Hernandez v. Davey et al

Northern District of California, cand-4:2015-cv-01805

ORDER by Judge Haywood S. Gilliam, Jr. GRANTING PLAINTIFF'S ({{6}}, {{19}}) MOTION TO AMEND AND STAY PETITION PENDING EXHAUSTION.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROBERT VALENTINO HERNANDEZ, Case No. 15-cv-01805-HSG Plaintiff, 8 ORDER GRANTING PLAINTIFF'S v. MOTION TO AMEND AND STAY 9 PETITION PENDING EXHAUSTION 10 DAVE DAVEY, et al., Re: Dkt. Nos. 6, 19 Defendants. 11 12 Northern District of California United States District Court Before the Court is Petitioner Robert Valentino Hernandez's ("Petitioner") motion to 13 amend his petition for a writ of habeas corpus to add an unexhausted claim and to stay and hold 14 the petition in abeyance pending exhaustion. Dkt. No. 19-1 ("Mot."); see also Dkt. No. 6 (original 15 motion). Respondent Dave Davey, Warden at California State Prison, Corcoran ("Respondent") 16 has filed an opposition, Dkt. No. 22 ("Opp."), and Petitioner has replied, Dkt. No. 23 ("Reply"). 17 The Court has carefully considered the parties' arguments in their briefs. For the reasons 18 set forth below, the Court GRANTS Petitioner's motion to amend and stay pending petition 19 pending exhaustion. The Court does so without prejudice to deciding that Petitioner's amendment 20 is untimely and/or not cognizable on federal habeas review as a claim of actual innocence. 21 I. BACKGROUND 22 A. Factual Allegations 23 Following a jury trial, Petitioner was convicted of two counts of first-degree murder with 24 associated firearms and gang enhancements in Contra Costa County Superior Court. Dkt. No. 1 25 ("Pet.") ¶ 1. The convictions stemmed from the fatal shooting of a pregnant woman on February 26 13, 2007, in Montalvin Manor, California. Id. ¶ 5. Twenty-seven bullets were fired at the house 27 in which the victim was located, and one struck and killed her and her unborn child. Id. 28 1 No eyewitnesses saw the shooter. Id. ¶ 6. Instead, Petitioner was convicted largely due to 2 the testimony of Jason Treas, a jailhouse informant who later shared a prison cell with Petitioner. 3 Id. ¶ 10. Treas testified that Petitioner confessed that he committed the shooting. Id. ¶ 37. At the 4 time of the confession, Treas was in talks with various government agencies. Id. ¶¶ 16-21. 5 Before trial, Petitioner moved to exclude Treas's testimony under Massiah v. United 6 States, 377 U.S. 201 (1964), on the grounds that Treas was improperly acting as a government 7 agent when he obtained Petitioner's statements. Id. ¶ 12. The state trial court denied the motion 8 in full, finding that there was no evidence Treas had elicited the statements from Petitioner and no 9 evidence of a pre-existing deal between Treas and law enforcement. Id. ¶ 25. 10 After Petitioner was convicted, he timely appealed to the California Court of Appeals for 11 the First Appellate District. Id. ¶ 2. His convictions were affirmed, and Petitioner timely filed a 12 petition for review with the California Supreme Court. Id. ¶ 3. The California Supreme Court Northern District of California United States District Court 13 denied review on January 21, 2014. Id. 14 B. Procedural History 15 Petitioner filed the instant petition for a writ of habeas corpus on April 21, 2015. On May 16 8, 2015, the Court issued an order to show cause to Respondent regarding the petition. Dkt. No. 5. 17 That same day, Petitioner filed a motion to amend his petition to add an exhausted claim and to 18 stay and hold the petition in abeyance pending exhaustion. Dkt. No. 6. Respondent responded to 19 the order to show cause on July 6, 2015, Dkt. No. 13, but did not respond to the motion to amend 20 because he claims that he did not receive electronic service, Mot. at 1. For that reason, Petitioner 21 refiled the motion to amend on September 3, 2015, which is the motion now before the Court. 22 Petitioner moves to amend his petition to add an unexhausted claim. Mot. at 3. The basis 23 for the new claim is statements that an inmate named Robert Leyva made to Petitioner's counsel, 24 in which he purportedly claimed sole responsibility for the February 13, 2007 shooting. Id. at 2; 25 see also Dkt. No. 19-2 ("Daryani Decl.") (Petitioner's counsel's account of Levya's confession). 26 Leyva was one of Petitioner's co-defendants. Mot. at 2. In the proposed amended petition, the 27 claim is identified as "newly discovered evidence of petitioner's innocence." Dkt. No. 19-3 ¶ 54. 28 Assuming that the Court grants the motion to amend, Petitioner further moves to stay his petition 2 1 to permit him to exhaust his new claim before the state courts. Mot. at 3. 2 Respondent argues that this new claim is untimely and does not relate back to the original 3 claim in his petition. Opp. at 6-8. In any case, Respondent contends, there is no basis to stay the 4 petition pending exhaustion of the new claim because there was no good cause for the delay and 5 there is no merit to the claim. Id. at 1-5. 6 II. LEGAL STANDARD 7 A. Motion to Amend Petition to Add Unexhausted Claim 8 28 U.S.C. § 2244(d) generally provides a one-year statute of limitations period within 9 which a state inmate must file a federal habeas petition. In this case, the limitations period started 10 to run from "the date on which the judgment became final by the conclusion of direct review" not 11 including "[t]he time during which a properly filed application for State post-conviction or other 12 collateral review with respect to the pertinent judgment. . . is pending[.]" See id.; see also Wixom Northern District of California United States District Court 13 v. Washington, 264 F.3d 894, 897-98 (9th Cir. 2001) (90 days added to petition filing deadline). 14 An otherwise untimely amendment to a federal habeas petition may be timely if it "relates 15 back" to the original petition. Mayle v. Felix, 545 U.S. 644 (2005). The relation-back doctrine is 16 generally set forth in Federal Rule of Civil Procedure 15(c)(1) and, as relevant here, provides that 17 "[a]n amendment relates back to the date of the original pleading when. . . the amendment asserts 18 a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted 19 to be set out—in the original pleading[.]" 20 B. Motion to Stay Mixed Petition Pending Exhaustion 21 A federal court may not grant a habeas petition filed by an inmate in custody pursuant to a 22 state court judgment unless the petitioner has exhausted the remedies for post-conviction relief 23 available to them in the state courts for each claim. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 24 455 U.S. 509, 522 (1982) (a petition containing exhausted and unexhausted claims is "mixed" and 25 habeas relief cannot be granted). But a court has the discretion to stay a mixed petition to permit 26 the petitioner to return to state court to exhaust her unexhausted claims. Rhines v. Weber, 544 27 U.S. 269, 277-78 (2005). Under Rhines, this stay procedure is available only where: (1) there is 28 "good cause" for the failure to exhaust an unexhausted claim; (2) the unexhausted claim is 3 1 potentially meritorious; and (3) the petitioner did not intentionally engage in dilatory tactics. Id. 2 Good cause requires a "reasonable excuse, supported by sufficient evidence" to justify the failure 3 to exhaust. Blake v. Baker, 743 F.3d 977, 982 (9th Cir. 2014). 4 III. DISCUSSION 5 Respondent contends that Petitioner's unexhausted claim is neither timely nor cognizable 6 under federal habeas review and, therefore, does not merit a Rhines stay. The Court reserves its 7 judgment on these issues. While Petitioner's unexhausted claim is facially untimely, the record is 8 not yet sufficiently developed to determine whether his actual innocence claim relates back to his 9 underlying claim. See Fed. R. Civ. P. 15(c)(1) (untimely amendment must assert claim that arose 10 out of the "conduct, transaction, or occurrence set out—or attempted to be set out" in the original 11 petition). And the Supreme Court has left open the question of whether freestanding claims of 12 actual innocence are cognizable on federal habeas review. See McQuiggin v. Perkins, 133 S. Ct. Northern District of California United States District Court 13 1924, 1931 (2013) ("We have not resolved whether a prisoner may be entitled to habeas relief 14 based on a freestanding claim of actual innocence."). 15 To permit further development of the record, the Court grants Petitioner's motion to amend 16 the petition and stays the case pending exhaustion of his actual innocence claim. The Court does 17 so, however, without prejudice to it later deciding that either: (1) Petitioner's claim is untimely; or 18 (2) that actual innocence claims are not cognizable on federal habeas review. 19 IV. CONCLUSION 20 For the foregoing reasons, the Court hereby GRANTS Petitioner's motion to amend the 21 petition and stay the action and hold in abeyance pending exhaustion of his actual innocence claim 22 in the state courts. 23 IT IS SO ORDERED. 24 Dated: March 4, 2016 25 26 HAYWOOD S. GILLIAM, JR. 27 United States District Judge 28 4