Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DANIEL THORNBERRY, Case No.: 26-cv-1777-AJB-DDL 12 Petitioner, REPORT AND 13 v. RECOMMENDATION FOR ORDER DENYING PETITIONER’S MOTION 14 JASON SCHULTZ, Warden; ROB TO STAY BONTA, The Attorney General of the 15 State of California, 16 [Dkt. No. 2] Respondents. 17 18 19 This Report and Recommendation is submitted to United States District Judge 20 Anthony J. Battaglia pursuant to 28 U.S.C. § 636(b) and Civil Local Rules 72.1(d) and 21 HC.2 of the United States District Court for the Southern District of California. 22 On March 18, 2026, Petitioner Daniel Thornberry (“Petitioner”) filed a Petition for 23 Writ of Habeas Corpus [Dkt. No. 1] and a Motion to Stay [Dkt. No. 2]. For the reasons set 24 forth below, the Court RECOMMENDS that the motion be DENIED and that the District 25 Judge issue an order to show cause why the petition should not be dismissed. 26 / / / 27 / / / 28 / / / 1 I. 2 BACKGROUND 3 A. Trial Court Proceedings and Direct Appeal 4 The Court takes the following background from the California Court of Appeal’s 5 opinion in People v. Thornberry, No. D083497, 2025 WL 79101 (Cal. Ct. App. Jan. 13, 6 2025), review denied (Mar. 19, 2025). The Court presumes the state court’s factual 7 determinations are correct in the absence of clear and convincing evidence to the contrary. 8 28 U.S.C. §2254(e)(1). 9 Petitioner was arrested after entering a bank and demanding $100,000 from a teller. 10 On November 17, 2023, a jury convicted Petitioner of robbery. 11 Petitioner admitted that he had three prior convictions for bank robbery, had served 12 a prior state prison term, and was on parole when he committed the charged offense. He 13 filed a sentencing brief asking the trial court to strike two of his prior conviction allegations 14 and sentence him as a second-strike offender to prison for nine years. The People urged 15 the trial court to sentence Petitioner as a third-strike offender to prison for twenty-five years 16 to life for the robbery conviction, plus a consecutive term of fifteen years for the three prior 17 serious felonies convictions. The trial court declined to strike Petitioner’s prior convictions 18 for the purposes of the “Three Strikes” law, Cal. Pen. Code § 1170.12, but it struck the 19 prior convictions for the five-year enhancements and sentenced Petitioner to prison for 20 twenty-five years to life. Petitioner was also ordered to pay fines and fees totaling $5,000. 21 Petitioner appealed his conviction to the California Court of Appeal. People v. 22 Thornberry, No. D083497, 2025 WL 79101 (Cal. Ct. App. Jan. 13, 2025), review denied 23 (Mar. 19, 2025). In his appeal, Petitioner argued that (1) his trial counsel provided 24 ineffective assistance by failing to seek pretrial mental health diversion and (2) the fine 25 imposed by the court was unconstitutionally excessive and deprived him of property 26 without due process of law. Id. On January 13, 2025, the Court of Appeal affirmed 27 Petitioner’s conviction but modified the judgment to include an itemization of the theft 28 fine. Id. The Court of Appeal found that Petitioner did not meet his burden to establish 1 ineffective assistance of counsel. Id. The Court of Appeal further found that Petitioner’s 2 arguments regarding the constitutionality of the $5,000 fine were both forfeited and 3 meritless. Id. 4 Petitioner filed a Petition for Review in the California Supreme Court raising the 5 same two issues above. The Petition for Review was denied on March 19, 2025. 6 B. State Habeas Petitions 7 On November 24, 2025, Petitioner filed a state Petition for Writ of Habeas Corpus. 8 In it, he raised three grounds for relief: (1) the trial court relied on false evidence in denying 9 his Romero motion and sentencing him under the Three Strikes Law, (2) the trial court 10 sentenced him punitively for rejecting the People’s plea offer, and (3) he received 11 ineffective assistance of counsel. In re Thornberry, Case No. HC27858 SCD 299576 (Cal. 12 Super. Ct. Jan. 23, 2026). On January 23, 2026, the Superior Court denied the petition. Id. 13 On April 27, 2026, after filing the instant Motion to Stay, Petitioner filed a petition 14 for Writ of Habeas Corpus with the California Court of Appeal, which was denied on July 15 7, 2026. Case No. D088055. He filed another petition for Writ of Habeas Corpus with the 16 California Court of Appeal on August 27, 2026. Case No. D088751. He has not filed a 17 Petition for Writ of Habeas Corpus with the California Supreme Court. Dkt. No. 1 at 4. 18 C. Federal Habeas Petition 19 On March 18, 2026, Petitioner filed a federal Petition for Writ of Habeas Corpus 20 (“Petition”) in this Court. Dkt. No. 1. His Petition asserts two grounds for relief: 21 (1) “The trial court used a false factual basis and/or false evidence in denying 22 Petitioner’s motion to strike strikes and in sentencing petitioner excessively”; and 23 (2) “The trial court sentenced the petitioner excessively and by violating his due 24 process rights for rejecting the people’s plea bargain” 25 Id. at 6-7. 26 The same day, Petitioner filed a Motion to Stay. Dkt. No. 2. In Petitioner’s Motion 27 to Stay, he explains that “it is [his] intention to file a second petition for Habeas Corpus 28 relief with the Fourth District Court of Appeal in California as the second step in the three 1 steps of exhaustion.” Dkt. No. 2 at 2. Petitioner argues that by filing his state petition on 2 November 24, 2025, he “has made a sufficient good-faith effort to fully exhaust his grounds 3 he plans to raise” in his federal petition. Id. Petitioner requests a stay under 28 U.S.C. 4 § 2244(d)(2) and requests that his federal petition be filed “with leave to amend…upon full 5 exhaustion of his state court post-conviction petition.” Id. at 3. 6 On May 20, 2026, Respondents filed an opposition to the motion to Stay. Dkt. No. 7 10. Respondents argue that Petitioner’s motion should be denied because his grounds for 8 relief are both unexhausted and meritless. Id. Respondents argue that Petitioner’s claims 9 are cursory and unsupported by specific facts. Id. at 3. Additionally, Respondents argue 10 that Petitioner’s grounds for relief allege errors of state law, which are not subject to federal 11 habeas review. Id. 12 On June 5, 2026, Petitioner filed a reply. Dkt. No. 11. In his reply, Petitioner states 13 for the first time that he “intends to amend the petition to reflect a violation of his federal 14 constitutional rights” under the Sixth Amendment. Id. at 4-5. Petitioner then explains the 15 facts and evidence that he believes support his claims. Id. at 7-13. Petitioner concludes by 16 requesting two alternative forms of relief, neither of which are properly before the Court 17 at this time. See United States v. Boyce, 148 F. Supp. 2d 1069, 1085 (S.D. Cal. 2001), 18 amended (Apr. 27, 2001), aff'd, 36 F. App'x 612 (9th Cir. 2002) (“it is improper for a party 19 to raise a new argument in a reply brief”). 20 II. 21 LEGAL STANDARDS 22 Habeas petitioners must exhaust their claims in state court before seeking relief in 23 federal court. 28 U.S.C. §2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 (1982).1 24 Exhaustion requires a petitioner to “fairly present” their claim in each appropriate state 25 26 27 1 All citations, subsequent history, and parallel reporter citations are omitted unless otherwise noted. In direct quotes, all internal quotation marks, brackets, ellipses and 28 1 court, “including a state supreme court with powers of discretionary review.” Baldwin v. 2 Reese, 541 U.S. 27, 29, 124 S. Ct. 1347, 1349, 158 L. Ed. 2d 64 (2004). 3 In addition to the exhaustion requirement, the Antiterrorism and Effective Death 4 Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations on the filing of 5 habeas petitions in federal court. 28 U.S.C. § 2244(d)(1). “Although the limitations period 6 is tolled during the pendency of a ‘properly filed application for State post-conviction or 7 other collateral review,’ § 2244(d)(2), the filing of a petition for habeas corpus in federal 8 court does not toll the statute of limitations.” Rhines v. Weber, 544 U.S. 269, 274–75 9 (2005). 10 AEDPA does not deprive district courts of the authority to issue stays, but “stay and 11 abeyance should be available only in limited circumstances.” Id. at 277. Rhines set forth 12 three requirements to stay a mixed petition containing exhausted and non-exhausted 13 claims, which also apply to entirely unexhausted petitions. Id.; Mena v. Long, 813 F.3d 14 907, 912 (9th Cir. 2016) (“Rhines applies to a petition that includes solely unexhausted 15 claims.”). First, there must be “good cause for the petitioner’s failure to exhaust his claims 16 in state court.” Rhines, 544 U.S. at 277. Second, the unexhausted claims must not be 17 “plainly meritless.” Id. Third, the petitioner must not have “engage[d] in abusive litigation 18 tactics or intentional delay.” Id. 19 III. 20 ANALYSIS 21 Petitioner recognizes that his claims are unexhausted and explains that he has not 22 filed a petition with the California Supreme Court because he “is in the process of 23 exhausting his post-conviction habeas corpus through the California Courts.” Dkt. No. 1 24 at 6. Because his claims are unexhausted, absent a stay, the Court is required to dismiss 25 the instant federal petition. 28 U.S.C. §2254(b)(1)(A). To determine whether a stay is 26 warranted, the Court examines the Rhines requirements. 27 / / / 28 / / / 1 A. Good Cause 2 Rhines’ good cause requirement “ensures that a stay and abeyance is available only 3 to those petitioners who have a legitimate reason for failing to exhaust a claim in state 4 court.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). “While a bald assertion cannot 5 amount to a showing of good cause, a reasonable excuse, supported by evidence to justify 6 a petitioner’s failure to exhaust, will.” Id. The Ninth Circuit has explained that for pro se 7 petitioners, good cause “can easily be established to the extent that they were without 8 counsel” because they “cannot be expected to understand the technical requirements of 9 exhaustion and should not be denied the opportunity to exhaust a potentially meritorious 10 claim simply because [they] lacked counsel.” Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 11 2017). “[W]hen evaluating good cause under Rhines, the district court must consider a 12 petitioner’s diligence (or lack thereof) in pursuing his state court remedies after he files his 13 federal petition.” Banks v. Allison, 140 F.4th 1181, 1187 (9th Cir. 2025). 14 In his motion to stay, Petitioner states that it was his “intention to file a second 15 petition for Habeas Corpus relief with the Fourth District Court of Appeal in California as 16 the second step in the three steps of exhaustion of his post-conviction petition for writ of 17 Habeas Corpus to complete AEDPA exhaustion to comply with the law’s requirements for 18 federal Habeas Corpus filing.” Dkt. No. 2 at 2-3. On April 27, 2026, he did so. Dkt. No. 19 10 at 18. Petitioner argues that because he has filed a “timely petition with the Superior 20 Court…he has made a sufficient good-faith effort to fully exhaust his grounds he plans to 21 raise under 28 USC 2254.” Id. at 3. 22 Under the generous standard of Dixon, Petitioner has demonstrated good cause for 23 a stay. Petitioner is proceeding pro se in both his state and federal habeas proceedings, and 24 it appears that Petitioner is proceeding diligently. Petitioner initiated state habeas 25 proceedings well in advance of the federal limitations period, is currently exhausting his 26 state court remedies, and has continued to do so since filing his federal petition. See 27 Bogarin v. Hatton, No. 16CV2793-BTM (BLM), 2017 WL 4857009, at *3 (S.D. Cal. Oct. 28 27, 2017) (finding good cause existed where pro se petitioner was proceeding diligently, 1 was in the process of exhausting state court remedies, and filed his state habeas petition 2 before the limitations period had expired). Accordingly, the Court finds Petitioner has 3 demonstrated good cause under Rhines. 4 B. Not Plainly Meritless 5 Even where good cause for a stay exists, “the district court would abuse its discretion 6 if it granted a stay when the unexhausted claims are plainly meritless.” Rhines, 544 U.S. 7 at 270. A petitioner need only show that one of the unexhausted claims is not plainly 8 meritless to obtain a stay. Id. at 277. “In determining whether a claim is 9 ‘plainly meritless,’ principles of comity and federalism demand that the federal court 10 refrain from ruling on the merits of the claim unless it is perfectly clear that the petitioner 11 has no hope of prevailing.” Dixon, 847 F.3d at 722. “An example of a ‘plainly meritless’ 12 claim is one that is not even cognizable under Section 2254.” Adams v. Paramo, No. CV 13 15-5417-FMO (KES), 2016 WL 11518348, at *6 (C.D. Cal. Jan. 20, 2016) 14 First, Petitioner claims that “the trial court used a false factual basis and/or false 15 evidence in denying petitioner’s motion to strike strikes and in sentencing petitioner 16 excessively.” Dkt. No. 1 at 6. Second, Petitioner claims that “the trial court sentenced the 17 petitioner excessively and by violating his due process rights for rejecting the people’s plea 18 bargain.” Dkt. No. 1 at 7. Petitioner does not provide supporting facts for either claim. Id 19 at 6-7. Rather, in the “supporting facts” portion of his petition, Petitioner states “see motion 20 to stay pending exhaustion of post-conviction habeas corpus,” Dkt. No. 1 at 6-7. The 21 motion to stay also does not contain supporting facts for either claim. Dkt. No. 2. 22 Respondents argue that Petitioner’s claims are plainly meritless because they are 23 “cursory and unsupported” by specific factual allegations. Dkt. No. 10 at 3. Respondents 24 further argue that neither claim presents a cognizable ground for habeas corpus relief, as 25 both allege an error in the trial court’s application of state sentencing law. Id. 26 Petitioner bears the burden of showing that at least one of his claims is not “plainly 27 meritless,” Dixon, 847 F.3d at 723, and he has not met that burden here. The Court finds 28 the claims as alleged in the petition are plainly meritless because Petitioner has failed to 1 provide supporting facts for either claim. “It is well-settled that conclusory allegations 2 which are not supported by a statement of specific facts do not warrant habeas relief.” 3 Jones v. Gomez, 66 F.3d 199, 204 (9th Cir.1995). The operative facts supporting a 4 Petitioner’s claim to relief must be set forth in the petition itself. See Foote v. Del Papa, 5 244 F. App’x 74, 80 (9th Cir. 2007) (affirming the district court’s denial of habeas relief 6 where the operative facts for a claim were set forth only in the petitioner’s Traverse and 7 were not included in his petition). Petitioner does not explain what “false factual basis 8 and/or false evidence” was allegedly used in denying his Romero motion,2 nor does he 9 provide any evidence of retaliation for his rejection of a plea bargain. Accordingly, 10 Petitioner’s claims “lack[] the necessary specificity required to present a federally 11 cognizable claim.” Zepeda v. Figueroa, No. 11-CV-2350-BAS RBB, 2014 WL 2605360, 12 at *3 (S.D. Cal. June 11, 2014) (denying a petitioner’s coercion claim where petitioner did 13 not explain what misrepresentations or coercive statements were made); Hopkins v. State, 14 No. EDCV140028CASDFM, 2014 WL 12968121, at *4 (C.D. Cal. Oct. 22, 2014) 15 (denying motion to stay under Rhines where the petitioner “does not present any evidence 16 to support any of these vague allegations”). 17 Further, to the extent Petitioner’s claims allege errors in the trial court’s application 18 of state sentencing laws, they fail to present cognizable grounds for federal habeas corpus 19 relief. “In conducting habeas review, a federal court is limited to deciding whether a 20 conviction violates the Constitution, laws, or treaties of the United States.” Estelle v. 21 McGuire, 112 S. Ct. 475, 480 (1991). The interpretation or application of state law is not 22 subject to federal habeas review. Miller v. Vasquez, 868 F.2d 1116, 1119 (9th Cir. 1989) 23 (holding that a petitioner’s claim that the trial court wrongfully applied an enhancement 24 25 26 2 People v. Superior Ct. (Romero), 13 Cal.4th 497 (1996) (holding that in the furtherance 27 of justice, a trial court may strike an allegation or vacate a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony). 28 1 provision to his sentence was not subject to federal habeas review). For a state law 2 sentencing error to be cognizable on federal habeas review, the “petitioner must show that 3 [the] alleged state sentencing error was so arbitrary or capricious as to constitute an 4 independent due process violation . . .” Richmond v. Lewis, 506 U.S. 40, 50 (1992). 5 Petitioner has not done so here. 6 C. Dilatory Litigation Tactics 7 Because the Court has found that Petitioner’s claims are plainly meritless, it need 8 not examine whether Petitioner has engaged in “abusive litigation tactics or intentional 9 delay.” Rhines, 544 U.S. at 278. 10 D. Sua Sponte Dismissal of a Habeas Petition 11 “A district court may summarily dismiss a federal habeas corpus petition sua 12 sponte if it plainly appears from the petition and any attached exhibits that the petitioner is 13 not entitled to relief.” Valdez v. Montgomery, 918 F.3d 687, 693 (9th Cir. 2019). “ A 14 district court should do so, however, only after providing the petitioner with adequate 15 notice and an opportunity to respond.” Id. Similarly, “the Ninth Circuit has held that a 16 federal court may raise the failure to exhaust issue sua sponte and may summarily dismiss 17 on that ground.” Kaczmarek v. Los Angeles Cnty. Prob. Dep’t, No. CV1700832SVWRAO, 18 2017 WL 11635460, at *1 (C.D. Cal. July 13, 2017) (citation omitted). Because Petitioner 19 is not entitled to a stay and his petition contains exclusively unexhausted claims, the 20 undersigned recommends that the District Judge issue an order to show cause why the 21 petition should not be dismissed. 22 IV. 23 CONCLUSION 24 For the foregoing reasons, the undersigned RECOMMENDS that the District Judge 25 issue (1) an order DENYING Petitioner’s Motion to Stay and (2) an order to show cause 26 why the petition should not be dismissed. 27 IT IS HEREBY ORDERED that any objections to this Report and Recommendation 28 must be filed by not later than October 9, 2026. Any response to a party’s objections must 1 ||be filed by not later than October 23, 2026. Failure to timely file objections may waive 2 || the right to raise those objections on appeal. See Turner v. Duncan, 158 F.3d 449, 455 (9th 3 1998); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991). 4 IT IS SO ORDERED. 5 || Dated: September 10, 2026 ae ' □□□□□□□□□□□□□□□□□□□□□□ 8 United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28