1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL BROWN, Case No. 22-cv-05969-HSG
8 Petitioner, ORDER REQUIRING ELECTION BY PETITIONER 9 v.
10 TAMMY CAMPBELL,
11 Respondent.
12 13 Petitioner, an inmate at San Quentin State Prison, filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1 (“Petition”). Respondent filed an answer 15 to the Petition. Dkt. Nos. 11-12 (“Answer”). Although given notice and an opportunity to do so, 16 petitioner did not file a traverse. See generally, Dkt. 17 In the Answer, respondent argued that petitioner had failed to exhaust two of the five 18 claims stated in the Petition. The Court now requires petitioner to make an election. 19 DISCUSSION 20 A. Procedural History 21 Petitioner was found guilty by an Alameda County jury of forcible oral copulation (Cal. 22 Penal Code § 288a(c)(2)(A)). Ans. at 1. Petitioner stipulated that he had seven prior felony 23 convictions. See id. He was sentenced to eight years imprisonment. See id. 24 Petitioner appealed to the California Court of Appeal and argued that his trial counsel was 25 ineffective for allowing a biased juror (Juror No. A11) to remain on the jury, see Ans., Ex. G at 2, 26 33-55; that the prosecutor engaged in misconduct, see id. at 2-3, 56-87; that the trial court 27 improperly limited his ability to impeach the victim with extrinsic evidence, see id. at 3-4, 88-104; 1 104-117; that the jury instructions improperly emphasized the victim’s testimony and lightened 2 the burden of proof, see id. at 4-5, 118-129; and cumulative error, see id. at 5, 130-33. Petitioner 3 did not argue that his Sixth Amendment right to a fair and impartial jury was violated by the 4 presence of Juror No. A11, nor did he argue that his rights under the Racial Justice Act had been 5 violated. See generally, id. The California Court of Appeal affirmed the conviction in a reasoned 6 opinion. See Ans., Ex. H. 7 Petitioner subsequently filed a petition for review by the California Supreme Court, which 8 was summarily denied. See Ans., Ex. J. 9 This Court received the Petition on October 11, 2022. See Pet. at 1. United States 10 Magistrate Judge Sallie Kim found that petitioner had stated the following cognizable claims: 11 “that he was denied an impartial jury when the court (and defense counsel) allowed an admittedly 12 biased juror to sit on the jury; the prosecutor engaged in misconduct during closing argument; and 13 the trial court made evidentiary and instructional errors.” Dkt. No. 7 at 2. Magistrate Judge Kim 14 ordered respondent to address those claims. See id. at 2-3. Magistrate Judge Kim did not find 15 petitioner’s fifth claim, that his rights under California’s Racial Justice Act had been violated, to 16 be cognizable. See generally, id.; see also Pet. at 8 (claiming a violation of California’s Racial 17 Justice Act). 18 This action subsequently was reassigned to the undersigned. See Dkt. Nos. 9-10. 19 B. Legal Standard 20 Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 21 either the fact or length of their confinement are required first to exhaust state judicial remedies, 22 either on direct appeal or through collateral proceedings, by presenting the highest state court 23 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 24 federal court. See 28 U.S.C. § 2254(b), (c). The state’s highest court must “be alerted to the fact 25 that the prisoners are asserting claims under the United States Constitution,” Duncan v. Henry, 26 513 U.S. 364, 368 (1995), and must be given an opportunity to rule on the claims even if review is 27 discretionary, see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one 1 remedies doctrine “reflects a policy of federal-state comity” designed to give a State “an initial 2 opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’” Picard v. 3 Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citations omitted). If available 4 state remedies have not been exhausted as to all claims, the district court must dismiss the petition. 5 See Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 6 The court generally may not grant relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(1). 7 C. Analysis 8 Respondent argues that petitioner’s claim of juror bias is unexhausted. See Ans. at 6. 9 Respondent contends that, on direct appeal, petitioner challenged only his trial counsel’s failure to 10 seek the removal of Juror No. A11, rather than separately challenging Juror No. A11’s presence. 11 See id. Respondent concedes that petitioner exhausted the other claims which the Court found 12 cognizable. See generally, id. 13 Petitioner has not responded to the Answer. On the record before the Court, it is 14 undisputed that petitioner did not present his claim of juror bias on appeal. 15 Petitioner’s claim that counsel was ineffective for failing to seek removal of the juror in 16 question is distinct from his claim that the presence of a biased juror deprived him of his right to 17 an impartial jury, and from his claim that the trial court erred in failing to remove the biased juror. 18 A claim that trial counsel was ineffective for failing to raise a claim in the state courts does not 19 fairly present the underlying claim to the state courts. Rose v. Palmateer, 395 F.3d 1108, 1112 20 (9th Cir. 2005) (holding that state court claims that trial counsel and appellate counsel were 21 ineffective in failing to challenge the admission of a confession did not fairly present to the state 22 courts the underlying claim that the admission of the confession was a violation of petitioner’s 23 rights Fifth and Fourteenth Amendment). Accordingly, petitioner has not exhausted state 24 remedies for his claim that Juror No. A11 was biased. 25 D. Requiring Petitioner to Make an Election 26 Petitioner’s federal petition for a writ of habeas corpus contains both exhausted and 27 unexhausted claims and therefore is a “mixed” petition. See Rhines v. Weber, 544 U.S. 269, 277 1 which state remedies have not been exhausted, such as a mixed petition. See Rose, 455 U.S. at 2 522; cf. 28 U.S.C. § 2254(b)(2) (petition may be denied (but not granted) notwithstanding failure 3 to exhaust). 4 Due to a critical one-year statute of limitations on the filing of federal habeas petitions 5 under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C. 6 § 2244(d), the Court is reluctant to dismiss the mixed petition (and quite possibly cause a later- 7 filed petition to be time-barred) without giving petitioner the opportunity to choose how to 8 proceed.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL BROWN, Case No. 22-cv-05969-HSG
8 Petitioner, ORDER REQUIRING ELECTION BY PETITIONER 9 v.
10 TAMMY CAMPBELL,
11 Respondent.
12 13 Petitioner, an inmate at San Quentin State Prison, filed this pro se action seeking a writ of 14 habeas corpus pursuant to 28 U.S.C. § 2254. Dkt. No. 1 (“Petition”). Respondent filed an answer 15 to the Petition. Dkt. Nos. 11-12 (“Answer”). Although given notice and an opportunity to do so, 16 petitioner did not file a traverse. See generally, Dkt. 17 In the Answer, respondent argued that petitioner had failed to exhaust two of the five 18 claims stated in the Petition. The Court now requires petitioner to make an election. 19 DISCUSSION 20 A. Procedural History 21 Petitioner was found guilty by an Alameda County jury of forcible oral copulation (Cal. 22 Penal Code § 288a(c)(2)(A)). Ans. at 1. Petitioner stipulated that he had seven prior felony 23 convictions. See id. He was sentenced to eight years imprisonment. See id. 24 Petitioner appealed to the California Court of Appeal and argued that his trial counsel was 25 ineffective for allowing a biased juror (Juror No. A11) to remain on the jury, see Ans., Ex. G at 2, 26 33-55; that the prosecutor engaged in misconduct, see id. at 2-3, 56-87; that the trial court 27 improperly limited his ability to impeach the victim with extrinsic evidence, see id. at 3-4, 88-104; 1 104-117; that the jury instructions improperly emphasized the victim’s testimony and lightened 2 the burden of proof, see id. at 4-5, 118-129; and cumulative error, see id. at 5, 130-33. Petitioner 3 did not argue that his Sixth Amendment right to a fair and impartial jury was violated by the 4 presence of Juror No. A11, nor did he argue that his rights under the Racial Justice Act had been 5 violated. See generally, id. The California Court of Appeal affirmed the conviction in a reasoned 6 opinion. See Ans., Ex. H. 7 Petitioner subsequently filed a petition for review by the California Supreme Court, which 8 was summarily denied. See Ans., Ex. J. 9 This Court received the Petition on October 11, 2022. See Pet. at 1. United States 10 Magistrate Judge Sallie Kim found that petitioner had stated the following cognizable claims: 11 “that he was denied an impartial jury when the court (and defense counsel) allowed an admittedly 12 biased juror to sit on the jury; the prosecutor engaged in misconduct during closing argument; and 13 the trial court made evidentiary and instructional errors.” Dkt. No. 7 at 2. Magistrate Judge Kim 14 ordered respondent to address those claims. See id. at 2-3. Magistrate Judge Kim did not find 15 petitioner’s fifth claim, that his rights under California’s Racial Justice Act had been violated, to 16 be cognizable. See generally, id.; see also Pet. at 8 (claiming a violation of California’s Racial 17 Justice Act). 18 This action subsequently was reassigned to the undersigned. See Dkt. Nos. 9-10. 19 B. Legal Standard 20 Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings 21 either the fact or length of their confinement are required first to exhaust state judicial remedies, 22 either on direct appeal or through collateral proceedings, by presenting the highest state court 23 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 24 federal court. See 28 U.S.C. § 2254(b), (c). The state’s highest court must “be alerted to the fact 25 that the prisoners are asserting claims under the United States Constitution,” Duncan v. Henry, 26 513 U.S. 364, 368 (1995), and must be given an opportunity to rule on the claims even if review is 27 discretionary, see O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one 1 remedies doctrine “reflects a policy of federal-state comity” designed to give a State “an initial 2 opportunity to pass upon and correct alleged violations of its prisoners’ federal rights.’” Picard v. 3 Connor, 404 U.S. 270, 275 (1971) (internal quotation marks and citations omitted). If available 4 state remedies have not been exhausted as to all claims, the district court must dismiss the petition. 5 See Rose v. Lundy, 455 U.S. 509, 510 (1982); Guizar v. Estelle, 843 F.2d 371, 372 (9th Cir. 1988). 6 The court generally may not grant relief on an unexhausted claim. See 28 U.S.C. § 2254(b)(1). 7 C. Analysis 8 Respondent argues that petitioner’s claim of juror bias is unexhausted. See Ans. at 6. 9 Respondent contends that, on direct appeal, petitioner challenged only his trial counsel’s failure to 10 seek the removal of Juror No. A11, rather than separately challenging Juror No. A11’s presence. 11 See id. Respondent concedes that petitioner exhausted the other claims which the Court found 12 cognizable. See generally, id. 13 Petitioner has not responded to the Answer. On the record before the Court, it is 14 undisputed that petitioner did not present his claim of juror bias on appeal. 15 Petitioner’s claim that counsel was ineffective for failing to seek removal of the juror in 16 question is distinct from his claim that the presence of a biased juror deprived him of his right to 17 an impartial jury, and from his claim that the trial court erred in failing to remove the biased juror. 18 A claim that trial counsel was ineffective for failing to raise a claim in the state courts does not 19 fairly present the underlying claim to the state courts. Rose v. Palmateer, 395 F.3d 1108, 1112 20 (9th Cir. 2005) (holding that state court claims that trial counsel and appellate counsel were 21 ineffective in failing to challenge the admission of a confession did not fairly present to the state 22 courts the underlying claim that the admission of the confession was a violation of petitioner’s 23 rights Fifth and Fourteenth Amendment). Accordingly, petitioner has not exhausted state 24 remedies for his claim that Juror No. A11 was biased. 25 D. Requiring Petitioner to Make an Election 26 Petitioner’s federal petition for a writ of habeas corpus contains both exhausted and 27 unexhausted claims and therefore is a “mixed” petition. See Rhines v. Weber, 544 U.S. 269, 277 1 which state remedies have not been exhausted, such as a mixed petition. See Rose, 455 U.S. at 2 522; cf. 28 U.S.C. § 2254(b)(2) (petition may be denied (but not granted) notwithstanding failure 3 to exhaust). 4 Due to a critical one-year statute of limitations on the filing of federal habeas petitions 5 under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 U.S.C. 6 § 2244(d), the Court is reluctant to dismiss the mixed petition (and quite possibly cause a later- 7 filed petition to be time-barred) without giving petitioner the opportunity to choose how to 8 proceed. Accordingly, instead of an outright dismissal of the action, this Court will allow 9 petitioner to choose whether he wants to: 10 (1) dismiss the unexhausted claim of juror bias and non-cognizable claim under the Racial 11 Justice Act, and go forward in this action with only the three claims which were both 12 exhausted and found cognizable by Magistrate Judge Kim; 13 (2) dismiss this action and return to state court to exhaust his unexhausted claims before filing 14 a new federal petition presenting all of his claims; or 15 (3) file a motion for a stay of these proceedings while he exhausts his unexhausted claims in 16 the California Supreme Court. 17 Petitioner is cautioned that each of the options have risks which he should take into account in 18 deciding which option to choose. If he chooses option (1) and goes forward with only his 19 exhausted claims, he may face dismissal of any later-filed petition. See 28 U.S.C. § 2244(b). If he 20 chooses option (2), dismissing this action and returning to state court to exhaust all claims before 21 filing a new federal petition, his new federal petition might be rejected as time-barred. See 28 22 U.S.C. § 2244(d). If he chooses option (3), he must file a motion in this Court to obtain a stay and 23 (if the motion is granted) then must act diligently to file in the California Supreme Court, to obtain 24 a decision from the California Supreme Court on his unexhausted claims, and to return to this 25 Court. And under option (3), this action stalls: this Court will do nothing further to resolve the 26 case while petitioner is diligently seeking relief in state court. In Rhines, the U.S. Supreme Court 27 1 discussed the stay-and-abeyance procedure for mixed habeas petitions.1 The Supreme Court 2 cautioned district courts against being too liberal in allowing a stay because a stay works against 3 several of the purposes of AEDPA in that it “frustrates AEDPA’s objective of encouraging finality 4 by allowing a petitioner to delay the resolution of the federal proceedings” and “undermines 5 AEDPA’s goal of streamlining federal habeas proceedings by decreasing a petitioner’s incentive 6 to exhaust all his claims in state court prior to filing his federal petition.” Rhines, 544 U.S. at 277. 7 A stay and abeyance “is only appropriate when the district court determines there was good cause 8 for the petitioner’s failure to exhaust his claims first in state court,” the claims are not meritless, 9 and there are no intentionally dilatory litigation tactics by the petitioner. Id. at 277-78. Any stay 10 must be limited in time to avoid indefinite delay. Id. Reasonable time limits would be thirty (30) 11 days to get to state court, as long as necessary in state court, and thirty (30) days to get back to 12 federal court after the final rejection of the claims by the state court. See id. at 278; Kelly, 315 13 F.3d at 1071. If petitioner files a motion for a stay, he must show that he satisfies the Rhines 14 criteria or must comply with the King/Kelly requirements. 15 CONCLUSION 16 For the foregoing reasons, the Court orders as follows. 17 1. Within twenty-eight (28) days from the date of this order, petitioner must file a 18 notice in which he states whether he chooses to 19 (1) dismiss the unexhausted and non-cognizable claims, and go forward in this action with 20 only those claims that have been both exhausted and found cognizable; 21 1 There is an alternate stay procedure for a petitioner who has some unexhausted claims he wants 22 to present in his federal habeas action, but the procedure often is unhelpful because statute of limitations problems may exist for claims that are not sufficiently related to the claims in the 23 original petition. Under the procedure outlined in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), “(1) a petitioner 24 amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court 25 to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 26 2009) (citing Kelly, 315 F.3d at 1070-71). A petitioner seeking to avail himself of the Kelly three- step procedure is not required to show good cause as under Rhines, but rather must show that the 27 amendment of any newly exhausted claims back into the petition satisfies both Mayle v. Felix, 545 1 (2) dismiss this action and return to state court to exhaust his unexhausted claims before 2 || returning to federal court to present all of his claims in a new petition; or 3 (3) move for a stay of these proceedings while he exhausts his state court remedies for the 4 || unexhausted claims. 5 If petitioner chooses Option (1) or Option (2), his filing need not be a long document; it is 6 || sufficient if he files a one-page document entitled “Notice of Choice By Petitioner” and states 7 simply: “Petitioner chooses to proceed under option _ provided in the Order Granting Motion to 8 || Dismiss; Requiring Election By Petitioner.” Petitioner would have to insert a number in place of 9 || the blank space to indicate which of the first two options he chooses. 10 If he chooses Option (3), within twenty-eight (28) days from the date of this order, 11 petitioner must file a motion for a stay in which he explains why he failed to exhaust his 12 || unexhausted claims in state court before presenting them to this Court, that his claims are not 5 13 meritless, and that he is not intentionally delaying resolution of his constitutional claims. If 14 || petitioner does not choose one of the three options or file a motion by the deadline, the Court will 3 15 dismiss the unexhausted claim of juror bias, dismiss the non-cognizable claim filed under the a 16 || Racial Justice Act, and address petitioner’s three remaining claims on the merits.
IT IS SO ORDERED. 19 ||} Dated: 6/16/2023 20 Abgepured 3 Nhl). HAYWOOD S. GILLIAM, JR. United States District Judge 22 23 24 25 26 27 28