Opinion
Case No.: 15cv704-BEN(WVG)
02-03-2016
EBRAHIM MUSSA MOHAMED, Petitioner, v. CYNTHIA TAMPKINS, Respondent.
REPORT AND RECOMMENDATION DENYING MOTION TO STAY
I. INTRODUCTION
On March 30, 2015, Ebrahim Mussa Mohamed ("Petitioner"), a California state prisoner, filed a Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254 challenging his San Diego Superior Court conviction for five counts of assault with a deadly weapon and one count of stalking. (Doc. No. 1.) Petitioner challenges his state court conviction on four distinct grounds. He contends that (1) the Trial Court erred by not obtaining Petitioner's express waiver of right to testify; (2) Petitioner had ineffective assistance of appellate counsel; (3) ineffective assistance of trial counsel; and that (4) Petitioner was given an "illegal sentence" by being charged with a crime unsupported by some of the evidence. (Doc. No. 1.) The Petition acknowledges that of the four claims, only the first has been properly exhausted. (Doc. No. 1 at 6-9.) Petitioner filed the instant Motion to Stay ("Motion") his federal proceeding while he attempts to exhaust his three unexhausted claims. (Doc. No. 2.) Respondent Cynthia Tampkins ("Respondent") timely filed an opposition. (Doc. No. 7.) Petitioner did not file a reply. Having reviewed all of the briefing submitted by the parties, and for the reasons set forth below, the Court RECOMMENDS that Petitioner's Motion be DENIED.
II. PROCEDURAL OVERVIEW
On March 30, 2015, Petitioner filed a Petition for Writ of Habeas Corpus in this Court. (Doc. No. 1.) Petitioner simultaneously filed a Motion to Stay. (Doc. No. 2.) The Petition was dismissed without prejudice, allowing Petitioner until June 15, 2015, to submit proof of his inability to pay filing fees. (Doc. No. 3.) Petitioner filed a Motion for Leave to Proceed In Forma Pauperis on May 20, 2015. (Doc. No. 4.) The Court reopened his matter and granted that motion. (Doc. No. 5.) On June 3, 2015, Petitioner renewed the instant Motion seeking to stay his Petition to allow him time to exhaust his claims. (Doc. No. 9.) On September 9, 2015, Respondent opposed Petitioner's motion. (Doc. No. 7.) Nearly a month later, Petitioner requested an extension by which he could file a reply. (Doc. No. 11.) Although the Court granted Petitioner a month extension to November 5, 2015, to enable him to file his reply, Petitioner failed to file a reply. (Doc. No. 12.)
III. LEGAL STANDARD
The Petition includes both exhausted and unexhausted claims. Typically, a federal court may not consider a petition for habeas corpus unless the petitioner first exhausts his claims in state court. 28 U.S.C. § 2254(b)(1)(A); Castille v. Peoples, 489 U.S. 346, 349 (1989); Rose v. Lundy, 455 U.S. 509, 522 (1982) (ruling that "mixed petitions," i.e. those containing both exhausted and unexhausted claims, must be dismissed); see also Rhines v. Weber, 544 U.S. 269, 274-78 (2005). However, under limited circumstances, if a petitioner files a "mixed" habeas petition, he may request the petition be stayed and held in abeyance while he pursues his remaining unexhausted claims in state court. There are two alternative procedures that a petitioner may pursue in order to obtain a stay. The first is set forth in Kelly v. Small; the other is set forth in Rhines v. Weber. See Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007); see also King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009) (ruling the Kelly procedure remains available); see also Rhines v. Weber, 544 U.S. 269, 274-78 (2005). Petitioner argues both the Kelly standard and Rhines procedure and attempts to argue that he complies with each standard. Each is discussed in turn below.
The Ninth Circuit has held that both avenues are to a petitioner. See King v. Ryan, 564 F.3d 1133, 1143 (9th Cir. 2009) (Holding that despite the Rhines decision, the earlier decided "three-step stay-and-abeyance procedure outlined in Kelly remains available.")
IV. LEGAL ANALYSIS
a. The Kelly Procedure
The stay and abeyance procedure set forth in Kelly v. Small requires the following three-step process: "(1) the petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition." King, 564 F.3d at 1135; see also Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). Here, Petitioner's Motion to Stay references the stay and abeyance procedure outlined in Kelly. (Doc. No. 2 at 1 stating the "Petition satisfies 'Kelly vs Small'(sic); Mayle v. Felix".) Although Petitioner outlines the three-step process required to invoke the Kelly procedure, he has not followed the necessary steps, nor does he express any intent to do so. (Doc. No. 2 at 2.) Contrary to the requirements outlined in Kelly, Petitioner has neither submitted an amended Petition devoid of any unexhausted claims, nor has he requested that the Court dismiss his unexhausted claims. See King, 564 F.3d at 1135 (noting that a petitioner requesting the court dismiss unexhausted claims in order for petitioner to pursue the unexhausted claims in state court may be enough to invoke the Kelly procedure).
Even if Petitioner were to invoke the Kelly procedure, a petitioner is only allowed to add his newly-exhausted claims if the newly-exhausted claims are timely under the Anti- Terrorism and Effective Death Penalty Act ("AEDPA") or relate back to the previously exhausted claims. See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009). "[A] new claim does not "relate back" to the filing of an exhausted petition simply because it arises from 'the same trial, conviction, or sentence.'" Id. quoting Mayle v. Felix, 545 U.S. 644, 662-64 (2005). Rather, a petition relates back where it rests on the same or a similar set of facts. For example, in Marquez v. Rawers, the petitioner attempted to challenge the Governor's decision to deny him parole. 2008 WL 704298, No. CV-F-03-6508 (E.D. Cal. Mar. 4, 2008). The petitioner's first habeas petition was timely exhausted and alleged that his parole denial was based on insufficient evidence. Id. at *7. The second habeas petition was not timely exhausted, and, alleged that the Governor's decision to deny him parole constituted an ex post facto violation. Id. The District Court found that the second petition related back to the first petition because the petitioner "challenge [d] one action (the denial of parole) taken by one actor (the Governor)." Id. The District Court contrasted this to the facts presented in Mayle v. Felix, where the petitioner sought to relate unexhausted claims challenging the petitioner's out of court interrogation responses to exhausted claims challenging an out of court statement made by a third party witness. Id. There, the District Court explained, the claims involved "a completely different set of facts." Id.
Even if Petitioner were to seek a Kelly stay, the Court questions whether Petitioner would ultimately succeed in amending his petition to include the three presently unexhausted claims. It appears that Petitioner has already surpassed the AEDPA statute of limitations as the Petition was filed nearly fifteen months after his state court case became final. Thus, any amendments would likely be untimely unless they relate back to Petitioners' sole exhausted claim. See id. 1142.
Petitioner's appeal in the California Supreme Court was finalized on January 21, 2014. The filing of a petition for federal habeas corpus relief does not toll AEDPA's statute of limitations (unlike an application for state habeas corpus relief, which does). See Duncan v. Walker, 533 U.S. 167, 172 (2001). Petitioner filed his petition in this Court on March 30, 2015. Petitioner had only one year and ninety days to timely file claims in this Court. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir. 1999) ("When a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA's one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires.") All claims should have been exhausted and filed on or before April 21, 2015. As discussed herein, Petitioner has only filed one exhausted claim before this Court before this date.
A comparison between Petitioner's claims reveals that the three unexhausted claims do not stem from the same set of facts as Petitioner's sole exhausted claim. Petitioner's singular exhausted claim alleges that the Trial Court erred by failing to obtain Petitioner's express waiver of his right to testify. (Doc. No. 1 at 6.) In stark contrast, Petitioner's remaining three claims do not even reference Petitioner's express waiver of his right to testify. Instead, each purports to be a new claim arising out of Petitioner's representation at both the trial and appellate phases, and challenging the evidence supporting Petitioner's ultimate sentence.
For sake of illustration, the Court reviews each of the unexhausted claims in comparison to Petitioner's single exhausted claim. Petitioner's exhausted claim alleges that the Trial Court failed to obtain an express waiver of Petitioner's right to testify. The appellate court decision frames the issue as "the Trial Court's error" and finds that the evidence presented was a sufficient basis for the Trial Court to "reasonably conclude [Petitioner] Mohamed implicitly waived his right to testify at trial." (App. Ct. Dec., at 4-6.) Nothing in the decision refers to a claim against his trial counsel. Rather the Court cites to the record that demonstrated "outside the jury's presence during trial, Mohamed was present when his counsel agreed with the Trial Court that if he (Mohamed) testified, his prior stalking conviction would be admissible for impeachment purposes. At that time, Mohamed made no statement indicating he wanted to testify." Id. at 4.
"Mayle requires a comparison of a petitioner's new claims to the properly exhausted claims left pending in federal court." King, 564 F.3d at 1142.
The Court located the state appellate court decision via the online state court records available at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=41&doc_id=2021352&doc_no=D062414.
The California Court of Appeal decision notes that Petitioner has a prior conviction for stalking and has been convicted of a prior strike. (App. Ct. Dec., at 3.)
In stark contrast to Petitioner's exhausted claim, are Petitioner's unexhausted claims. Petitioner alleges ineffective of assistance by his trial counsel. Notably, Petitioner makes no argument that his trial counsel was ineffective because she did not warn him about the impact of his own refusal to testify. Instead, Petitioner alleges that his trial counsel was ineffective because trial counsel failed to (1) fully inform Petitioner of the pending charges; (2) fully investigate the case; (3) negotiate a plea bargain; and (4) because trial counsel was vindictive in representing Petitioner. (Doc. No. 2 at 18-23.) Much of Petitioner's claim attacks his trial counsel's failure to locate exculpatory third party witnesses. He claims that she failed to "investigate the possibilities that the prosecutions (sic) witnesses were coersed (sic) by police personnel." (Doc. No. 1 at 7:13-16.) He also claims that his attorney failed to obtain statements from the "victim, who was definitely for the defense." (Id. at 10:28-11:2.) Petitioner contends that "phone calls were made by Defendant. It was nothing to get that witness to turn on the DA and back the Defendant." (Id. at 11:2-5.) Nothing in Petitioner's argument references his own failure to testify, nor does he claim that his counsel influenced his decision not to testify.
As summarized by the California Court of Appeal Petitioner's conviction stems from five accounts of assault with a deadly weapon and one of stalking against his ex-girlfriend. The victim was interviewed by police, who determined that she "feared for her life." (App. Ct. Dec., at 3.) According to documents and transcripts attached to the Petition, at the preliminary hearing Petitioner admitted to receiving a phone call with Petitioner from prison. (Doc. No. 1 at 50-90.) At the preliminary hearing, the victim also recanted and refuted much of the information she had earlier shared with the police and the detective. She informed the Trial Court that Petitioner had apologized, and said "he would be different." Id. at 61:2-17.) --------
Petitioner also claims that his appellate counsel was ineffective. In this claim, Petitioner contends that his appellate counsel failed to argue the many ways the trial counsel was ineffective. (Doc. No. 2 at 13-17.) As above, Petitioner makes no reference to his failure to testify at his trial.
Petitioner's final unexhausted claim, which he characterizes as "Illegal Sentence," sets forth Petitioner's belief that he was charged with an incorrect crime unsupported by the evidence elicited at trial. In this claim, Petitioner argues the evidence presented did not support the charges or ultimate sentence. (Doc. No. 2 at 24-27.) He points to testimony by the victim at the preliminary hearing refuting the information in the police files. (Id.) However, nothing pertains to any argument that if Petitioner had testified, the sentence would have been impacted. Accordingly, the Court finds that as presently alleged, none of Petitioner's three unexhausted claims relate to, or even reference his exhausted claim that the Trial Court erred by not obtaining Petitioner's express waiver of his right to testify. Thus, even though Petitioner does not invoke the Kelly procedures, it is highly doubtful that an attempt by Petitioner to file an amended petition under Kelly would be successful as his unexhausted claims appear time barred.
b. The Rhines Procedure
According to Rhines, a District Court may stay and hold in abeyance a "mixed" habeas petition to allow a petitioner time to return to state court and pursue unexhausted claims. Rhines, 544 U.S. at 276. This is available when (1) the petitioner has good cause for failing to exhaust all claims; (2) the petitioner's unexhausted claims are potentially meritorious; and (3) the petitioner did not intentionally engage in dilatory litigation tactics. Id. at 277-78. Petitioner's declaration accompanying the Motion indicates that he seeks to utilize the stay and abeyance procedure set forth in Rhines and argues that he satisfies the three required elements. (See Doc. No. 9 at 7) (arguing that "circumstances beyond ones control" is good cause for delay); (Doc. No. 9 at 5) (arguing that Petitioner's ineffective assistance of counsel claims are meritorious).
Petitioner contends there is good cause for the stay. Good cause "turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence," to justify the failure to exhaust all claims in state court. Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). The Court must interpret whether a petitioner has "good cause" for a failure to exhaust in light of the Supreme Court's instruction in Rhines that the District Court should only stay mixed petitions in "limited circumstances." Jackson v. Roe, 425 F.3d 654, 661 (9th Cir. 2005). As noted by the Ninth Circuit in Wooten v. Kirkland, the Court "must be mindful that AEDPA aims to encourage the finality of sentences and to encourage petitioners to exhaust their claims in state court before filing in federal court. " Wooten v. Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (quoting Rhines, 544 U.S. at 276-77).
Petitioner claims that there is good cause to grant a stay because his appellate counsel "failed to inform him of the California Supreme Court's decision" denying his Petition for Review in January 2014, and also failed to notify him of the requirements of AEDPA. (Doc. No. 9 at 4.) However, Petitioner makes no attempt to explain why he delayed from his trial date in 2013 to bring claims regarding his trial counsel or the ultimate sentence he was issued. The law requires Petitioner to pursue claims of ineffective assistance of counsel diligently, and absent good cause, a stay will not issue. See Frluckaj v. Small, 2009 WL 393776, at * 5-6 (C.D. Cal. Feb. 17, 2009) (finding that where petitioner was aware of a particular claim and could have presented it to state courts before filing federal habeas petition, petitioner had not shown "good cause" under Rhines); Smith v. Horel, 2008 WL 2038855, at *5 (C.D. Cal. May 8, 2008) (finding no good cause for petitioner's failure to exhaust a claim where "[t]rial counsel's alleged deficient performance was known or should have been known to Petitioner during or shortly after his trial").
Moreover, as present in this case, courts will not relax the strict requirements of the law merely because Petitioner is self-represented or ignorant of the law requiring him to file within the required timeframe. See e.g., Hernandez v. California, 2010 WL 1854416, at *2-*3 (N.D. Cal. May 6, 2010) (concluding that limited education, lack of legal assistance, and routine restrictions on law library access were insufficient to satisfy the Rhines good cause requirement); Hamilton v. Clark, 2010 WL 530111, at *2 (E.D. Cal. Feb.9, 2010) ("Ignorance of the law and limited access to a law library are common among pro se prisoners and do not constitute good cause for failure to exhaust."); Barno v. Hernandez, 2009 WL 2448435, at *6-*7 (S.D. Cal. Apr.17, 2009) (limited library access, and lack of legal knowledge and literacy do not establish good cause); Smith v. Giurbino, 2008 WL 80983, at *2 (S.D. Cal. Jan.7, 2008) (holding that "lack of legal knowledge and self-representation do not, in and of themselves, constitute good cause."); Calvert v. Daniels, 2006 WL 2527639, at *2 (E.D. Wash. Aug.28, 2006) ("The Court finds that the mere fact that a petitioner is acting pro se or lacks knowledge of the law does not establish 'good cause' under Rhines"); Riseley v. Warden, Pleasant Valley State Prison, 2006 WL 1652657, at *2 n. 3 (E.D. Cal. June 14, 2006) ("The mere fact that a petitioner is pro se or lacks knowledge of the law is insufficient to satisfy the cause prong.").
Petitioner's only argument to support good cause points to information that his appellate attorney purportedly failed to provide him. However, Petitioner makes no attempt to explain his own lack of diligence to bring his claims against his trial counsel or challenge his sentence as illegal. His claims for ineffective assistance of appellate counsel relate to his appellate lawyer's failure to raise issues against his trial counsel in his appeal - a claim he must have known about when he reviewed his appeal. Whether Petitioner's appellate counsel notified him of the Supreme Court's decision in January 2015 or not, Petitioner was aware of each of his three unexhausted claims well before that date. Moreover, simple ignorance of the one year statute of limitations does not excuse Petitioner's noncompliance. Accordingly, the Court cannot find that there is "good cause" to grant a stay.
Petitioner also argues that his claims are meritorious and therefore merit a stay under Rhines. The Court disagrees. In order to demonstrate ineffective assistance of trial counsel, petitioner must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that is "outside the wide range of professionally competent assistance." Id. at 689. Prejudice requires "showing that counsel's errors were so serious as to deprive [a criminal] defendant of a fair trial, a trial whose result is reliable." Id. at 687. Counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Petitioner's second claim merely attacks his appellate counsel as ineffective for failing to argue the many ways the trial counsel was ineffective. (Doc. No. 2 at 13-17.) Petitioner's third claim alleges many of the same deficiencies, but directly against trial counsel claiming that trial counsel failed to (1) fully inform Petitioner of the pending charges; (2) fully investigate the case; (3) negotiate a plea bargain; and (4) that trial counsel was vindictive in representing Petitioner. (Doc. No. 2 at 18-23.) The Petition includes incomplete, and at times, unidentified transcripts, but Petitioner's Motion does not cite specific portions of the transcripts. If anything, the transcripts demonstrate that he was unable to convince the Trial Court his trial counsel was ineffective - he states that his attorney "apparently did not care about this case. She just took me to trial." (Doc. No. 1, 49:14-15.) However, upon questioning, his trial counsel confirmed that Petitioner "would not enter into a time waiver," and "said under no circumstances would he waive his right to a speedy trial." (Doc. No. 1, 44:7-45:7.)
Petitioner claims that two days into trial, before a verdict was reached, trial counsel told him to return for sentencing, presumably implying trial counsel's lack of confidence in a favorable outcome and corresponding lack of effort on her part to represent him. (Doc. No. 1, 37:24 - 38:19.) However, the Trial Court expressed skepticism and indicated a general disbelief at Petitioner's contention. (Doc. No. 1, 38:22.) When questioned, Petitioner's trial counsel explained that she told Petitioner he would "have to come back [to court] as long as the jury is deliberating ... you will be here available for a verdict when one becomes available." (Doc. No. 1, 45:25-46:2.) She denied telling Petitioner he would need to return for sentencing two days into trial. (Doc. No. 1, 46:3-6.) Petitioner also raised an argument that his counsel did not adequately warn him of a twenty year sentence, claiming that otherwise he would have taken the plea deal offered. (Doc. No. 1, 39:5-21.) However, the Trial Court clarified that Petitioner was present at the arraignment and knew what his charges were. (Doc. No. 1, 40:18-25.) Petitioner's trial counsel confirmed that her notes indicate she did warn Petitioner of a potential twenty year sentence. (Doc. No. 1, 42:2-15.)
Petitioner offers even less evidence regarding his claims against his appellate counsel, only providing a correspondence indicating that his appellate counsel returned various documents to Petitioner in January 2015. Petitioner makes no argument as to why he has a likelihood of success on these claims. Petitioner's evidence demonstrates little to no likelihood of success on claims against either his trial counsel or his appellate counsel for ineffective assistance.
As to Petitioner's claim arguing "Illegal Sentence," his allegations are vague, but attempt to point to testimony supporting a lesser crime. Petitioner makes no argument explaining how any of the attached transcripts support his claims, nor does he provide any specific citations to portions of the transcripts. Moreover, upon review, the Court cannot identify anything in Petitioner's array of attached transcripts from various Court hearings that rises to any showing of merit. With scant evidence and contradictory witness transcripts, Petitioner fails to demonstrate a likelihood of success on the merits of his claim for "Illegal Sentence." Accordingly, the Court finds that there is no cause to grant a stay under Rhines to allow Petitioner to pursue his unexhausted claims.
V. RECOMMENDATION
For the aforementioned reasons, the Court RECOMMENDS Petitioner's Motion to Stay be DENIED. This Report and Recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. Section 636(b)(1).
IT IS ORDERED that no later than February 23, 2016, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 9, 2016. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED. Dated: February 3, 2016
/s/_________
Hon. William V. Gallo
United States Magistrate Judge