Tolentino v. Andes et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
EDUARDO TOLENTINO,
Petitioner,
v.
CHANCE ANDES, et al.,
Respondents.
Case No.: 25-cv-01687-CAB-MMP
ORDER DENYING AS MOOT MOTION
TO STAY
[ECF No. 5]
On June 30, 2025, Petitioner, a state prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 against Respondent Chance Andes,
Warden. ECF No 1.
In an Order issued on July 8, 2025, the Court granted Petitioner’s motion to proceed
in forma pauperis and notified Petitioner the Petition as currently drafted was subject to
dismissal for failure to allege exhaustion of state court remedies. ECF No. 4. The Court
instructed Petitioner to avoid a future dismissal for presenting a petition with only
unexhausted 	claims, 	Petitioner 	must 	notify 	the 	Court 	of 	his 	choice 	to 	either: 	(1)
demonstrate exhaustion, (2) voluntarily dismiss the petition, or (3) file a motion to stay the
federal proceedings. Id. On July 24, 2025, Petitioner elected the third option and filed a
response to the Court’s July 8, 2025 Order, entitled “Motion To Stay The Federal
Proceedings In This Court,” in which he “requests an order granting the staying of this
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federal proceeding pending the state exhaustion.” ECF Nos. 5 at 1, 3; 6. Respondent filed
an Opposition. ECF No. 9. On September 12, 2025, Petitioner filed a Reply, requesting the
Court deny the Motion to Stay and Abey after the California Supreme Court denied his
petition for review, as well as a request for leave to amend his original petition. ECF No.
10.
Currently before this Court are Petitioner’s Motion to Stay and Abey and request to
file a first amended petition. ECF Nos. 5, 6, 10. This Court has carefully considered these
documents, as well as Respondent's opposition, and the record as a whole. Based thereon,
and for the reasons set forth below, the Court DENIES the Request for Stay and Abeyance
Order as Moot.
I. 	BACKGROUND
Petitioner was convicted in the Superior Court of California for the County of
Imperial of first-degree murder with a firearm enhancement and other related charges and
sentenced to thirty-five years to life. ECF No. 6 at 10. Petitioner filed a direct appeal in the
Fourth District Court of Appeal, Division I and the California Supreme Court, where both
courts affirmed the Superior Court’s ruling on conviction and sentence. ECF No. 6 at 11.
Petitioner’s appeal challenged the denial of a Marsden1 motion, where Petitioner sought to
relieve 	his 	appointed 	counsel 	due 	to 	inadequate 	representation 	and 	“irreconcilable
conflict.” Id. The Fourth District Court of Appeal, Division I determined the trial court did
not abuse its discretion by denying the Marsden motion. Id.
Petitioner then sought a writ of habeas corpus in the Superior Court of California for
the County of Imperial, alleging ineffective assistance of trial and appellate counsel, denial
of his right to self-representation, and a conflict of interest involving his trial counsel. The
Superior Court denied the Petition on April 16, 2025. ECF No. 6 at 10. Petitioner then filed
1 People v. Marsden, 2 Cal.3d 118 (1970).
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his petition with the California Court of Appeal, which denied the Petition on June 17,
2025. Id. at 16, 19.
Petitioner filed the instant writ of habeas corpus in federal court on June 30, 2025.
ECF No. 1.
On July 7, 2025, Petitioner filed his petition with the California Supreme Court. ECF
No. 13-1 at 1. At the time Petitioner filed the federal habeas petition and subsequently
moved to stay pending exhaustion, the California Supreme Court had not ruled on his state
court habeas petition. ECF No. 1 at 16 ¶ 24. The California Supreme Court denied the
petition on August 20, 2025, while the instant motion to stay was pending. ECF No. 10 at
4.2
II. 	DISCUSSION
A. 	Magistrate Judge Authority
In habeas cases, magistrate judges may hear and determine nondispositive matters,
but not dispositive matters. Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004). “[W]here
the denial of a motion to stay is effectively a denial of the ultimate relief sought, such a
motion is considered dispositive, and a magistrate judge lacks the authority to ‘determine’
the matter.” Mitchell v. Valenzuela, 791 F.3d 1166, 1170 (9th Cir. 2015) (citing S.E.C. v.
CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). “By contrast, a motion to
stay is nondispositive where it ‘[does] not dispose of any claims or defenses and [does] not
effectively deny . . . any ultimate relief sought.’” Id. (citing CMKM Diamonds, 729 F.3d
at 1260). Here, the denial of Petitioner’s motion to stay and to file a first amended petition
as moot would not dispose of any claims or defenses or deny the ultimate relief sought by
Petitioner. Accordingly, the motion to stay is nondispositive, and this Court has the
authority to decide it without the need for a report and recommendation to the district judge.
2 Though Petitioner did not initially file a copy of his habeas petition filed with the
California Supreme Court, the Court required Respondent to do so. ECF Nos. 11, 13.
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Beason v. Samuel, No. 21-cv-2052-GPC-RBB, 2022 WL 686961, at *2 (S.D. Cal. Mar. 7,
2022).
B. 	Motion to Stay
Petitioner filed the instant motion to stay his federal habeas petition pending the
California Supreme Court’s ruling on his state habeas petition. ECF No. 5. The purpose of
the motion is to permit a habeas petitioner to return to state court to exhaust his federal
claims, a prerequisite to a federal court’s review of the petition. Rhines v. Weber, 544 U.S.
269, 273-74 (2005).
“A federal court may not consider a petition for habeas corpus unless the petitioner
has first presented his federal claims to the state courts, thereby ‘exhausting’ them.” Evans
v. Tilton, No. 07-cv-791-JM-BLM, 2008 WL 205231 at *3 (Jan. 23, 2008) (citing 28 U.S.C.
§ 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 (1982)). “The exhaustion requirement
is founded on federal-state comity, as only when the state court has been presented with
the claim may it ‘pass on and correct alleged violations of its prisoners’ federal rights.’”
Evans, 2008 WL 205231 at *3 (citing Duncan v. Henry, 513 U.S. 364, 365 (1995) (per
curiam) (quotes and citations omitted)). Exhaustion is required to prevent the disruption of
state judicial proceedings, Rose, 455 U.S. at 522, and to “economiz[e] scare federal judicial
resources.” Jennison v. Goldsmith, 940 F.2d 1308, 1311 (9th Cir. 1991) (citation omitted).
Here, Petitioner filed his motion to stay pending the California Supreme Court's
consideration of his habeas petition. ECF No. 6 at 3. Since Petitioner filed his motion to
stay, the California Supreme Court has ruled on the state court petition, summarily denying
his claims on August 20, 2025. ECF No. 10 at 4.
“The question [before this Court] is therefore whether the California Supreme
Court’s ruling served to fully exhaust the claims Petitioner alleges in his federal habeas
petition, or whether unexhausted claims remain.” Evans, 2008 WL 205231 at *3. See also
McGrail v. Becerra, No. 18-cv-3642-JVS-SS, 2019 WL 4266814 at *3 (C.D. Cal. Jan. 14,
2019). “If Petitioner’s federal claims have already been ‘passed on’ by the state court, and
are thus exhausted, he no longer needs more time to return to state court. In that case, the
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motion to stay would be moot.” Evans, 2008 WL 205231 at *3; see also Stamps v. Cate,
No. 11-cv-2048-LAB-WMc, 2012 WL 3076408 at *3 (S.D. Cal. July 30, 2012). However,
if unexhausted claims remain in the federal petition, then this Court must assess the motion
to stay regarding those claims.
“To determine whether the motion to stay is moot, this Court must make a side-by-
side comparison of the federal claims alleged in the federal petition with those of the state
petition, to see whether they were exhausted in the California Supreme Court.” Evans, 2008
WL 205231 at *4.
1. 	Legal Standard
Exhaustion of a habeas petitioner’s federal claims requires they have been “fairly
presented” in each appropriate state court, including a state supreme court with powers of
discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004). In California, this generally
entails direct or collateral presentation to both the lower courts of appeal and the state
supreme court, though presentation to the state supreme court alone may suffice. Rieger v.
Christensen, 789 F.2d 1425, 1427 (9th Cir. 1987); Johnson v. Zenon, 88 F.3d 828, 829 (9th
Cir. 1996). Here, this procedural requirement was met when Petitioner’s claims were
denied by the California Court of Appeal, followed by the California Supreme Court. ECF
Nos. 6 at 16–19; 10 at 4.
However, claims are not exhausted by mere presentation to the state appellate
system. A petitioner must also “alert[] [the state] court to the federal nature of the claim.”
Baldwin, 541 U.S. at 29. A petitioner may indicate a federal claim by citing the source of
federal law he relies upon, or by merely labeling the claim as “federal.” Id. at 32. If state
remedies have not been exhausted with respect to any of the federal claims, the habeas
petition typically should be dismissed. See Castille v. Peoples, 489 U.S. 346, 349 (1989).
Claims articulated in a federal habeas petition also must be the “substantial
equivalent” of those previously presented to the state courts. Schiers v. People, 333 F.2d
173, 174 (9th Cir. 1964). This requirement applies to both the factual and legal bases of a
claim. Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir. 1999).
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“The requirement of substantial equivalency is not rigid, and the state habeas petition
may be exhausted even when it does not spell out each syllable of the federal claim.” Patton
v. Beard, 14-cv-569-BEN-BLM, 2015 WL 1812811 at *2 (S.D. Cal. Apr. 20, 2015) (citing
Delgado v. Lewis, 181 F.3d. 1087, 1091 (9th Cir. 1999) (vacated and remanded on other
grounds, 528 U.S. 1122 (2000))). Furthermore, arguments presented to the federal court
can be supplemented with evidence not provided to the state court, as long as the additional
information does not “fundamentally alter” the claim. Vasquez v. Hillery, 474 U.S. 254,
260 (1986).
2. 	Petitioner Presents the Same Habeas Corpus Allegations in His Federal
and State Petitions
In his State Court writ for habeas corpus, Petitioner alleged (a) denial of right to self-
representation, (b) ineffective assistance of trial counsel, (c) ineffective assistance of
appellate counsel, and (d) a conflict of interest involving his trial counsel. ECF Nos. 6 at
11, 13-1 at 4–6. Looking to Petitioner’s federal allegations asserted in the Petition, the
Court finds they closely mirror the State allegations.
First, Petitioner alleged under Faretta, the trial court erred in denying his request to
represent himself. Faretta v. California, 422 U.S. 806 (1975). ECF Nos. 6 at 12, 13-1 at 5,
11. The trial court had denied the request as untimely. ECF No. 6 at 24. In the federal
allegations, Petitioner also asserts the trial court abused its discretion in denying his motion
to represent himself under Faretta. ECF No. 1 at 6. Furthermore, Petitioner asserts he
sought to represent himself for the purpose of “making a motion to withdraw his plea” to
first degree murder with a firearm enhancement. Id.
Second, Petitioner alleged ineffective assistance of trial counsel where trial counsel
failed to conduct a reasonable pre-trial investigation. ECF No. 6 at 11, 13-1 at 4. Petitioner
alleged had counsel “investigated adequately,” counsel would have negotiated a better plea
or prepared for trial with a “more favorable result.” ECF No. 6 at 18. Additionally,
Petitioner claimed trial counsel admitted he was ineffective during a visit in July 2022.
ECF Nos. 6 at 18, 13-1 at 4. Petitioner makes the same claim in the federal complaint and
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asserts the failure to conduct a reasonable pretrial investigation led to a failure to present
exculpatory evidence, and a failure to obtain favorable testimony which “could have
bolstered” Petitioner’s affirmative defense. ECF No. 1 at 9–10. Furthermore, Petitioner
claims his trial counsel was so ineffective that Petitioner’s guilty plea agreement was not
knowingly entered; rather it was involuntary. Id. at 10, 14.
Third, Petitioner alleged ineffective assistance of appellate counsel where counsel
did not argue the Faretta issue. ECF Nos. 6 at 11–12, 19, 13-1 at 5. Petitioner repeats those
allegations in the federal complaint, and specifically states appellate counsel failed to raise
the self-representation Faretta claim on direct appeal. ECF No. 1 at 12. Instead, Petitioner
argues, appellate counsel raised the issue of the trial court denying a Marsden motion,
rather than the “significant and most obvious issue on appeal,” the trial court’s denial of
the Faretta motion. Id.
Fourth, Petitioner contended a conflict of interest existed between his trial counsel
and prior counsel due to their personal relationship. ECF Nos. 6. at 12, 13-1 at 4–5.
Specifically, Petitioner argued trial counsel and prior counsel were former law school
classmates and friends, which interfered with trial counsel’s filing of a motion to withdraw
Petitioner’s plea. ECF Nos. 6 at 18, 13-1 at 4–5. In the federal petition, Petitioner alleges
his trial counsel had a conflict of interest with his previous trial counsel, triggering
ineffective assistance of counsel. ECF No. 1 at 14. Therefore, his trial counsel could not
argue the prior trial counsel was “ineffective as counsel” because trial counsel was
burdened to choose between his client and the prior trial counsel with whom he had a
personal relationship. Id.
Comparing Petitioner’s state claims and federal claims, the Court finds they are
“substantial[ly] equivalent.” Schiers, 333 F.2d at 174. Both the sets of claims allege
ineffective assistance of trial and appellate counsel, denial of self-representation, and a
conflict of interest involving trial counsel. Additionally, each claim is predicated on the
same factual background.
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Therefore, Petitioner has “fairly presented” his claims to the state court. Baldwin,
541 U.S. at 29. As the California Supreme Court has denied Petitioner’s state court petition,
Petitioner no longer requires more time to present his claims to state court. Petitioner’s
Request for a Stay and Abeyance Order is therefore DENIED AS MOOT.
C. 	First Amended Petition
Petitioner also seeks leave to file a first amended petition. ECF No. 10 at 2.
Petitioner need not apply for permission to file a first amended petition: he may do
so as a matter of right. Federal Rule of Civil Procedure 15(a) permits a civil litigant to
amend the party’s pleading once as a matter of course at any time before a responsive
pleading is served. Additionally, Federal Rule of Civil Procedure 15(a) applies to § 2254
habeas petitions “with the same force that it applies to garden-variety civil cases.”
Calderon v. United States Dist. Ct., 134 F.3d 981, 986 n.6 (9th Cir. 1998) abrogated on
other grounds by Rhines v. Weber, 544 U.S. 269 (2005); see also Keating v. Hood, 191
F.3d 1053, 1067 (9th Cir. 1998) (applying Rule 15(a) to § 2254 habeas petitions).
As Respondent has yet to file a responsive pleading, i.e., an answer, Petitioner may
file an amended pleading as a matter of right and does not need the Court’s permission to
do so.
III. 	CONCLUSION
For the foregoing reasons, the Court DENIES Petitioner’s motion to stay and abey
as moot.
IT IS SO ORDERED.
Dated: January 12, 2026 	_____________________________________________
HON. MICHELLE M. PETTIT
United States Magistrate Judge
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