1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. CONTRERAS, Case No.: 16cv2813-BTM(KSC)
12 Petitioner, REPORT AND RECOMMENDA- 13 v. TION RE RESPONDENT'S MOTION TO DISMISS THE PETITION 14 WARREN L. MONTGOMERY, Warden,
15 Respondent. [Doc. No. 18] 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a 18 Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his 19 conviction in San Diego Superior Court Case No. SCD238193. [Doc. No. 1; Doc. No. 20 19-1, at p. 1.] When the Petition was filed on November 14, 2016, it was subject to 21 dismissal under Rose v. Lundy, 455 U.S. 509, 522 (1982), because it included both 22 exhausted and unexhausted claims. [Doc. Nos. 1, 2, 5, 9.] Petitioner requested and was 23 granted an unopposed Motion for Stay and Abeyance under Rhines v. Weber, 544 U.S. 24 269 (2005). [Doc. Nos. 5, 9, 10.] The case was then stayed from August 23, 2017 until 25 July 23, 2019, so that petitioner could exhaust his state court remedies. [Doc. Nos. 7, 10, 26 17.] On July 23, 2019, petitioner informed the Court in a Status Report that he had 27 exhausted his state court remedies [Doc. No. 16], so the Court filed an Order Requiring 28 Response to Petition. [Doc. No. 17.] 1 Before the Court is respondent’s Motion to Dismiss the Petition for failure to 2 exhaust state court remedies [Doc. No. 18] and petitioner’s Opposition thereto [Doc. No. 3 22]. In his Opposition, petitioner requests a second stay under Rhines v. Weber, 544 U.S. 4 at 269, so that he can exhaust his unexhausted claims. 5 For the reasons outlined more fully below, IT IS RECOMMENDED that the 6 District Court DENY respondent’s Motion to Dismiss without prejudice and GRANT 7 petitioner a limited, conditional stay under Rhines v. Weber, 544 U.S. at 269, so he can 8 pursue exhaustion of his unexhausted claims. Alternatively, the District Court should 9 give petitioner the option of abandoning his unexhausted claims and filing an Amended 10 Federal Petition that only includes his currently exhausted claims. 11 Discussion 12 In the Motion to Dismiss, respondent argues that the Court should dismiss the 13 Petition without prejudice unless petitioner elects to delete his unexhausted claims and 14 sub-claims and proceed only on his exhausted claims. [Doc. No. 18-1, at pp. 1, 5, 7.] 15 Respondent opposes any request by petitioner for another stay. [Doc. No. 18-1, at p. 5.] 16 If petitioner does opt to dismiss his Amended Petition rather than abandon and delete his 17 unexhausted claims, respondent believes any subsequent petition could be time barred. 18 [Doc. No. 18-1, at p. 6.] 19 In his Opposition, petitioner claims he was unaware that all his claims were not 20 exhausted until he received respondent’s Motion to Dismiss. He also represents he was 21 being assisted by an attorney, who was appointed to represent him in connection with his 22 state habeas proceedings, and this attorney was unable to explain why all his claims were 23 not exhausted. [Doc. No. 22, at pp. 2-3.] He therefore requests another stay of the 24 proceedings under Rhines, 544 U.S. at 269, so he can continue to exhaust his state court 25 remedies as to all his unexhausted claims. [Doc. No. 22, at p. 3.] 26 I. The Exhaustion Requirement. 27 “An application for a writ of habeas corpus on behalf of a person in custody 28 pursuant to the judgment of a State court shall not be granted unless it appears that . . . the 1 applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. 2 § 2254(b)(1)(A). “[E]xhaustion of state remedies requires that petitioners ‘fairly present’ 3 federal claims to the state courts in order to give the State the ‘opportunity to pass upon 4 and correct’ alleged violations of its prisoners’ federal rights. [Citations omitted.]” 5 Duncan v. Henry, 513 U.S. 364, 365 (1995). Federal Courts may not “consider any 6 federal-law challenge to a state-court decision unless the federal claim ‘was either 7 addressed by or properly presented to the state court that rendered the decision. . . .’” 8 Howell v. Mississippi, 543 U.S. 440, 443 (1997) (internal citations omitted). The 9 exhaustion requirement is satisfied if the legal theory raised in the Federal Petition is the 10 “substantial equivalent” of that presented in the state court system. Picard v. Connor, 11 404 U.S. 270, 278 (1971). 12 II. Underlying Conviction in San Diego Superior Court Case No. SCD238193. 13 Petitioner was convicted by a jury of attempted, premeditated murder and shooting 14 at an occupied vehicle for the benefit of, at the direction of, or in association with a 15 criminal street gang, with the specific intent to promote, further, or assist in criminal gang 16 conduct. [Doc. No. 19-1, at p. 2.] The trial court sentenced petitioner to life in state 17 prison for the attempted murder, plus 25 years to life because of a gun enhancement. As 18 to another charge of felon in possession of a firearm, the jury was unable to reach a 19 verdict. [Doc. No. 19-1, at p. 2.] 20 The jury found it was “not true” that petitioner personally discharged a firearm 21 during the commission of the offense. [Doc. No. 19-1, at p. 2.] This finding indicates the 22 jury concluded petitioner was involved in the shooting as the driver of the vehicle and the 23 unidentified shooter was the passenger in the vehicle. By contrast, the prosecution’s 24 theory of the case was that petitioner was the passenger in the car, and he was the person 25 who shot the victim. [Doc. No. 19-1, at pp. 2-9; 12-16.] Based on evidence presented at 26 trial (e.g., there was evidence petitioner told the police he was the driver, not the 27 passenger on the night in question), the trial court believed it was appropriate to instruct 28 1 the jury on an additional theory of liability – aiding and abetting the shooter. [Doc. No. 2 19-1, at p. 10.] 3 III. Direct Appeals. 4 A. California Court of Appeal. 5 In a direct appeal to the California Court of Appeal, petitioner raised the following 6 issues: 7 (1) The trial court violated petitioner’s right to due process, because the jury 8 was instructed with CALCRIM No. 401 (aiding and abetting) and was then given a 9 modified version of CALCRIM No. 1403 (limited purpose of evidence of gang activity). 10 [Doc. No. 19-1, at pp. 10-15.] According to petitioner, the modified version of 11 CALCRIM No. 1403 allowed the jury to consider character evidence (i.e., petitioner’s 12 membership in a gang) to determine whether he aided and abetted the shooter, and this 13 lowered the prosecution’s burden of proof. [Doc. No. 19-1, at pp. 3, 9-16.] 14 (2) The trial court violated petitioner’s right to due process, because the jury 15 was unexpectedly instructed on the natural and probable consequences theory of aider 16 and abettor liability in response to questions by the jury. Defense counsel objected to this 17 instruction, stating “different strategies might have been used” if it was known this 18 instruction would be given. On appeal, petitioner argued the trial was unfair, because he 19 did not have adequate notice he could be convicted under this theory. [Doc. No. 19-1, at 20 pp. 3, 16-26.] 21 (3) Petitioner’s constitutional right to due process was violated, because the 22 cumulative effect of these instructional errors rendered the trial so unfair that the 23 judgment against him should be reversed. [Doc. No. 19-1, at pp. 3, 26.] 24 In an unpublished opinion filed on May 13, 2015 in Case No. D064999, the 25 California Court of Appeal rejected all of petitioner’s arguments and affirmed the 26 judgment. [Doc. No. 19-1, at p. 26.] 27 / / / 28 / / / 1 B. California Supreme Court. 2 On June 16, 2015, a Petition for Review was filed in the California Supreme Court. 3 [Doc. No. 19-2, at p. 69.] This Petition for Review raised the same issues that were 4 previously presented to and rejected by the California Court of Appeal. [Doc. No. 19-2, 5 at pp. 2-3; 11-40.] The California Supreme Court summarily denied the Petition for 6 Review on August 12, 2015. [Doc. No. 19-3, at p. 1.] Accordingly, petitioner has 7 exhausted his state court remedies as to all the issues he raised in his direct appeals. 8 IV. State Habeas Petitions. 9 A. San Diego Superior Court. 10 Petitioner filed his first state habeas petition in the San Diego Superior Court. A 11 copy of this petition is attached as Exhibit C to the Federal Petition and the file stamp 12 indicates the petition was filed in San Diego Superior Court on November 14, 2016. An 13 attached proof of service indicates the petition was served by mail on November 8, 2016. 14 [Doc. No. 1, at pp. 104-128; Doc. No. 19-1, at p. 2.] In addition, an attached Declaration 15 explains that the petition was typed by a law library clerk who was helping petitioner. 16 This Declaration also states that the law library clerk typed the Federal Petition, which 17 was protectively filed around the same time on November 14, 2016. [Doc. No. 1, at 18 pp. 1, 141.] The habeas petition filed in the San Diego Superior Court includes the 19 following claims: 20 (1) Petitioner is entitled to habeas relief, because he is “actually innocent” based 21 on “new evidence.” [Doc. No. 1, at p. 108 (Exh. C to Pet’n).] This claim is based on a 22 witness declaration obtained after petitioner was convicted. [Doc. No. 1, at pp. 111-113 23 (Exh. C. to Pet’n).] 24 (2) Petitioner’s right to due process was violated, because the trial court 25 instructed the jury with aiding and abetting instructions (CALCRIM Nos. 400 and 401) 26 and the corpus delicti instruction (CALCRIM No. 359). Petitioner claims the aiding and 27 abetting instructions were prejudicial, because there was insufficient evidence in the 28 record to support this theory of liability. In addition, petitioner contends the jury was 1 confused by the aiding and abetting instructions based on the two notes they sent out 2 during deliberations seeking clarification. Petitioner therefore believes he was found 3 guilty based on an “inadequate theory of liability.” [Doc. No. 1, at pp. 114-115 (Exh. C 4 to Pet’n).] With respect to the corpus delicti instruction (CALCRIM No. 359), petitioner 5 claims there is a portion of this instruction that is ambiguous, and, as a result, the jury 6 could have found him guilty based on his extrajudicial statements alone. [Doc. No. 1, at 7 pp. 116-117.] 8 (3) Petitioner’s right to due process was violated when the trial court admitted 9 evidence of his affiliation with a gang through testimony by a booking officer who 10 questioned petitioner while he was being booked on prior, unrelated charges. Petitioner 11 told the booking officer he was a member of the Encanto Street Gang. [Doc. No. 1, at 12 p. 118.] According to petitioner, his prior statement about his gang affiliation should not 13 have been admitted, because it was made without the warning required under Miranda v. 14 Arizona, 384 U.S. 436 (1966). Petitioner believes the admission of this evidence was 15 prejudicial, because the jury was instructed with CALCRIM No. 1403 indicating the jury 16 could use gang evidence to determine whether petitioner aided and abetted the perpetrator 17 in the crimes of attempted murder, shooting at an occupied motor vehicle, and assault 18 with a firearm. [Doc. No. 1, at p. 118, (Exh. C to Pet’n.] As part of this claim, petitioner 19 also alleges that his right to confront witnesses was violated, because a gang expert 20 testified that petitioner is an admitted gang member based on hearsay statements made by 21 other officers in violation of Crawford v. Washington, 541 U.S. 36 (2004). 22 (4) Petitioner alleges he was denied his right to effective assistance of counsel, 23 because his trial attorney failed to properly investigate and locate witnesses to the 24 shooting. [Doc. No. 1, at p. 121 (Exh. C to Pet’n).] 25 (5) Petitioner alleges his constitutional right to due process was violated, 26 because the cumulative effect of the errors alleged in Grounds 2 through 4 above 27 rendered the trial so unfair that the judgment against him should be reversed. [Doc. 28 No. 1, at p. 122 (Exh. C to Pet’n).] 1 (6) Petitioner alleges he was denied his right to effective assistance of appellate 2 counsel, because his appellate attorney failed to adequately raise Grounds 2 through 5. 3 The trial court’s decision addresses all claims raised in this initial petition. [Doc. No. 1, 4 at p. 123 (Exh. C to Pet’n).] 5 On December 12, 2016, the San Diego Superior Court issued an Order Denying the 6 Petition for Writ of Habeas Corpus (Case No. HC22702, reviewing SCD238193). The 7 Order addresses but rejects all claims in the petition. [Doc. No. 19-5, at pp. 1-9.] 8 B. California Court of Appeal. 9 The record indicates petitioner filed two different sets of state habeas petitions in 10 the California Court of Appeal. 11 1. Round One—California Court of Appeal Case No. D071550. 12 On January 10, 2017, petitioner filed his first state habeas petition in the California 13 Court of Appeal requesting an order to show cause [Doc. No. 19-6, at p. 1] and raising 14 the same issues he raised in the petition he filed in the San Diego Superior Court. [Doc. 15 No. 19-6, at pp. 12-21.] It appears this petition was also typed by the law library clerk 16 who helped petitioner with his Federal Petition and the habeas petition he filed in San 17 Diego Superior Court. [Compare Doc. No. 1, at pp. 1-29 with Doc. No. 1, at pp. 104-128 18 and Doc. No. 19-6.] In response to this petition, the California Court of Appeal issued an 19 Order to Show Cause on January 24, 2017 and returned the case to the San Diego 20 Superior Court for additional briefing and “any evidentiary hearing that may be required” 21 to determine the matter (Case No. D071550 re SCD238193). [Doc. No. 19-7, at p. 1.] 22 The potential evidentiary hearing apparently pertained to petitioner’s “new evidence” 23 claim. Rather than conduct an evidentiary hearing, the trial court assumed the new 24 witness would offer testimony consistent with her declaration and received the 25 declaration into evidence. The San Diego Superior Court then concluded this new 26 evidence would not have changed the outcome of the trial. [Doc. No. 19-10, at p. 2.] 27 The California Court of Appeal’s online docket indicates an order denying the habeas 28 petition in Case No. D071550 was issued on February 26, 2018. 1 The Court was unable to locate any evidence in the record indicating petitioner 2 presented Claims 2 through 6 to the California Supreme Court. It therefore appears 3 petitioner has not exhausted Claims 2 through 6. However, as outlined more fully below, 4 it does appear petitioner exhausted his “new evidence” claim (i.e., Claim 1). 5 2. Round 2--California Court of Appeal Case No. D073993. 6 On or about May 21, 2018, petitioner filed a second habeas petition in the 7 California Court of Appeal. Although the copy of the petition submitted with 8 respondent’s Lodgments shows this petition was filed in Case No. D071550, the 9 California Court of Appeal’s online docket indicates this petition was originally filed in 10 Case No. D073993 on May 17, 2018, and then a corrected version of the petition was 11 filed on May 21, 2018. [Doc. No. 19-4, at p. 1.] The petition in Case No. D073993 was 12 prepared by an attorney from the office of the Deputy Alternate Public Defender, Vickie 13 Fernandes, and it only addresses petitioner’s “new evidence” claim. [Doc. No. 19-4, at 14 pp. 2; 19-8, at p. 2; Doc. No. 19-9, at pp. 1-3.] In his Opposition to defendants’ Motion 15 to Dismiss, petitioner explains that Attorney Fernandes was appointed to represent him in 16 the habeas corpus proceedings when the California Court of Appeals issued the order to 17 show cause on his “new evidence” claim. [Doc. No. 22, at p. 2.] 18 The California Court of Appeal considered informal briefing on the new evidence 19 claim from the Office of the Attorney General and from Deputy Alternate Public 20 Defender, Vickie Fernandes. [Doc. Nos. 19-8 and 19-9.] In other words, it appears the 21 “new evidence” claim was severed from the other claims petitioner raised in the initial 22 habeas petitions he filed in the San Diego Superior Court and the Court of Appeal, and 23 the Court of Appeal assigned a new case number to his claims. It also appears Attorney 24 Fernandes was appointed to assist petitioner with this “new evidence” claim. On July 27, 25 2018, the California Court of Appeal issued a two-page opinion denying the petition in 26 Case No. D073993, concluding that the “new evidence” was “not of such decisive force 27 and value that it would have more likely than not changed the outcome at trial.” [Doc. 28 No. 19-10, at pp. 1-2.] 1 C. California Supreme Court. 2 On September 13, 2018, the California Supreme Court sent petitioner a letter 3 stating his petition for review of Case No. D073993 was received but was not filed, 4 because the filing deadline was August 27, 2018. Although the record is somewhat 5 unclear, it appears the habeas petition was mislabeled as a petition for review. As a 6 result, the California Supreme Court concluded it did not have jurisdiction to consider 7 petitioner’s request for relief. [Doc. No. 19-11, at p. 1.] 8 The final document lodged by respondent is an unsigned copy of a habeas petition 9 dated November 28, 2018 captioned for the California Supreme Court which, once again, 10 only presents the “new evidence” issue. [Doc. No. 19-12, at p. 2.] This Petition was also 11 prepared and submitted by Attorney Fernandes. [Doc. No. 19-12, at pp. 1, 23-25.] 12 Exhibit A to this petition is a copy of the original habeas petition filed in the San Diego 13 Superior Court, which included the “new evidence” claim and several other claims. 14 [Doc. No. 19-12, at pp. 31-57.] In his Opposition to defendants’ Motion to Dismiss, 15 petitioner states that Attorney Fernandez “had no reasoning or explanation as to why she 16 didn’t include all my grounds that were included in my original petition,” and he “even 17 personally gave her a copy of [his] Federal Habeas so she knew of my need to exhaust all 18 grounds contained in my original petition. . . .” [Doc. No. 22, at p. 3.] 19 The California Supreme Court’s online docket confirms that petitioner filed a 20 habeas petition on November 28, 2018 under Supreme Court Case No. S252791. On 21 July 18, 2019, petitioner filed a Status Report in this Court indicating he had exhausted 22 his state court remedies, and he wished to proceed with his Federal Petition. Attached to 23 the Status Report is the California Supreme Court’s summary denial of the habeas 24 petition filed in Case No. S252791. [Doc. No. 16, at p. 2.] Accordingly, based on the 25 evidence presented, it appears petitioner has exhausted his new evidence claim, because 26 he raised it in the California Superior Court, the California Court of Appeal, and the 27 California Supreme Court. 28 / / / 1 V. Federal Petition for Writ of Habeas Corpus. 2 A. Exhausted and Unexhausted Claims. 3 On November 8, 2016, petitioner mailed his “protective” Federal Petition to this 4 Court, and the Petition was filed on November 14, 2016. [Doc. No. 1, at pp. 1, 28-29.] 5 As outlined more fully below, this Petition is “mixed,” because it includes some 6 exhausted claims and some unexhausted claims. 7 Ground One: Petitioner is entitled to habeas relief, because he is “actually 8 innocent” based on “new evidence” (i.e., a witness declaration obtained after his trial in 9 San Diego Superior Court Case No. SCD238193). [Doc. No. 1, at p. 8.] As noted above, 10 the record indicates petitioner exhausted his state court remedies as to this claim, because 11 he presented it in habeas petitions filed in the San Diego Superior Court, the California 12 Court of Appeal, and the California Supreme Court. 13 Ground Two: Petitioner’s right to due process was violated when the trial court 14 instructed the jury with CALCRIM Nos. 359, 400, 401, 403, and a modified version of 15 CALCRIM No. 1403. Ground Two includes three distinct claims. First, petitioner 16 explains that the trial court gave the jury instructions on the theory of aiding and abetting 17 based on the evidence presented at trial even though the prosecution’s theory of the case 18 was that petitioner was the shooter. Then, in response to a jury question, the trial court 19 gave another instruction on the natural and probable consequences doctrine (CALCRIM 20 No. 403). Because the jury was given both the aiding and abetting instructions and the 21 natural and probable consequences instruction, petitioner contends that the jury should 22 also have been instructed on lesser/necessarily included offenses, such as assault with a 23 firearm. [Doc. No. 1, at pp. 15-18.] 24 The record indicates this claim is not exhausted. Although petitioner challenged 25 the aiding and abetting instructions in his direct appeal, he did so under a different legal 26 theory (i.e., insufficient notice). Petitioner also challenged the aiding and abetting 27 instructions in the habeas petition he filed in the San Diego Superior Court and in the first 28 habeas petition he filed in the California Court of Appeal (Claim 2, Case No. D071550), 1 but, as noted above, the record indicates he did so under a different legal theory (i.e., 2 insufficient evidence in the trial record to support the aiding and abetting instructions) 3 and then did not present the claim to the California Supreme Court. In short, this is 4 essentially a new claim raised for the first time in the instant Federal Petition. 5 Second, petitioner contends that his right to due process was violated because the 6 jury was instructed with CALCRIM No. 359. Petitioner believes CALCRIM No. 359 7 could have been misinterpreted to mean he could be convicted based solely on 8 extrajudicial statements he made to police that were recorded and made available to the 9 jury. [Doc. No. 1, at pp. 18-19.] The record indicates this claim is not exhausted. 10 Petitioner raised this claim in the state habeas petition he filed in the San Diego Superior 11 Court and in the first habeas petition he filed in the California Court of Appeal (Case 12 No. D071550), but, as outlined above, there is nothing in the record to show petitioner 13 raised this claim in the California Supreme Court. 14 Third, petitioner claims that his right to due process was violated when the jury 15 was instructed with a modified version of CALCRIM No. 1403, because the instruction 16 prejudicially advised the jury it could consider gang evidence to determine whether 17 petitioner aided and abetted another in shooting the victim. [Doc. No. 1, at pp. 19-20.] 18 The record shows this claim is exhausted, because it was raised in petitioner’s direct 19 appeals in the California Court of Appeal and the California Supreme Court. 20 Ground Three. Petitioner’s right to due process was violated when the trial court 21 allowed the admission of prior statements petitioner made about his membership in a 22 gang even though he was advised of his rights as required by Miranda v. Arizona, 384 23 U.S. 436 (1966) before he made the statements. According to petitioner, this was 24 “especially prejudicial,” because the jury was instructed with CALCRIM No. 1403 that 25 they could use gang evidence to determine whether petitioner aided and abetted the 26 perpetrator of the crimes of attempted murder, shooting at an occupied motor vehicle, and 27 assault with a firearm. [Doc. No. 1, at p. 21.] The record shows this claim is exhausted, 28 1 because it was raised in petitioner’s direct appeals in the California Court of Appeal and 2 the California Supreme Court. 3 The record indicates the remaining claims, Grounds Four through Seven, have not 4 been exhausted: 5 Ground Four. Petitioner’s right to effective assistance of trial counsel was 6 violated, because his trial attorney inadequately objected to proposed jury instructions for 7 the reasons outlined in Ground Two, which allegedly allowed the jury to “consider 8 inappropriate evidence.” [Doc. No. 1, at p. 23.] In addition, trial counsel inadequately 9 objected to allowing admission of testimony about an offer for a witness to take a lie 10 detector test. [Doc. No. 1, at pp. 22-23.] According to petitioner, the admission of 11 testimony about the lie detector test gave the witness “a false aura of credibility.” [Doc. 12 No. 1, at p. 23.] 13 The record indicates this claim is not exhausted and was raised for the first time in 14 the instant Federal Petition. As outlined above, petitioner did raise a claim of ineffective 15 assistance of trial counsel in his habeas petitions filed in the San Diego Superior Court 16 and the California Court of Appeal (Case No. D071550). However, this other claim was 17 based on different factual allegations (i.e., trial counsel’s failure to investigate), and there 18 is nothing in the record to show petitioner raised any of his ineffective assistance of trial 19 counsel claims in the California Supreme Court. 20 Ground Five. Petitioner’s right to effective assistance of trial counsel was 21 violated, because his trial attorney failed to perform an adequate pre-trial investigation of 22 witnesses to the shooting. [Doc. No. 1, at p. 24.] Because it alleges trial counsel did not 23 adequately investigate by locating and questioning potential witnesses who lived near the 24 site of the shooting, this claim is related to petitioner’s “new evidence” claim. The “new 25 evidence” claim indicates that petitioner’s family members posted signs seeking 26 information about a shooting that occurred on November 19, 2011, and a witness came 27 forward on or about March 18, 2016, after petitioner was convicted. [Doc. No. 1, at 28 p. 12.] 1 The record indicates this claim is not exhausted. Petitioner raised this claim in the 2 state habeas petition he filed in the San Diego Superior Court and in the first habeas 3 petition he filed in the California Court of Appeal (Case No. D071550), but, as outlined 4 above, there is nothing in the record to show petitioner raised this claim in the California 5 Supreme Court. 6 Ground Six. Petitioner’s constitutional right to due process was violated, because 7 the cumulative effect of errors outlined in Grounds One through Five above rendered the 8 trial so unfair that the judgment against him should be reversed. [Doc. No. 1, at p. 25.] 9 The record indicates this claim is not exhausted. Based on different factual and/or legal 10 theories, petitioner did raise two other cumulative error claims. The first was in his direct 11 appeals, and this specific cumulative error claim would be exhausted, but petitioner did 12 not raise the same claim in his Federal Petition. Petitioner also raised a cumulative error 13 claim in the habeas petition he filed in the San Diego Superior Court and in the first 14 habeas petition he filed in the California Court of Appeal (Case No. D071550). 15 However, this claim is based on grounds that are different from the grounds raised in the 16 Federal Petition, and there is nothing to indicate petitioner raised any cumulative error 17 claim in the California Supreme Court. In short, the cumulative error claim in Ground 18 Six of the Federal Petition is not exhausted, because it was raised for the first time in the 19 Federal Petition. 20 Ground Seven. Petitioner’s right to effective assistance of appellate counsel was 21 violated, because his appellate attorney failed to adequately raise Grounds Two through 22 Five above. “In light of the meritorious nature of the claims raised” in Grounds Two 23 through Five, petitioner believes appellate counsel’s failure to raise these claims was 24 prejudicial. [Doc. No. 1, at p. 26.] 25 The record indicates this claim is not exhausted. Petitioner did raise an ineffective 26 assistance of appellate counsel claim in the state habeas petitions he filed in the 27 California Superior Court and in the first habeas petition he filed in the California Court 28 / / / 1 of Appeal (Case No. D071550), but, as outlined above, there is nothing in the record to 2 show petitioner raised this claim in the California Supreme Court. 3 B. Exhausted Claims. 4 Based on the foregoing, the record before the Court indicates petitioner has only 5 exhausted his state court remedies as to the following claims in his Federal Petition: 6 Ground One: Petitioner is entitled to habeas relief, because he is “actually 7 innocent” based on “new evidence” (i.e., a witness declaration obtained after his trial in 8 San Diego Superior Court Case No. SCD238193). [Doc. No. 1, at p. 8.] 9 Ground Two (Partial): Petitioner’s right to due process was violated when the 10 jury was instructed with a modified version of CALCRIM No. 1403, because the 11 instruction prejudicially advised the jury it could consider gang evidence to determine 12 whether petitioner aided and abetted another in shooting the victim. [Doc. No. 1, at 13 pp. 19-20.] The record shows this claim is exhausted as it was raised in petitioner’s 14 direct appeals in the California Court of Appeal and California Supreme Court. 15 Ground Three. Petitioner’s right to due process was violated when the trial court 16 allowed the admission of prior statements petitioner made about his membership in a 17 gang even though he was not advised of his rights as required by Miranda v. Arizona, 384 18 U.S. 436 (1966) before he made the statements. According to petitioner, this was 19 “especially prejudicial,” because the jury was instructed with CALCRIM No. 1403 that 20 they could use gang evidence to determine whether petitioner aided and abetted the 21 perpetrator of the crimes of attempted murder, shooting at an occupied motor vehicle, and 22 assault with a firearm. [Doc. No. 1, at p. 21.] 23 C. Whether the District Court Should Dismiss the Petition or Grant Petitioner 24 a Second Stay. 25 Federal Courts must dismiss habeas petitions that contain both exhausted and 26 unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982). However, Federal Courts 27 may grant a stay of a mixed petition if the petitioner’s request satisfies the requirements 28 set forth in Rhines, 544 U.S. at 269. Before dismissing a mixed petition, the petitioner 1 must be offered an opportunity to amend the petition to delete unexhausted claims and 2 proceed only on exhausted claims. Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014). 3 In Rhines, the petitioner filed an amended petition “asserting 35 claims of 4 constitutional error,” and the State “challenged 12 of those claims as unexhausted.” 5 Rhines, 544 U.S. at 273. By the time the District Court held that eight of the petitioner’s 6 claims were not exhausted, the one-year statute of limitation in [the Antiterrorism and 7 Effective Deal Penalty Act of 1996 (AEDPA)] had run and the petition was subject to 8 dismissal because it included unexhausted claims.1 Id. As a result, the petitioner would 9 have been barred from exhausting his unexhausted claims and returning to Federal Court 10 when exhaustion was completed. Id. at 274. After concluding that “stay and abeyance 11 should be available only in limited circumstances,” the Supreme Court remanded the case 12 for the Court of Appeal to determine whether the stay granted by the District Court was 13 an abuse of discretion. Id. at 277, 279. 14 “[I]f employed too frequently,” the Supreme Court stated in Rhines that a stay 15 would undermine “AEDPA’s objective of encouraging finality by allowing a petitioner to 16 delay the resolution of the federal proceedings.” Id. “Because a stay effectively excuses 17 a petitioner’s failure to present his claims first to the state courts, stay and abeyance is 18 only appropriate when the district court determines there was good cause for the 19 petitioner’s failure to exhaust his claims first in state court. Moreover, even if a 20
21 1 Section 2244(d)(1) of AEDPA provides in part as follows: “A 1-year period of 22 limitation shall apply to an application for a writ of habeas corpus by a person in custody 23 pursuant to the judgment of a State court. The limitation period shall run from the latest of--(A) the date on which the judgment became final by the conclusion of direct review 24 or the expiration of the time for seeking such review; (B) the date on which the 25 impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from 26 filing by such State action. . . .” 28 U.S.C. 2244(d)(2). Section 2244(d)(2) provides that: 27 “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be 28 1 petitioner had good cause for that failure, the district court would abuse its discretion if it 2 were to grant [a request for] a stay when [a petitioner’s] unexhausted claims are plainly 3 meritless.” Id. Thus, “it likely would be an abuse of discretion for a district court to 4 deny a stay and dismiss a mixed petition if the petitioner had good cause for his failure to 5 exhaust, his unexhausted claims are potentially meritorious, and there is no indication 6 that he engaged in intentionally dilatory litigation tactics.” Id. at 270. 7 “A federal habeas petitioner must establish that at least one of his unexhausted 8 claims is not ‘plainly meritless’ in order to obtain a stay under Rhines [citation omitted]. 9 In determining whether a claim is ‘plainly meritless,’ principles of comity and federalism 10 demand that the federal court refrain from ruling on the merits of the claim unless ‘it is 11 perfectly clear that the petitioner has no hope of prevailing.’” Dixon v. Baker, 847 F.3d 12 714, 722 (9th Cir. 2017). 13 Based on the record before the Court, there is no reason to suspect petitioner has 14 engaged in any “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 270. In 15 addition, at this point in the proceedings, this Court is not prepared to find “it is perfectly 16 clear” petitioner has “no hope” of prevailing on any of his unexhausted claims. Rather, 17 the Federal Petition does include at least one colorable federal claim that is unexhausted. 18 As petitioner contends in his Opposition to respondent’s Motion to Dismiss, the 19 California Court of Appeal did appoint counsel and consider his “new evidence” claim. 20 Petitioner argues this indicates his “new evidence” claim has merit. [Doc. No. 22, at 21 p. 4.] The “new evidence” claim is related to unexhausted Ground Five in the Federal 22 Petition. Ground Five in the Federal Petition alleges petitioner received ineffective 23 assistance of counsel, because his trial attorney failed to perform an adequate pre-trial 24 investigation of witnesses to the shooting. [Doc. No. 1, at p. 24.] The “new evidence” 25 consists of a declaration by a witness to the shooting obtained by petitioner’s family after 26 he was convicted by posting flyers near the location of the shooting asking for 27 information from witnesses. [Doc. No. 1, at pp. 111-112 (Exh. C to Pet’n).] 28 / / / 1 “There is little authority on what constitutes good cause to excuse a petitioner’s 2 failure to exhaust.” Blake v. Baker, 745 F.3d 977 (9th Cir. 2014). In Blake, the Ninth 3 Circuit stated that “[t]he good cause element is the equitable component of the Rhines 4 test,” and “[i]t ensures that a stay and abeyance is available only to those petitioners who 5 have a legitimate reason for failing to exhaust a claim in state court.” Id. at 982. “While 6 a bald assertion cannot amount to a showing of good cause, a reasonable excuse, 7 supported by evidence to justify a petitioner’s failure to exhaust, will.” Id. The Ninth 8 Circuit in Blake also noted it was significant that the Supreme Court in [Pace v. 9 Diguglielmo, 544 U.S. 408, 416 (2006)] stated in dicta that “[a] petitioner’s reasonable 10 confusion . . . will ordinarily constitute ‘good cause’ [under Rhines]. . . .” Blake, 745 11 F.3d at 982 (emphasis in original). 12 In Wooten v. Kirkland, 540 F.3d 1019 (9th Cir. 2008), the Federal petition was 13 dismissed for failure to exhaust all issues, and the petitioner argued on appeal that he was 14 entitled to a stay, because he had “good cause” for his failure to exhaust. Specifically, 15 the petitioner argued there was “good cause,” because he was “under the impression” that 16 his counsel raised all his claims in the California Court of Appeal and the California 17 Supreme Court, and his appellate attorney “never advised him that any issues were not 18 exhausted.” Id. at 1021. Because it “would conflict with the Supreme Court’s guidance” 19 in Rhines, the Ninth Circuit in Wooten concluded the petitioner had not established “good 20 cause.” Id. at 1024. “To accept that a petitioner’s ‘impression’ that a claim had been 21 included in an appellate brief constitutes ‘good cause’ would render stay-and-obey orders 22 routine. Indeed, if the court was willing to stay mixed petitions based on a petitioner’s 23 lack of knowledge that a claim was not exhausted, virtually every habeas petitioner, at 24 least those represented by counsel, could argue that he thought his counsel had raised an 25 unexhausted claim and secure a stay. Such a scheme would run afoul of Rhines and its 26 instruction that district courts should only stay mixed petitions in ‘limited 27 circumstances.’” Id. “In other words, [the Ninth Circuit] held that unspecific, 28 unsupported excuses for failing to exhaust—such as unjustified ignorance—did not 1 satisfy the good cause requirement.” Blake, 745 F.3d at 981. See also King v. Ryan, 564 2 F.3d 1133 (9th Cir. 2009) (upholding the denial of a request for a stay based on factual 3 allegations that were “hearsay and insufficiently detailed to establish good cause”). 4 In Blake, the Ninth Circuit indicated ineffective assistance of appellate counsel 5 could establish “good cause” under Rhines. The petitioner in Blake, 745 F.3d at 977, 6 who was convicted of murder and sentenced to death, argued there was “good cause” for 7 a stay, because his appellate counsel on direct appeal “failed to conduct any independent 8 investigation.” Id. at 982. As a result, the attorney did not discover “easily identif[iable] 9 claims” that the petitioner had organic brain damage, psychological disorders, and had 10 endured severe abuse as a child. Id. at 982. No such evidence was ever presented to the 11 state courts. Id. at 982-983. In support of his request for a stay, the petitioner submitted 12 evidence of his history of mental illness and abusive childhood that had been “compiled 13 by his federal post-conviction counsel,” an investigator’s declaration indicating appellate 14 counsel did not allow him to complete his investigation, and declarations by thirteen 15 family members who had not previously been contacted. Id. at 983. Based on this 16 evidence, the Ninth Circuit concluded the petitioner presented “a concrete and reasonable 17 excuse, supported by evidence” to establish there was “good cause” for a stay. Id. In the 18 federal district courts, there is a split of authority as to whether ineffective assistance by 19 post-conviction counsel can constitute good cause to grant a stay. Riner v. Crawford, 415 20 F. Supp. 2d 1207, 1210–11 (D. Nev. 2006) and cases cited therein. 21 Here, in the Motion to Dismiss, respondent opposes petitioner’s request for a stay, 22 because he has already been granted a stay, which lasted almost two years, but he has still 23 not exhausted his state court remedies. [Doc. No. 18-1, at p. 5.] In addition, respondent 24 apparently believes a stay would be futile, because it is likely petitioner’s unexhausted 25 claims would be procedurally barred and/or time-barred unless he can establish he is 26 entitled to equitable tolling. [Doc. No. 18-1, at p. 6 n.3.] 27 Petitioner states in his Opposition to the Motion to Dismiss that he only became 28 aware that all the grounds he presented in his state habeas petitions were not fully 1 exhausted when he received respondent’s Motion to Dismiss, and he believes there is 2 good cause for another stay. First, petitioner alleges that the attorney appointed to assist 3 him with his state habeas petitions misled him about the status of efforts to exhaust his 4 state court remedies as to all claims. Petitioner further represents he “truthfully believed” 5 that his attorney pursued all his claims, so he was prevented from completing the 6 exhaustion process as to all claims because of circumstances he was unable to control. 7 [Doc. No. 22, at pp. 1, 3, 5.] 8 In support of these contentions, petitioner submitted copies of letters from his 9 attorney that support his assertion he believed the attorney presented his unexhausted 10 claims to the California Supreme Court. [Doc. No. 22, at p. 4, referring to Doc. No. 22, 11 at pp. 7-13.] The earliest letter dated March 2, 2018 encloses a copy of the San Diego 12 Superior Court’s denial of the original habeas petition and advises petitioner that another 13 petition could be filed with the California Court of Appeals “within 60 days of the 14 judge’s ruling” to request review of this decision. [Doc. No. 22, at p. 11.] As noted 15 above, the San Diego Superior Court’s December 12, 2016 denial addressed and denied 16 all issues raised in the petition. [Doc. No. 19-5, at pp. 1-9.] Counsel offered to make the 17 filing in the California Court of Appeal on petitioner’s behalf if that is what he wanted to 18 do. [Doc. No. 22, at p. 11.] Even though she apparently did not prepare the original 19 habeas petition in the San Diego Superior Court, this letter shows the attorney’s 20 involvement early in the state court habeas proceedings, as well as her awareness of all 21 issues raised in the original petition. 22 The second letter dated July 31, 2018 advises petitioner of the California Court of 23 Appeal’s denial and encloses a copy of the decision. In this letter, the attorney states she 24 was “working on” a petition to be filed in the California Supreme Court. This letter also 25 states as follows: “The last step is to petition with the California Supreme Court, and 26 make sure we exhaust your state remedies. . . .” [Doc. No. 22, at p. 13 (emphasis 27 added).] The final letter dated June 25, 2019 advises petitioner that the California 28 / / / 1 Supreme Court summarily denied his habeas petition and states that “this means you can 2 now file your federal habeas.” [Doc. No. 22, at p. 8 (Exh. A).] 3 When the attorney’s letters are compared with the filings discussed therein, it 4 appears petitioner would not have had any reason to believe all the claims he raised in his 5 habeas petitions in the San Diego Superior Court and the California Court of Appeal 6 would not have been included in the petition the attorney agreed to file in the California 7 Supreme Court. [Doc. No. 22, at p. 13.] It is entirely possible the attorney only 8 submitted the “new evidence” claim in the petition filed in the California Supreme Court 9 for strategic reasons, such as a belief that it was the most viable claim. However, there is 10 nothing in the letters to petitioner or the remaining record to indicate the attorney had a 11 strategic purpose for only submitting the “new evidence” claim to the California Supreme 12 Court. Nor is there anything in the letters or the remaining record to indicate the attorney 13 explained to petitioner she would not be submitting his other unexhausted claims for 14 consideration by the California Supreme Court. In sum, based on a review of the record 15 before the Court, there is some evidence of “reasonable confusion” on petitioner’s part 16 (Pace, 544 U.S. at 416), and it does appear he has a legitimate reason for failing to 17 complete the exhaustion process in the California Supreme Court. 18 Petitioner also argues there is good cause for a stay for several other reasons. First, 19 petitioner believes there is good cause for a stay, because his claims have merit. In 20 support of this argument, petitioner cites the California Court of Appeal’s decision to 21 issue an order to show cause on his petition. As outlined more fully above, the record 22 indicates the California Court of Appeal issued an order to show cause on petitioner’s 23 “new evidence” claim and returned the case to the San Diego Superior Court for further 24 consideration. [Doc. No. 19-7, at p. 1.] The San Diego Superior Court, the California 25 Court of Appeal, and the California Supreme Court have all denied this claim. However, 26 because he believes his claims have merit, petitioner argues it is possible the California 27 Supreme Court would have granted a petition if all pending, unexhausted issues had been 28 raised. Third, petitioner believes the record shows he has been diligent in pursuing his 1 claims. [Doc. No. 22, at pp. 4-5.] Fourth, petitioner argues it would be a “miscarriage of 2 justice” to dismiss his Federal Petition, because he is innocent and the “new evidence” he 3 presented (i.e., the declaration of an eyewitness) will show he was not involved in the 4 shooting, so the jury would not have found him guilty. [Doc. No. 22, at p. 5.] 5 Even if the District Court grants petitioner’s request for a second stay, the Court 6 notes there may be other reasons, such as a procedural bar or a time bar, that would 7 preclude consideration of some of petitioner’s unexhausted claims in Federal Court. 8 However, it is this Court’s view it would be premature to make any such determinations 9 on an incomplete record and without appropriate briefing by the parties. In other words, 10 any such issues should not foreclose a stay and should be determined when the record is 11 complete. Therefore, under the circumstances presented, it is this Court’s view there is 12 good cause for a second but very limited stay under Rhines with specific deadlines and 13 conditions that petitioner should be required to meet to avoid a dismissal and to prevent 14 any further delay in resolving the instant Federal Petition. 15 Conclusion 16 This Report and Recommendation is submitted to the assigned United States 17 District Judge pursuant to Title 28, United States Code, Section 636(b), and Civil Local 18 Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 19 California. Based on the foregoing, IT IS HEREBY RECOMMENDED that the District 20 Court DENY respondent’s Motion to Dismiss without prejudice and GRANT petitioner’s 21 request for a stay under Rhines v. Weber, 544 U.S. 269 (2005). However, IT IS 22 FURTHER RECOMMENDED that the following or similar limitations and conditions 23 apply to the stay: 24 1. If petitioner wants to try to exhaust the unexhausted claims he raised in the 25 original habeas petitions he filed in the San Diego Superior Court and the California 26 Court of Appeal, he must file a habeas petition with the California Supreme Court no 27 later than 30 days after the District Court issues an order granting a stay. Petitioner is 28 forewarned that any claims raised in a new habeas petition filed in the California 1 Supreme Court MUST be the same as the claims he previously included in the original 2 habeas petitions he filed in the San Diego Superior Court and the California Court of 3 Appeal and may not include any new legal theories. As noted above, the exhaustion 4 requirement is satisfied if the legal theory raised in the Federal Petition is the “substantial 5 equivalent” of that presented in the state court system. Picard v. Conner, 404 U.S. 278. 6 2. When and if petitioner receives notice that the California Supreme Court has 7 accepted a new habeas petition for filing, he must promptly and without delay provide 8 this Court with notice of the filing and a copy of the newly filed petition. If petitioner 9 fails to provide the Court with prompt notice and a copy of any new filing in the 10 California Supreme Court, petitioner is forewarned that his entire Petition is subject to 11 dismissal as a mixed petition under Rose v. Lundy, 455 U.S. 509, 522 (1982). Notice 12 should be considered prompt if it is mailed to the Court within 15 to 20 days after 13 petitioner receives notices from the California Supreme Court that his new petition was 14 accepted for filing. 15 3. If petitioner files a new petition in the California Supreme Court, he must 16 promptly mail his Amended Federal Petition that only includes exhausted claims to this 17 Court within 30 days of receipt of the California Supreme Court’s ruling on his new 18 petition. 19 4. Alternatively, petitioner may elect to abandon the unexhausted claims in his 20 Federal Petition and proceed with his currently exhausted claims by filing an amended 21 petition that only includes his currently exhausted claims. If petitioner elects to abandon 22 his unexhausted claims and proceed only on his currently exhausted claims, he should be 23 required to do so within 30 days of any order by the District Court adopting this Court’s 24 report and recommendation. 25 IT IS HEREBY ORDERED that no later than January 17, 2020 any party to this 26 action may file and serve written objections to this Report and Recommendation. The 27 document should be captioned “Objection to Report and Recommendation. 28 / / / 1 IT IS FURTHER ORDERED that any reply to the objection shall be filed and 2 ||served no later than January 24, 2020. The parties are advised that failure to file 3 || objections with the specified time may waive the right to raise those objections on appear 4 || of this Court order. Martinez v. Yist, 951 F.2d 1153, 1156 (9th Cir. 1991). 5 IT IS SO ORDERED. 6 || Dated: December 23, 2019 A 7 Mill. Dy a g Hori. Karen S. Crawford 9 United States Magistrate Judge
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