Opinion
CV-23-08516-PCT-GMS (DMF)
02-12-2024
Anthony Charles Hall, Petitioner, v. Ryan Thornell, et al., Respondents.
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
I. PROCEDURAL POSTURE
Petitioner Anthony Charles Hall (“Petitioner” or “Hall”) filed a pro se Amended Petition for Writ of Habeas corpus pursuant to 28 U.S.C. § 2254 (“Amended Petition”) (Doc. 5), which the Court ordered Respondents to answer (Doc. 7). The Amended Petition is directed to Petitioner's manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382), for which Petitioner was sentenced to a 26.5-year combined term of imprisonment (Doc. 5). This matter is on referral to the undersigned for further proceedings and a report and recommendation pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 7 at 5).
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-23-08516-PCT-GMS (DMF).
This Report and Recommendation is directed to Respondents' Motion For Stay And Resetting Of Filing Deadline For Answer To Amended Petition For Writ Of Habeas Corpus (Doc. 13). The time for response has passed without a response being filed.
At the start of their motion, Respondents state that they “have determined that the petition either contains entirely unexhausted claims, or a mix of exhausted and unexhausted claims” (Doc. 13 at 1). Respondents further explain in their motion:
Hall asserts four claims in his amended petition based on violations of his Fourth, Fifth, Sixth, Seventh, and Fourteenth Amendment rights to due process, effective assistance of counsel, an impartial jury, equal protection, “denial of prosecutorial misconduct[, and everything.” Dkt. 5 at 6-13. Underlying these broad assertions appear to be claims (1) challenging the sufficiency of the evidence and accusing law enforcement of perjury and tampering with the evidence (id. at 6-7); (2) contending insufficient investigation by law enforcement regarding alleged mistaken identity of the victim and accusing the victim's former roommate and her associates of killing the victim (id. at 8-9); (3) asserting ineffective assistance of trial counsel and again challenging the sufficiency of the evidence (id. at 10-11); and (4) accusing the prosecutor of multiple instances of misconduct and concealing of evidence (id. at 12-13).
None of these claims have been presented to the Arizona Court of Appeals as required by Castillo, 399 F.3d at 998, n.3, and Swoopes, 196 F.3d at 101011. Hall challenged only the propriety of his sentences on direct appeal. Exh. A at ¶¶ 1, 12.
Accordingly, Hall's habeas petition contains completely unexhausted claims. This Court should therefore stay the habeas petition until Hall concludes his state PCR proceedings. A stay is also appropriate because Hall's PCR proceedings are still in their infancy and there is a possibility that his conviction or sentence may be reversed on grounds other than those raised in the habeas petition. See Sherwood, 716 F.2d at 634.
Rather than ask this Court to dismiss Hall's pending habeas petition for failure to exhaust state remedies, see id. (affirming district court's dismissal of habeas petition for failure to exhaust state remedies where state court appeal was pending), Respondents instead request a stay of the instant proceeding and an order resetting the filing deadline for Respondents' answer to 40 days from the date on which Hall notifies this Court and Respondents that his State PCR proceedings have concluded. Respondents request that Hall file the notice alerting the Court about the final disposition because he will receive notification from the state court when it has reached
a final decision.(Doc. 13 at 4-5).
II. DISCUSSION
A. Applicable Law
It is well-established that a “state prisoner must normally exhaust available state remedies before a writ of habeas corpus can be granted by the federal courts.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (“It has been settled since Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886), that a state prisoner must normally exhaust available state judicial remedies before a federal court will entertain his petition for habeas corpus.”); 28 U.S.C. § 2254(b)(1). As a matter of comity, a federal court will not entertain a habeas petition unless the petitioner has exhausted the available state judicial remedies on every ground presented in it. See Rose v. Lundy, 455 U.S. 509 (1982); see also Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (affirming district court's dismissal of habeas petition for failure to exhaust state remedies where state court appeal was pending).
If an appeal or collateral-review proceeding is pending in state court, a petitioner has not exhausted his state remedies until the completion of those proceedings. See Sherwood, 716 F.2d at 634; 28 U.S.C.A. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”). Except for cases involving a life sentence or the death penalty, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Castillo v. McFadden, 399 F.3d 993, 998 n. 3 (9th Cir. 2004) (quoting Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999)). Here, Petitioner's collateral review proceedings are pending in superior court, appear to be timely, and still need to proceed through the superior court and the Arizona Court of Appeals for exhaustion.
A petitioner may be relieved of obligation to exhaust the petitioner's claims in state court if the petitioner cannot present his claim because there is an absence of available state corrective process or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b)(1)(B)(i)-(ii). A petitioner may be relieved of the requirement to exhaust state remedies “in rare cases where exceptional circumstances of peculiar urgency are shown to exist.” Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir. 1993); see also Urquhart v. Brown, 205 U.S. 179, 182 (1907) (a federal court may “sometimes appropriately interfere by habeas corpus in advance of final action by the authorities of the [s]tate,” but such cases are “exceptional” and of “great urgency”).
Exceptional circumstances have been found in cases that “involved interferences by the state authorities with the operations of departments of the general government” or “concerned the delicate relations of that government with a foreign nation.” United States ex. rel. Kennedy v. Tyler, 269 U.S. 13, 19 (1925); see also Cunningham v. Neagle, 135 U.S. 1 (1890) (affirming federal court's issuance of writ of habeas corpus that discharged U.S. deputy marshal from state custody on a homicide charge where the homicide was committed while the deputy marshal was performing his duty to protect Justice Field).
When any or all claims in a petition are unexhausted claims with state remedy still available, the district court has discretion to enter a stay of the proceedings. See Rhines v. Weber, 544 U.S. 269 (2005) (stays of “mixed” petitions); Mena v. Long, 813 F.3d 907 (9th Cir. 2016) (Rhines applies to stays of fully unexhausted petitions).
“Once a district court determines that a habeas petition contains only unexhausted claims, it need not inquire further as to the petitioner's intentions. Instead, it may simply dismiss the habeas petition for failure to exhaust.” Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). When a petition's claims are unexhausted claims with state remedy still available, the petition should be dismissed without prejudice, not with prejudice, if the petition is dismissed rather than stayed. See Rhines v. Weber, 544 U.S. at 274; Rose, 455 U.S. at 509.
In Rhines, the Court held that the discretion to stay was properly exercised in limited circumstances:
[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless.544 U.S. at 277. A district court “should stay, rather than dismiss, the mixed petition” where the petitioner shows: (1) “good cause for [the] failure to exhaust,” (2) the unexhausted claims are “potentially meritorious,” and (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Id. at 278. The “good cause” requirement does not require a showing of “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005); see Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005) (reasonable confusion regarding the timeliness of a state filing ordinarily constitutes good cause for stay purposes). In Rhines, the Court found that the intervening expiration of the habeas statute of limitations called for exercising discretion to stay the habeas proceedings.
B. Analysis
Although a federal court may relieve a petitioner of the exhaustion requirement in certain limited circumstances, none of those circumstances exist in this case. In reviewing the record in this matter, including the Amended Petition (Doc. 5), Petitioner has not shown that this is a rare case involving exceptional circumstances that warrant interference by this Court in a matter pending in state court. Further, there is not an absence of state corrective procedures. Petitioner has filed his PCR proceedings in state court, the superior court appointed Petitioner counsel, and a deadline has been set for filing a PCR petition later this month after several extensions of time for filing such were granted to allow counsel appropriate time to review the record and prepare the PCR petition. Petitioner has not shown that there has been delay in the resolution of the of-right PCR proceeding so extreme or unusual that it would render the state corrective process ineffective. See, e.g., Phillips v. Vasquez, 56 F.3d 1030, 1038 (9th Cir. 1995) (delay of fifteen years, within “no end in sight”); Coe v. Thurman, 922 F.2d 528, 531 (9th Cir. 1990) (discussing due process violation from delay of more than three years in appellate proceeding); Hamilton v. Calderon, 134 F.3d 938, 939 (9th Cir. 1998) (less than two year period during which petitioner's sentence was under review by the California Supreme Court did not constitute extreme delay warranting federal intervention).
Thus, the Court's alternatives are dismissal without prejudice or a stay of these proceedings pending conclusion of Petitioner's state court PCR proceedings relating to his manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382).
Respondents are correct that the Amended Petition “either contains entirely unexhausted claims, or a mix of exhausted and unexhausted claims” (Doc. 13 at 1). The Court finds it is difficult to discern at this stage of briefing and available record whether the Amended Petition's claims are entirely unexhausted or a mix of unexhausted claims and technically exhausted (unexhausted but procedurally defaulted) claims. Respondents are also correct regarding the procedural history and posture of Petitioner's state PCR proceedings (Doc. 13; Doc. 13-1). Here, Petitioner has not yet had the benefit of fully litigating his first state PCR proceeding, at which any claims of ineffective assistance (as well as other types of claims) may be raised. Petitioner's counseled PCR petition is due on February 16, 2024 (Doc. 13-1 at 39). Applying the Rhines factors to these circumstances, there is no indication that Petitioner engaged in intentionally dilatory litigation tactics, the unexhausted claims are potentially meritorious because the state PCR proceedings appear to be an appropriate forum to raise ineffective assistance of counsel and some other types of claims, and good cause for Petitioner's failure to exhaust is evident insofar as Petitioner's pursuit of his state PCR proceedings but confusion about the status of such and lack of control over the multiple extensions of time requested by his appointed counsel to file a PCR petition (Doc. 5 at 5, 15; Doc. 13-1 at 25-39). Given such, exercise of the Court's discretion to stay these proceedings is appropriate regardless of whether or not the Amended Petition contains fully unexhausted claims or is a mixed petition of unexhausted and technically exhausted claims. See Rhines, 544 U.S. at 278; Mena, 813 F.3d at 907.
Further, while there is a possibility (even probability) that Petitioner's state PCR proceedings were timely and properly filed, thus statutorily tolling AEDPA's limitations period during their pendency (see 28 U.S.C. § 2244(d)(2)), there is not indication in this record that a state court has determined the PCR proceedings to be timely and properly filed. The possibility of a statute of limitations issue if the matter is dismissed without prejudice and later refiled weighs strongly in favor of granting a stay. This is underscored by Petitioner's statements in the Amended Petition indicating his difficulties in filing these habeas proceedings (Doc. 5 at 15).
III. CONCLUSION
Petitioner's Amended Petition presents unexhausted claims, and it is difficult to discern whether the Amended Petition's claims are entirely unexhausted or a mix of unexhausted and technically exhausted claims. Under the applicable law, it is recommended that the Court exercise its discretion to grant the requested stay. An alternative would be to dismiss the Amended Petition and these proceedings without prejudice because the pending state PCR proceedings statutorily toll the limitations period if they were timely filed. Nevertheless, in the Amended Petition, Petitioner described difficulties in his filing these habeas proceedings (Doc. 5 at 15). Given such, a stay rather than dismissal without prejudice will avoid statute of limitations issues from a renewed filing of habeas proceedings after Petitioner's state court PCR proceedings relating to his manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382) have concluded.
While the state court PCR proceedings appear to have been timely filed, that is a question that the state court has not yet expressly addressed. If the state court finds the PCR proceedings untimely filed, then dismissal of these proceedings will create statute of limitations issues for Petitioner. See Lundy, 455 U.S. at 522 (the exhaustion requirement was not intended to “unreasonably impair the prisoner's right to relief”).
Accordingly, for the reasons set forth above, IT IS RECOMMENDED that Respondents' Motion For Stay And Resetting Of Filing Deadline For Answer To Amended Petition For Writ Of Habeas Corpus (Doc. 13) be granted.
IT IS FURTHER RECOMMENDED that this matter be stayed through the conclusion of Petitioner's state court PCR proceedings relating to his manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382) and that the Clerk of Court be directed to indicate on the docket that this case is stayed.
IT IS FURTHER RECOMMENDED that Respondents' answer to the Amended Petition (Doc. 5) be due forty (40) days from Petitioner's status report reflecting that his state court PCR proceedings relating to his manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382) have concluded.
IT IS FURTHER RECOMMENDED that Petitioner shall file a status report entitled “Notice of Status” with the Court within ninety days after this Order and within every sixty days thereafter regarding the status of his state court PCR proceedings relating to his manslaughter and theft of means of transportation convictions in Mohave County Superior Court (case number CR2021-00382).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.