The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 DAVID CHARLES MACON, Case No. 2:21-CV-06857 JAK (KES)
12 Petitioner,
ORDER TO SHOW CAUSE WHY
13 v.
PETITION SHOULD NOT BE
14 JEFF LYNCH, Acting Warden, DISMISSED AS MIXED
15 Respondent.
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18 I.
19 BACKGROUND
20 On August 16, 2021, David Charles Macon (“Petitioner”) constructively filed
21 a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28
22 U.S.C. § 2254. (Dkt. 1 [“Petition”].) Petitioner challenges his conviction for
23 robbery and carjacking. (Id. at 2.1) The Petition raises the following grounds for
24 relief: (1) insufficient evidence supporting the gang enhancements, (2) failure to
25 properly instruct the jury on the elements of carjacking, (3) conviction resulted in a
26 fundamental miscarriage of justice, (4) ineffective assistance of trial counsel,
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28 1 Page citations refer to pagination imposed by the Court’s electronic filing system.
1 (5) Petitioner is actually innocent of robbery, (6) state court imposed an illegal and
2 unconstitutional sentence, (7) combined effect of trial errors violated Petitioner’s
3 right to due process. (Id. at 16).
4 II.
5 LEGAL STANDARD
6 The United States Supreme Court follows a rule of “total exhaustion,”
7 requiring that all claims in a habeas petition be exhausted before a federal court
8 may grant the petition. See Rose v. Lundy, 455 U.S. 509, 522 (1982). If all or
9 some of the claims have not been exhausted, then the petition is subject to
10 dismissal. Id.
11 To satisfy the exhaustion requirement, a habeas petitioner must fairly present
12 his federal claims in the state courts in order to give the State the opportunity to
13 pass upon and correct alleged violations of the petitioner’s federal rights. Duncan
14 v. Henry, 513 U.S. 364, 365 (1995) (per curiam). Exhaustion requires that a
15 petitioner’s claims be fairly presented to the highest court in a state court system
16 even if that court’s review is discretionary. O’Sullivan v. Boerckel, 526 U.S. 838,
17 845–47 (1999); James v. Giles, 221 F.3d 1074, 1077 n.3 (9th Cir. 2000). For a
18 petitioner in California state custody, this generally means the petitioner must have
19 fairly presented his claims to the California Supreme Court. See O’Sullivan, 526
20 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189 F.3d 882,
21 888 (9th Cir. 1999) (applying O’Sullivan to California). A petitioner has the
22 burden of demonstrating that he has exhausted available state remedies. See, e.g.,
23 Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).
24 Pursuant to the Anti-Terrorism and Effective Death Penalty Act of 1996
25 (“AEDPA”), all federal habeas petitions are subject to a one-year statute of
26 limitations, and claims not exhausted and presented to the federal court within the
27 one-year period are forfeited. 28 U.S.C. § 2244(d). Under Rhines v. Weber, 544
28 U.S. 269 (2005), a district court has discretion to stay a petition to allow a petitioner
1 to exhaust his claims in state court without running afoul of AEDPA’s one-year
2 statute of limitations period. Id. at 273–75. A district court may stay a petition if:
3 (1) the petitioner has good cause for his failure to exhaust his claims; (2) the
4 unexhausted claims are potentially meritorious; and (3) there is no indication that
5 the petitioner intentionally engaged in dilatory tactics. Id. at 278.
6 Alternatively, the Court may grant a stay under Kelly v. Small, 315 F.3d
7 1143 (9th Cir. 2003), which does not have the Rhines “good cause” requirement.
8 See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). A Kelly stay and abeyance
9 requires compliance with the following three-step procedure: (1) petitioner files an
10 amended petition deleting his unexhausted claims; (2) the district court “stays and
11 holds in abeyance the amended, fully exhausted petition, allowing petitioner the
12 opportunity to proceed to state court to exhaust the deleted claims”; and
13 (3) petitioner must subsequently seek to amend the federal habeas petition to
14 reattach “the newly-exhausted claims to the original petition.” Id. at 1135. Under
15 Kelly, however, the petitioner is only allowed to amend newly-exhausted claims
16 back into his federal petition if the claims are timely under the AEDPA or “relate
17 back” to the exhausted claims in the pending petition. Id. at 1140–41; see also
18 Mayle v. Felix, 545 U.S. 644, 662-64 (2005); Stein v. Director of Corrections, No.
19 05-1592, 2009 U.S. Dist. LEXIS 114016, 2009 WL 4755727 (E.D. Cal. Dec. 8,
20 2009).
21 III.
22 DISCUSSION
23 Some of the grounds raised in the present Petition appear to be unexhausted.
24 While Grounds One and Two were raised in the California Court of Appeal on
25 direct appeal, Petitioner did not file a petition for review in the California Supreme
26 Court. (Pet. at 2–3.) Further, Grounds Six and Seven have not been presented to
27 the state courts. (Id. at 2–4.)
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1 IV.
2 CONCLUSION
3 IT IS HEREBY ORDERED that, on or before September 30, 2021, Petitioner
4 | is ordered to show cause why the Petition should not be dismissed as mixed. In
5 || response to this Order to Show Cause, Petitioner should do one of the following:
6 (1) State that Petitioner would like to proceed only with the exhausted claims
7 | (Grounds 3, 4, and 5),
8 (2) Explain when/how Petitioner believes Grounds 1, 2, 6, and 7 were
9 | exhausted in state court, or
10 (3) File a motion to stay this action, to permit him to return to state court to
11 | exhaust Grounds 1, 2, 6, and 7. As discussed above, a stay may be available under
12 | Rhines v. Weber, 544 U.S. 269 (2005), if Petitioner can show “good cause” for his
13 | failure to exhaust his claims earlier, or under Kelly v. Small, 315 F.3d 1143 (9th
14 | Cir. 2003).
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16 | DATED: August 30, 2021
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" Troms E
10 Shows O. Seott)
KAREN E. SCOTT
20 UNITED STATES MAGISTRATE JUDGE
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