed on counsel's performance arising from petitioner's misconduct and tactics. See State v. Clardy, 286 Or.App. at 748-52, 401 P.3d 1188. In particular, the Court of Appeals explained that “on the first day of the tampering trial, when defendant was in jail shackles, defendant attempted to grab [counsel]'s necktie in what was an apparent attempt to injure his own lawyer. The [trial] court ordered that defendant be restrained to a chair because “he may very well attempt to head-butt [] his lawyer, or a witness or a juror…and possibly cause a basis for a mistrial through his behavior.'” Id. at 750, 401 P.3d 1188.
Accordingly, the circumstances here do not warrant a Rhines stay, and the mixed Petition must be dismissed unless petitioner withdraws his unexhausted claims. Olvera v. Giurbino, 371 F.3d 569, 573 (9th Cir. 2004) (“When faced with a mixed petition, the district court must always give the petitioner the option of either withdrawing unexhausted claims and proceeding only on exhausted claims, or of dismissing the entire mixed petition and returning to federal court with a new petition once all claims are exhausted.”).
CONCLUSION
Respondent's Motion to Dismiss (ECF No. 19) should be GRANTED and petitioner's Motions for Stay (ECF Nos. 20, 23) should be DENIED. Petitioner should be allowed to file an amended petition including only the exhausted claims of prosecutorial misconduct and trial court error relating to No. 12-08-33617. If petitioner declines to do so, this action should be DISMISSED without prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The parties may file specific written objections within fourteen (14) days from the date of service of a copy of this recommendation. If an objection is filed, any response to the objection is due within fourteen (14) days from the date of the objection. See Fed. R. Civ. P. 72. The parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).