Muro v. Gipson

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 ANTONIO MURO, Case No.: 22-cv-00550-LL-JLB 13 Petitioner, REPORT AND 14 v. RECOMMENDATION ON PETITIONER’S MOTION FOR 15 CONNIE GIPSON, et al., STAY AND ABEYANCE 16 Respondents. [ECF No. 4] 17 18 19 This Report and Recommendation is submitted to the Honorable Linda Lopez, 20 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 21 72.1(d). On April 20, 2022, Antonio Muro (“Petitioner”), a California state prisoner 22 proceeding pro se, filed a Petition for Writ of Habeas Corpus before this Court pursuant to 23 28 U.S.C. § 2254. (ECF No. 1.) On June 10, 2022, Petitioner filed the instant Motion for 24 Stay and Abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). (ECF No. 4.) On 25 July 27, 2022, Connie Gipson and California Attorney General Rob Bonta (“Respondents”) 26 filed an opposition. (See ECF Nos. 9; 10.) On August 17, 2022, Petitioner filed a reply 27 acknowledging that his claims have now been exhausted and he is no longer seeking a stay 28 and abeyance. (ECF No. 12.) Having reviewed the entirety of the parties’ submissions 1 and for the reasons set forth herein, the Court RECOMMENDS that Petitioner’s Motion 2 for Stay and Abeyance be DENIED as moot. 3 I. BACKGROUND 4 On June 21, 2019, a San Diego County Superior Court jury convicted Petitioner of 5 first-degree murder (Cal. Pen. Code § 187(a)) and found true two sentencing enhancements 6 (Cal. Pen. Code §§ 667.5(b); 12022(b)(1)). (ECF No. 1 at 1–2.) Petitioner was sentenced 7 to 26 years to life in prison. (Id. at 1.) On April 20, 2022, Petitioner filed a federal habeas 8 corpus petition before this Court challenging his conviction on two grounds: (1) ineffective 9 assistance of counsel,1 and (2) violation of his rights to a fair trial and due process “based 10 on Petitioner not being allowed to be present at every material stage of trial, over his 11 objection.” (Id. at 6–7.) This Court dismissed the petition without prejudice for failure to 12 satisfy the filing fee requirement and for failure to allege exhaustion of state judicial 13 remedies as to Ground Two, the claim that he had not been present for all material stages 14 of the trial. (ECF No. 2.) In addition, having preliminarily determined his petition 15 contained both an exhausted and an unexhausted claim, the Court notified Petitioner of 16 four options: demonstrate exhaustion, voluntarily dismiss his petition, formally abandon 17 his unexhausted claim, or file a motion to stay. (Id. at 3–5.) 18 On March 21, 2022, Petitioner filed a state habeas corpus petition in the California 19 Supreme Court. (See ECF No. 11-1.) Petitioner alleged his Sixth and Fourteenth 20 Amendment rights were violated because “trial counsel illegally held agreements on 21 finalizing jury instructions outside [his] and [the] court reporter’s presence over [his] 22 complaint.” (Id. at 3.) The California Supreme Court denied the petition on July 20, 2022. 23 (ECF No. 11-2 at 1.) 24 On June 10, 2022, Petitioner filed a Motion for Stay and Abeyance (the “Motion”) 25 to completely exhaust his state court remedies. (ECF No. 4.) On June 24, 2022, Petitioner 26 27 1 Ground One was raised in a petition for review filed in the California Supreme Court, 28 1 filed a supplement to his Motion. (ECF No. 5.) On June 27, 2022, the Court reopened 2 Petitioner’s case after he paid the $5.00 filing fee. (See ECF No. 6.) On July 27, 2022, 3 Respondents filed a “Statement of Non-Opposition to a Stay Because None is Needed,” 4 which the Court construed as an opposition to Petitioner’s Motion. (ECF Nos. 9; 10.) On 5 July 29, 2022, Respondents filed a supplement to their opposition. (ECF No. 11.) On 6 August 17, 2022, Petitioner filed a reply. (ECF No. 12.) This matter is now ripe for this 7 Court’s review and recommendation. 8 II. STANDARD OF REVIEW 9 Habeas petitioners who wish to challenge either their state court conviction or the 10 length of their confinement must first exhaust state judicial remedies. See 28 U.S.C. 11 § 2254(b), (c); see also Granberry v. Greer, 481 U.S. 129, 133–34 (1987); Peterson v. 12 Lampert, 319 F.3d 1153, 1155 (9th Cir. 2003). To exhaust state judicial remedies, a 13 California state prisoner must present the California Supreme Court with a fair opportunity 14 to rule on the merits of every issue raised in his federal habeas petition. 28 U.S.C. 15 § 2254(b), (c); Granberry, 481 U.S. at 133–34; Gatlin v. Madding, 189 F.3d 882, 888 (9th 16 Cir. 1999). Federal courts cannot consider petitions that contain both exhausted and 17 unexhausted claims, often referred to as “mixed” petitions. See Rose v. Lundy, 455 U.S. 18 509, 522 (1982) (holding a district court must dismiss a federal habeas petition containing 19 both unexhausted and exhausted claims). The filing of a mixed petition renders it subject 20 to dismissal. Rose, 455 U.S. at 519. 21 In Rhines, the Supreme Court carved out “limited circumstances” in which a district 22 court may exercise its discretion to stay a mixed petition and hold it in abeyance to allow 23 the petitioner time to fully exhaust his claims in state court. Rhines, at 544 U.S. 277; Blake 24 v. Baker, 745 F.3d 977, 980 (9th Cir. 2014). Under Rhines, a district court may stay and 25 hold in abeyance a “mixed” habeas petition if: (1) the petitioner has good cause for failing 26 to exhaust all claims; (2) the unexhausted claims are potentially meritorious; and (3) the 27 petitioner did not intentionally engage in dilatory litigation tactics. Id. at 277–78. In the 28 Ninth Circuit, the district court also has discretion to stay and hold in abeyance fully 1 unexhausted petitions. Mena v. Long, 813 F.3d 907, 911–12 (9th Cir. 2016) (finding the 2 distinctions between mixed petitions and fully unexhausted petitions not sufficiently 3 meaningful to warrant different treatment). 4 III. DISCUSSION 5 The threshold issue is whether there are any state remedies available to Petitioner 6 that would justify staying the case for exhaustion purposes. Proper exhaustion of state 7 remedies requires a litigant to present every federal claim or issue in his petition to the 8 California Supreme Court to ensure the court has a fair opportunity to rule on the merits. 9 Granberry, 481 U.S. at 133–34. A claim has been fairly presented if the petitioner has 10 described both the operative facts and the federal legal theory on which the claim is based. 11 Bland v. California Dep’t of Corrections, 20 F.3d 1469, 1473 (9th Cir. 1994), cert. denied, 12 513 U.S. 947 (1994), overruled on other grounds in Schell v. Witek, 218 F.3d 1017 (9th 13 Cir. 2000). 14 Here, Petitioner has now exhausted his available state remedies. On March 21, 2022, 15 Petitioner filed a petition for writ of habeas corpus with the California Supreme Court, 16 alleging that his attorney and the trial court “held agreements on finalizing jury 17 instructions” out of his presence in violation of the Sixth and Fourteenth Amendments. 18 (ECF No. 11-1 at 3.) Petitioner’s state claim is essentially identical to Ground Two set 19 forth in the instant Petition. (ECF No. 1 at 7.) After Petitioner filed the instant Motion, 20 the California Supreme Court denied his state court petition on July 20, 2022, a decision 21 which rendered Petitioner’s claim exhausted at the state court level. (ECF No. 11-2 at 1.) 22 Accordingly, the Court finds Petitioner has now satisfied the exhaustion requirement with 23 respect to both claims presented in the instant petition.2 For this reason, the Court 24 RECOMMENDS that Petitioner’s Motion be DENIED as moot. 25 /// 26 27 2 Because Petitioner no longer has a “mixed” habeas petition, it is unnecessary for the 28 l IV. CONCLUSION AND RECOMMENDATION 2 For the reasons discussed above, the Court RECOMMENDS that Petitioner’s 3 Motion for Stay and Abeyance (ECF No. 4) be DENIED as moot. 4 IT IS HEREBY ORDERED that any written objections to this Report and 5 ||Recommendation shall be filed with the Court and served on all parties no later than 6 ||September 9, 2022. The document should be captioned “Objections to Report and 7 ||Recommendation.” 8 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 9 || the Court and served on all parties no later than September 19, 2022. 10 The parties are advised that failure to file objections within the specified time may 11 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 12 || 158 F.3d 449, 455 (9th Cir 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir 1991). 13 IT IS SO ORDERED. 14 ||Dated: August 19, 2022 - 15 Balladt n. Jill L. Burkhardt 16 ited States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28