(HC) Austin v. Unknown

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
STEVEN OSCAR AUSTIN,
Petitioner,
v.
UNKNOWN,
Respondent.
No. 2:25-cv-2054 DAD CSK P
ORDER
I. INTRODUCTION
Petitioner, a state prisoner proceeding without counsel, has filed an application for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2016 conviction for
robbery, carjacking, felon in possession of a firearm, evading police and gun enhancements.
(ECF No. 16 at 1.) For the following reasons, this Court finds that the claims raised in the
petition are not exhausted. Petitioner is granted thirty days from the date of this order to file a
motion to stay this action while he exhausts his unexhausted claims. If petitioner does not file a
motion to stay within that time, this Court will recommend dismissal of this action.
II. LEGAL STANDARDS RE: EXHAUSTION AND STAY AND ABEYANCE
Under 28 U.S.C. § 2254(b), the exhaustion of available state remedies is required before
claims can be granted by the federal court in a habeas corpus case. See Rose v. Lundy, 455 U.S.
509, 515-16 (1982). The exhaustion doctrine is based on a policy of federal and state comity,

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designed to give state courts the initial opportunity to correct alleged constitutional deprivations.
See Picard v. Connor, 404 U.S. 270, 275 (1971); see also Rose, 455 U.S. at 518.
Regardless of whether the claim was raised on direct appeal or in a post-conviction
proceeding, the exhaustion doctrine requires that each claim be fairly presented to the state’s
highest court. See Castille v. Peoples, 489 U.S. 346, 351 (1989). A claim has been fairly
presented if the petition has described both the operative facts and the federal legal theory on
which the claim is based. See Duncan v. Henry, 513 U.S. 364, 365-66 (1995). Although the
exhaustion doctrine requires only the presentation of each federal claim to the highest state court,
the claims must be presented in a posture that is acceptable under state procedural rules. See
Sweet v. Cupp, 640 F.2d 233, 237 (9th Cir. 1981). Thus, an appeal or petition for post-conviction
relief that is denied by the state courts on procedural grounds, where other state remedies are still
available, does not exhaust the petitioner’s state remedies. See Pitchess v. Davis, 421 U.S. 482,
488 (1979); Sweet, 640 F.2d at 237-38.
A petitioner may avoid dismissal of a petition containing unexhausted claims through
seeking a stay and abeyance of his petition. See Dixon v. Baker, 847 F.3d 714, 718-20 (9th Cir.
2017). The purpose of a stay and abeyance is to give a petitioner the opportunity to exhaust his
claims in state court before presenting them in federal court. Id.
A stay pursuant to Rhines v. Weber, 544 U.S. 269 (2005) may be employed as to both
mixed petitions and petitions raising only unexhausted claims.1 See Mena v. Long, 813 F.3d 907,
908 (9th Cir. 2016). A Rhines stay is appropriate if (1) the petitioner has good cause for his
failure to exhaust, (2) his unexhausted claims are potentially meritorious, and (3) there is no
indication that the petitioner engaged in intentionally dilatory litigation tactics. See Rhines, 544
U.S. at 277-78.
///
1 The Court notes that the alternative procedure for staying and abeying a federal habeas petition
pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), only applies to habeas petitions that
contain exhausted as well as unexhausted claims for relief. Because the instant petition is wholly
unexhausted, a Kelly stay is not available in the present case.

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III. DISCUSSION
The petition appears to raise the following claims: 1) conviction obtained in violation of
the Fourth Amendment; 2) ineffective assistance of counsel; 3) violation of Brady v. Maryland,
373 U.S. 83 (1963), Fourteenth Amendment right to due process and equal protection; and
4) violation of Fifth Amendment right against self-incrimination, the Takings Clause, double
jeopardy and Miranda v. Arizona, 384 U.S. 436 (1966). (ECF No. 16 at 4-5.)
Petitioner does not claim that he filed a habeas corpus petition in the California Supreme
Court. Accordingly, this Court considers only whether petitioner exhausted any of the claims
raised in the petition in the petition for review filed in the California Supreme Court on direct
appeal.
In the petition, petitioner states that he filed a petition for review in the California
Supreme Court raising the following claims: 1) failure to preserve evidence; 2) jury instruction
error regarding flight; 3) prosecutorial misconduct; 4) trial court erred in denying motion for new
trial; 5) interference with right to counsel of choice; and 6) sentencing error. (Id. at 2.) Petitioner
also claims that the California Supreme Court transferred the action back to the California Court
of Appeal for consideration of Senate Bill 1393. (Id.)
This Court reviewed the order by the California Court of Appeal affirming petitioner’s
conviction on direct appeal. See People v. Austin, case no. F073937, 2018 WL 3373409 (Cal.
App. July 11, 2018). In this order, the California Court of Appeal addressed the same claims
petitioner claims he raised in the petition for review. See id. This Court finds that the petition for
review did not raise any of the claims raised in the instant petition. However, further discussion
regarding this finding is required as to petitioner’s Brady claim raised in claim three and
petitioner’s ineffective assistance of counsel claim raised in claim two.
The opinion of the California Court of Appeal on direct appeal reflects that petitioner
raised a claim alleging failure to preserve evidence. See Austin, 2018 WL 3373409, at *7. The
California Court of Appeal described the failure to preserve evidence claim as based on the trial
court’s abuse of discretion in denying a motion to dismiss the case in light of discovery violations
by the prosecution team. See id. Petitioner “pointed to the failure to retain the items from which

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the latent fingerprints were obtained, and the AFIS list of potential matches to those prints.” Id.
Petitioner claimed that “the trial court should have excluded the fingerprint evidence or otherwise
imposed sanctions, and the abuse of its discretion denied him his federal constitutional rights to
the effective assistance of counsel and due process of law.” Id. In analyzing this claim, the
California Court of Appeal cited Brady. See id. at *10. The California Court of Appeal denied
petitioner’s failure to preserve evidence claim, finding no due process violation and no ineffective
assistance of counsel. See id. at *11.
Although claim three in the instant petition raises a Brady claim, claim three is not based
on the failure to preserve evidence claim raised in the petition for review. In claim three,
petitioner claims,
The petitioner was denied adequate discovery prior to preliminary
examination and trial which prevented him from challenging Fourth
Amendment violations and illegal arrest claims since his name was
not on any probable cause forms or warrants for arrest and had no
record and his vehicle was registered to him and therefore no
probable cause existed to arrest or detain him and no justification in
searching vehicle and illegally seizing his property which would
support exclusion of such evidence, defending current, prior or future
prosecution. 	Denial of discovery denied him meritorious defense
which would have been prevailing, denied him of fair hearing and
trial 	and 	caused 	him 	to 	face 	material 	and 	prejudicial
evidence/testimony 	without 	opportunity 	for 	meaningful 	cross-
examination, 	impeachment 	and 	proving 	falsity 	and 	prosecutor
misconduct and factual innocent claim.
(ECF No. 16 at 5.)
Because petitioner’s Brady claim raised in claim three is not based on the failure to
preserve evidence claim raised in the petition for review, this Court finds that claim three is not
exhausted by the petition for review.
Although claim two in the instant petition raises an ineffective assistance of counsel
claim, this claim is not based on the ineffective assistance of counsel claim related to the failure
to preserve evidence claim raised in the petition for review. In claim two, petitioner claims,
The petitioner has been provided ineffective assistance of counsel on
multiple levels under Strickland and Cronic standards which caused
a structural error of a constitutional magnitude. Counsels have failed
to investigate or present illegal search and seizure claim, obtain
petitioner’s identifying documents back to support lack of personal

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jurisdiction 	claim, 	provided 	inadequate 	legal 	advice 	regarding
suppression motion based on illegal arrest and illegal search and
seizure and double jeopardy claims, failed to adequately consult with
petitioner and provide discovery he was entitled to and colluded with
the opposition in order to fraud the court and the petitioner, steal his
property, coerce him into taking plea deals or abandon meritorious
defenses and kept critical information from petitioner which would
be beneficial to defense. Counsel was at a time completely absent at
critical stages and when petitioner was absent stipulated to facts
without his consent or did not ensure his right to present and
contribute to his defense was upheld which contributed to the
petitioner’s convictions and loss of defenses.
(Id. at 4.)
Because claim two does not raise the ineffective assistance of counsel claim related to the
failure to preserve evidence claim raised in the petition for review, this Court finds that claim two
is not exhausted by the petition for review.
This Court observes that in the petition, petitioner cites three cases he allegedly filed in
the California Supreme Court: S250686, S253363 and S284875.2 (ECF No. 16 at 49.) This
Court below discusses these cases and finds that they did not exhaust any of the claims raised in
the instant petition.
Records from the California Supreme Court reflect that California Supreme Court case no.
S250686 was the petition for review filed by petitioner from the order by the California Court of
Appeal in case no. F073937 affirming petitioner’s conviction. The docket from the California
Supreme Court in case no. S250686 reflects that on October 24, 2018, the California Supreme
Court granted the request for consideration of an additional issue in the petition for review and
granted the petition for review. The California Supreme Court transferred the matter back to the
California Court of Appeal with directions to vacate its decision and reconsider in light of Senate
Bill 1393.
Records from the California Supreme Court reflect that California Supreme Court case no.
S253363 was a petition for review opened on January 4, 2019 and denied on February 13, 2019.
2 This Court takes judicial notice of the California Supreme Court records in case nos. S250686,
S253363 and S284875. See Fed. R. Evid. 201(b); Reyn’s Pasta Bella LLC v Visa USA, Inc., 442
F.3d 741, 746 n.6 (9th Cir. 2006) (observing that the court “may take judicial notice of court
filings and other matters of public record.”).

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This petition for review appears to have challenged the December 3, 2018 order by the California
Court of Appeal in case no. F073937 reconsidering its opinion in light of Senate Bill 1393. See
People v. Austin, 2018 WL 6303822 (Cal. App. Dec. 3, 2018). Based on Senate Bill 1393, the
California Court of Appeal remanded the matter to the trial court with discretion to resentence
petitioner. See id. at *25.
Records from the California Supreme Court reflect that California Supreme Court case no.
S284875 was a petition for review from California Court of Appeal case no. F086583. In case
no. S284875, on June 12, 2024, the California Supreme Court denied the petition for review. To
put case no. S284875 in context, this Court makes the following observations. After the
California Court of Appeal in case no. F073937 remanded the matter to the trial court for the first
time, the trial court exercised its discretion to strike the punishment for the California Penal
Code § 667(a) enhancement but then unstayed the California Penal Code § 667.5(b)
enhancement. See People v. Austin, 2021 WL 222351 (Cal. App. Jan. 22, 2021). In case no.
F079651, the California Court of Appeal reviewed the trial court’s resentencing of petitioner
following the remand in case no. F073937. In case no. F079651, the California Court of Appeal
struck the California Penal Code § 667.5(b) enhancement, vacated the sentence and remanded the
matter to the trial court for a second time to conduct a new sentencing hearing. See id. at *2.
Following the second remand, the trial court sentenced petitioner to 27 years, four months in
prison. See People v. Austin, 2022 WL 4354618, at *1 (Cal. App. Sept. 20, 2022). In case no.
F083888, the California Court of Appeal reviewed the trial court’s latest resentencing of
petitioner and ordered the $900 probation report fee stricken, vacated the sentence and remanded
the matter to the trial court for a third time to pronounce judgment in compliance with AB 518
and all other laws in effect at the time. See id. at *4. In case no. F086583, the California Court of
Appeal considered petitioner’s appeal of the trial court’s resentencing ordered in case no.
F083888 following the third remand. See id. at 1-3. In case no. F086583, the California Court of
Appeal affirmed the judgment and did not remand for further resentencing. See id. at *3. In case
no. S284875, the California Supreme Court denied the petition for review filed from California
Court of Appeal case no. F086583.

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In conclusion, the petition for review filed in California Supreme Court case no. S250686
addressed the claims raised in petitioner’s direct appeal filed in the California Court of Appeal,
none of which are raised in the instant petition. The petitions for review filed in California
Supreme Court case nos. S253363 and S284875 raised claims regarding petitioner’s sentence,
none of which are raised in the instant petition.
Because no claims raised in the instant petition have been presented to the California
Supreme Court, petitioner is granted thirty days from the date of this order to file a motion to stay
this action pursuant to Rhines while he exhausts his claims. In the motion to stay, petitioner shall
address the three factors for a Rhines stay discussed above. If petitioner does not file a motion to
stay within thirty days, this Court will recommend dismissal of this action.3
IV. REQUEST FOR APPOINTMENT OF COUNSEL
Petitioner has requested the appointment of counsel. (ECF No. 16 at 7.) There currently
exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. Sumner,
105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the appointment of
counsel at any stage of the case “if the interests of justice so require.” See Rule 8(c), Fed. R.
Governing § 2254 Cases. In the present case, the Court does not find that the interests of justice
would be served by the appointment of counsel at the present time.
In accordance with the above, IT IS HEREBY ORDERED:
1. Petitioner’s request for appointment of counsel is denied; and
2. Petitioner is granted thirty days from the date of this order to file a motion to stay
pursuant to Rhines; failure to comply with this order will result in a recommendation of dismissal
of this action.
Dated: December 5, 2025
Aust2054.ord(4)/2
3 	Petitioner is cautioned that the habeas corpus statute imposes a one year statute of limitations
for filing non-capital habeas corpus petitions in federal court. In most cases, the one year period
will start to run on the date on which the state court judgment became final by the conclusion of
direct review or the expiration of time for seeking direct review, although the statute of
limitations is tolled while a properly filed application for state post-conviction or other collateral
review is pending. 28 U.S.C. § 2244(d).