Blake v. Ndoh

• Court: District Court, N.D. California
• Decided: January 18, 2021
• Docket: 3:19-cv-06227
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GORDON BLAKE, Case No. 3:19-cv-06227-WHO

8 Petitioner, ORDER ON MOTION TO DISMISS v. 9 Re: Dkt. No. 13 10 ROSEMARY NDOH, Respondent. 11

12 13 Before me is respondent Rosemary Ndoh’s motion to dismiss Claim I of Gordon Blake’s 14 petition for a writ of habeas corpus. Because the constitutional issue in that claim was not 15 exhausted before the state courts, the motion is GRANTED without prejudice. The petition may 16 proceed on the remaining two claims. 17 BACKGROUND 18 This motion concerns a narrow procedural issue. Accordingly, I discuss only those facts 19 relevant to resolving it. Both parties agree on all operative facts. 20 Blake, who is represented by counsel, was convicted in California state court of 21 committing various lewd and forceable lewd acts on four minors. See Points and Authority in 22 Support of the Application for Writ of Habeas Corpus (“Pet.”) [Dkt. No. 1-1] 2; Court of Appeal 23 Decision (“COA”) [Dkt. No. 13-1] 1–2. He was sentenced to a term of 194 years to life in prison. 24 COA 2. The California Court of Appeal affirmed, id. 58, and the California Supreme Court 25 denied a petition for review, Dkt. Nos. 13-2, 13-3. Blake is currently confined at Avenal State 26 Prison. Dkt. No. 1 at 1. 27 On October 1, 2019, Blake filed his petition in this District. Dkt. No. 1. The case was 1 responsive motion in March 2020. Dkt. No. 7. After Blake filed a state habeas petition in the 2 California Supreme Court, I granted his motion to stay proceedings. Dkt. No. 10. The California 3 Supreme Court summarily denied the habeas petition in August 2020. Dkt. Nos. 13-3, 13-4. The 4 parties stipulated to, and I approved, a briefing schedule that ended in December 2020. Dkt. No. 5 12. 6 Ndoh moves to dismiss Claim I (of three) of the petition for failure to exhaust. That claim 7 argues that Blake’s convictions on seven counts relating to three of the minors were 8 unconstitutional. Pet. 22. Those counts depend on a finding of “substantial sexual conduct,” here 9 based on masturbation. COA 19. 10 DISCUSSION 11 “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an 12 application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of 13 a State court only on the ground that he is in custody in violation of the Constitution or laws or 14 treaties of the United States.” 28 U.S.C. § 2254(a). 15 Claim I of the petition argues that Blake’s conviction on the relevant counts violated 16 federal constitutional due process and/or the Ex Post Facto Clause. Pet. 22–25. The core of his 17 argument is that the conduct he was convicted of qualifies as masturbation only under statutory 18 amendments that were enacted after the statute of limitations expired on the charges. Pet. 36. 19 Ndoh moves to dismiss because, she argues, this claim was not properly exhausted before the state 20 courts. See generally Motion to Dismiss (“Mot.”) [Dkt. No. 13]. 21 Under 28 U.S.C. § 2254(b)(1), “[a]n application for a writ of habeas corpus on behalf of a 22 person in custody pursuant to the judgment of a State court shall not be granted unless it appears 23 that . . . the applicant has exhausted the remedies available in the courts of the State.” 24 Accordingly, “[b]efore a federal court may grant habeas relief to a state prisoner, the prisoner must 25 exhaust his remedies in state court. In other words, the state prisoner must give the state courts an 26 opportunity to act on his claims before he presents those claims to a federal court in a habeas 27 petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). “Satisfying this exhaustion 1 state courts, so that those courts are alerted to the fact that the prisoners are asserting claims under 2 the United States Constitution and thus given the opportunity to correct alleged violations of 3 prisoners’ federal rights.” Arrendondo v. Neven, 763 F.3d 1122, 1138 (9th Cir. 2014) (internal 4 quotation marks and alteration omitted). 5 There is no dispute about how this issue was and was not brought before the California 6 state courts on direct appeal. Blake did not pursue it in the opening brief of his direct appeal to the 7 Court of Appeal. He did raise it in the reply brief in the Court of Appeal. The Court of Appeal, in 8 a footnote, declined to reach the argument, explaining that “[i]t is well settled that new arguments 9 raised for the first time in the reply brief will not be considered out of fairness to the respondent, 10 unless good reason is shown for the failure to present such point earlier.” COA 31 n.11. It went 11 on to hold that “defendant proffers no reason at all why we should depart from the general rule, 12 and the contention is forfeited.” Id. Blake also requested to file a supplemental brief on the issue, 13 but the request was denied. Later, Blake did not raise the issue in his petition for review of this 14 ruling in the California Supreme Court. 15 Ndoh argues that Blake failed to exhaust his claim. Notably, Blake did raise a separate but 16 related argument about the counts before both courts that the Court of Appeal discussed 17 extensively—namely that his conduct did not qualify as “substantial sexual conduct” under the 18 statute and was, accordingly, time-barred. See COA 19. 19 I agree that Blake did not exhaust this claim because he failed to raise it in the California 20 Supreme Court. O’Sullivan held that exhaustion “require[es] state prisoners to file petitions for 21 discretionary review when that review is part of the ordinary appellate review procedure in the 22 State.” 526 U.S. at 847. No one disputes that the California Supreme Court ordinarily accepts 23 petitions for discretionary review and, indeed, Blake filed such a petition here. Much of Blake’s 24 briefing on this point argues that the claim was properly exhausted in the Court of Appeal. But a 25 “claim [i]s not ‘fairly presented’ to the California Supreme Court” just because it is “presented . . . 26 to the California Court of Appeal.” Wooten v. Kirkland, 540 F.3d 1019, 1025 (9th Cir. 2008). 27 There is no need to address whether the claim was adequately raised in the Court of Appeal if it 1 Blake makes two arguments in response to this point about exhaustion in the California 2 Supreme Court. First, he contends that “[i]t would have been contemptuous for [counsel] to raise 3 an issue in the Petition for Review which the state court of appeal had ruled defaulted” and 4 counsel “acted under compulsion of state ethical and procedural rules” it not raising it. Response 5 to the Mot. (“Oppo.”) [Dkt. No. 16] 7. Blake has identified no rule—certainly not one that would 6 place counsel in contempt—that would have barred petitioning the court for review on this 7 ground. The California Rules of Court provide, “[a]s a policy matter, on petition for review the 8 Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the 9 Court of Appeal.” CAL. R. OF COURT 8.500(c)(1) (emphasis added). At worst for Blake, then, the 10 petition would have simply been denied (as it was even without that claim). Blake could have 11 petitioned for review both on the substantive constitutional argument and on the Court of Appeal’s 12 refusal to entertain the argument or permit supplemental briefing. At the very least, O’Sullivan 13 required Blake to present the argument to the California Supreme Court so that it had a chance to 14 take the issue under consideration. 15 Second, Blake argues that the issue was sufficiently raised in his habeas petition in front of 16 the California Supreme Court. Oppo. 8–11. That petition, however, does not raise the issue. 17 Blake nonetheless argues the issue was sufficiently raised because he argued that he was given 18 unconstitutionally ineffective assistance of counsel when counsel failed to raise the ex post facto 19 issue on direct appeal. 20 The Ninth Circuit has rejected this theory. In Rose v. Palmateer, the petitioner argued in 21 the federal habeas proceeding that use of a confession and videotaped reenactment of the crime 22 violated his Fifth and Fourteenth Amendment rights. 395 F.3d 1108, 1110 (9th Cir. 2005). The 23 Ninth Circuit held that the claim had not been exhausted. There was no dispute that the claim was 24 not raised on direct appeal. The petitioner argued, as Blake argues here, that the claim was 25 adequately raised in state post-conviction proceedings. Id. at 1110–11. That petitioner, also like 26 Blake, did not raise the substantive Fifth or Fourteenth Amendment claims; instead, he argued that 27 he was denied effective assistance of counsel when trial counsel failed to exclude the evidence and 1 In rejecting that argument, the court explained that “petitioners must plead their claims 2 with considerable specificity before the state courts in order to satisfy the exhaustion requirement” 3 and that courts “require a petitioner to articulate the substance of an alleged violation with some 4 particularity.” Id. Accordingly, it held that “although Rose’s Fifth Amendment claim is related to 5 his claim of ineffective assistance, he did not fairly present the Fifth Amendment claim to the state 6 courts when he merely discussed it as one of several issues which were handled ineffectively by 7 his trial and appellate counsel.” Id. at 1112. An ineffective assistance of counsel claim and the 8 underlying alleged constitutional violation “[w]hile admittedly related, . . . are distinct claims with 9 separate elements of proof, and each claim should have been separately and specifically presented 10 to the state courts.” Id. 11 So too here. As in Rose, litigation of Blake’s ineffective assistance claim is separate from 12 (though related to) his ex post facto claim. As in Rose, it would be possible to resolve the 13 ineffective assistance claim without ruling on the merits of the ex post facto issue: the former 14 requires a petitioner “to show that his counsel’s representation fell below an objective standard of 15 reasonableness and that there was a reasonable probability that, but for counsel’s unprofessional 16 errors, the result of the proceeding would have been different.” Id. (citing Strickland v. 17 Washington, 466 U.S. 668, 687–88 (1984)) (internal quotation marks and alteration omitted). And 18 as in Rose, that claim “could have been rejected regardless of whether [Blake’s] Fifth Amendment 19 [or Ex Post Facto Clause] rights were violated.” Id. 20 Blake makes several attempts to distinguish this case from Rose. He first argues that, in 21 Rose, counsel might have had “tactical” reasons to not pursue or appeal the Fifth Amendment 22 claim—for instance because the confession “may include elements of justification or excuse” that 23 would not otherwise be admissible. Oppo. 9. He argues that, consequently, the ineffective 24 assistance claim and the underlying claim were “decoupled.” Id. Blake speculates that there is no 25 reason that counsel here would not include the claims, yet much of Blake’s brief is devoted to 26 explaining that counsel chose not to pursue the claim in a petition for review because of worry 27 about “ethical and procedural rules.” More importantly, Rose’s holding was not, as I read it and 1 there is some discussion about how the lack of the claim in the post-conviction petition appeared 2 “deliberate,” that discussion precedes the core of the court’s analysis of whether the issue was 3 “fairly presented.” See id. (ending the discussion of tactics and holding that “[f]urthermore” the 4 claim was not fairly presented). Cf. Guerra v. Montgomerry, No. 19-CV-07165-HSG, 2020 WL 5 2084896, at *2 (N.D. Cal. Apr. 30, 2020) (interpreting Rose to hold that “[a] claim that trial [or] 6 appellate counsel was ineffective for failing to raise a claim in the state courts does not fairly 7 present the underlying claim to the state courts”); Jaffe v. Brown, No. C 05-4439 PJH, 2012 WL 8 5303290, at *5 (N.D. Cal. Oct. 25, 2012) (“[Rose] held that claims that trial and/or appellate 9 counsel were ineffective in failing to raise a claim in the state courts do not fairly present the 10 underlying claim to the state courts.”); Robinson v. Miller, No. C 11-1339 LHK PR, 2012 WL 11 3156816, at *6 (N.D. Cal. Aug. 3, 2012) (interpreting Rose to hold that “a claim of ineffective 12 assistance of appellate counsel does not fairly present the underlying claim to the state court”). 13 Considering his argument liberally, Blake also contends that the fact that his counsel 14 changed so frequently on appeal led to this issue simply being missed. See Oppo. 10. That might 15 explain the failure to include the issue in the opening brief at the Court of Appeal, but there is no 16 need to address that question because Blake affirmatively represents that counsel chose not to raise 17 that issue in the petition for review. That, at least, was concededly not a logistical slip up. 18 Additionally, it would not explain the failure to include the issue in the state habeas petition, 19 which was filed after this case was. 20 Blake also relies on two cases that he asserts refused to apply Rose to claims like his. 21 Neither case resembles this one or Rose. In Ruiz v. Hall, the government relied on Rose because 22 the petitioner’s claim appeared in a “subheading” to a larger argument. 224 F. App’x 567, 568 23 (9th Cir. 2007). However, “several pages of analysis and citation to develop the factual and legal 24 basis for relief” accompanied the claim. Id. As a result, the petitioner’s claim was exhausted 25 because it was included in his state appellate briefing. Id. Blake also relies on Hardy v. Maloney, 26 No. 01-CV-10794-PBS, 2018 WL 1257758 (D. Mass. Mar. 18, 2018), aff’d, 909 F.3d 494 (1st Cir. 27 2018). There, the petitioner alleged four grounds for ineffective assistance of counsel in federal 1 claim in his 2010 state appeal,” so the respondent argued they were not exhausted. Id., at *7–*8. 2 That is not a Rose issue at all because the grounds were raised. The court dispensed with the Rose 3 argument in a brief footnote. See id., at *8 n.12. The issue here is that the California Supreme 4 Court was not presented with the underlying constitutional question. 5 The exhaustion doctrine fundamentally requires a petitioner to fairly present an issue so 6 that the state courts can resolve it in the first instance. Blake never petitioned the California 7 Supreme Court for review on the issue in Claim I (despite raising it in reply in the Court of 8 Appeal) and did not seek post-conviction relief on it in the California Supreme Court. That court 9 had no opportunity to consider it. 10 Because there are two remaining claims, Blake may either dismiss this petition and return 11 to state court to exhaust, proceed only on the exhausted claims, or move to stay the petition so that 12 he can exhaust his claims. See Ford v. Hubbard, 305 F.3d 875, 882–86 (9th Cir. 2002), amended, 13 330 F.3d 1086 (9th Cir. 2003). In his Opposition, he makes clear that he wishes to proceed on the 14 remaining two claims if the motion is granted. Oppo. 12. He requests leave to amend to omit the 15 claim, but amendment is unnecessary because the claim is now dismissed and the petition contains 16 only exhausted claims that can be addressed. Rose v. Lundy, 455 U.S. 509, 520 (1982). If Blake 17 changes his mind and wishes instead to stay this proceeding again to exhaust the claim in state 18 court, a motion to do so must be made by February 15, 2021. This will be Blake’s final 19 opportunity to stay the case to exhaust all of his claims. If the case is stayed again and Blake fails 20 to exhaust all of his claims, the amended petition he would file would only proceed on the 21 exhausted claims. 22 CONCLUSION 23 The motion to dismiss Claim I is GRANTED without prejudice. If Blake wishes to stay 24 this proceeding to exhaust in state court, he must move to do so by February 15, 2021. If no such 25 motion is filed, Ndoh shall file an answer on the remaining claims by April 15, 2021, and Blake 26 shall file a reply by May 15, 2021. If a motion to stay is filed, this schedule will be vacated. The 27 1 parties may also file a stipulated proposed order with a different briefing schedule. 2 IT IS SO ORDERED. 3 Dated: January 18, 2021 □ 5 . Witliam H. Orrick 6 United States District Judge 7 8 9 10 11 ag 12

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