De Andre Lamont Locklin v. Tammy Campbel

• Court: District Court, C.D. California
• Decided: November 2, 2022
• Docket: 2:22-cv-06933
• Status: Unknown

Opinion

Case 2:22-cv-06933-SB-KES Document 7 Filed 11/02/22 Page 1 of 4 Page ID #:16

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 DEANDRE LAMONT LOCKLIN, Case No. 2:22-cv-06933-SB-KES

12 Petitioner, ORDER TO SHOW CAUSE WHY 13 v. PETITION SHOULD NOT BE

14 T. CAMPBEL, Warden, DISMISSED AS MIXED

15 Respondent.

17 I.

18 BACKGROUND

19 On September 19, 2022, Deandre Lamont Locklin (“Petitioner”)

20 constructively filed a Petition for Writ of Habeas Corpus by a Person in State 21 Custody pursuant to 28 U.S.C. § 2254. (Dkt. 1 [“Petition”].) Petitioner challenges 22 his conviction for the 2015 gang-related armed robbery of a marijuana dispensary 23 in Los Angeles. (Id. at 2.) The Petition raises four grounds for relief: 24 (1) Confrontation Clause error in admitting testimony from a DNA expert; 25 (2) Confrontation Clause error in admitting DNA evidence; (3) insufficient 26 evidence to support the gang enhancement; and (4) ineffective assistance of 27 counsel (“IAC”). (Id. at 5-6.) 28 Petitioner contends that he exhausted all four grounds on direct appeal. (Id.) 1 Case 2:22-cv-06933-SB-KES Document 7 Filed 11/02/22 Page 2 of 4 Page ID #:17

1 But, it appears that Petitioner’s direct appeal did not include an IAC claim. See 2 People v. Locklin, No. B295741, 2021 WL 1115852, 2021 Cal. App. Unpub. 3 LEXIS 1926 (Mar. 24, 2021). Indeed, IAC claims are rarely brought on direct 4 appeal because the evidence in a direct appeal is limited to the trial court record. 5 See United States v. Darrell, 659 F. App’x 407, 408 (9th Cir. 2016). Petitioner is 6 therefore ordered to show cause why his Petition should not be dismissed as a 7 “mixed.” 8 II. 9 LEGAL STANDARD 10 All claims in a federal habeas petition must be “exhausted” before a federal 11 court may grant the petition. 28 U.S.C. § 2254(b)(1); Rose v. Lundy, 455 U.S. 12 509, 522 (1982). To exhaust a claim, the petitioner must “fairly present” it to the 13 state courts, to give the State the opportunity to pass upon and correct alleged 14 violations of the petitioner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365 15 (1995). To be properly exhausted, the claim must be “fairly presented” to the 16 highest court in a state court system, even if that court’s review is discretionary. 17 O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999); James v. Giles, 221 F.3d 18 1074, 1077, n.3 (9th Cir. 2000). For a petitioner in California state custody, this 19 generally means that the petitioner must have presented his claims to the 20 California Supreme Court. Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999) 21 (emphasis added). 22 For a claim to have been “fairly presented” to the state courts, the claim 23 “must include a reference to a specific federal constitutional guarantee, as well as a 24 statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 25 U.S. 152, 162-63 (1996). The claim should alert the state court to the alleged 26 federal basis for the claim “by citing in conjunction with the claim the federal 27 source of law on which he relies or a case deciding such a claim on federal 28 grounds, or by simply labeling the claim ‘federal.’” Baldwin v. Reese, 541 U.S. 2 Case 2:22-cv-06933-SB-KES Document 7 Filed 11/02/22 Page 3 of 4 Page ID #:18

1 27, 32 (2004). “[O]rdinarily a state prisoner does not ‘fairly present’ a claim to a 2 state court if that court must read beyond a petition or a brief (or a similar 3 document) that does not alert it to the present of a federal claim in order to find 4 material, such as a lower court opinion in the case, that does so.” Id. 5 A petitioner has the burden of demonstrating that he has exhausted available 6 state remedies. See, e.g., Brown v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982). 7 Under the Anti-Terrorism and Effective Death Penalty Act of 1996 8 (“AEDPA”), all federal habeas petitions are subject to a one-year statute of 9 limitations, and claims not exhausted and presented to the federal court within the 10 one-year period are forfeited. 28 U.S.C. § 2244(d). Under Rhines v. Weber, 544 11 U.S. 269 (2005), a district court has discretion to stay a petition to allow a 12 petitioner to exhaust his claims in state court without running afoul of AEDPA’s 13 one-year statute of limitations period. Id. at 273-75. A district court may stay a 14 petition if: (1) the petitioner has good cause for his failure to exhaust his claims; 15 (2) the unexhausted claims are potentially meritorious; and (3) there is no 16 indication that the petitioner intentionally engaged in dilatory tactics. Id. at 278. 17 Alternatively, the Court may grant a stay under Kelly v. Small, 315 F.3d 18 1143 (9th Cir. 2003), which does not have the Rhines “good cause” requirement. 19 See King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). A Kelly stay and 20 abeyance requires compliance with the following three-step procedure: 21 (1) petitioner files an amended petition deleting his unexhausted claims; (2) the 22 district court “stays and holds in abeyance the amended, fully exhausted petition, 23 allowing petitioner the opportunity to proceed to state court to exhaust the deleted 24 claims”; and (3) petitioner must subsequently seek to amend the federal habeas 25 petition to reattach “the newly-exhausted claims to the original petition.” Id. at 26 1135. Under Kelly, however, a petitioner is only allowed to amend newly 27 exhausted claims back into his federal petition if those claims are timely under the 28 AEDPA or “relate back” to the exhausted claims in the pending petition. Id. at 3 Case 2:22-cv-06933-SB-KES Document Filed 11/02/22 Page4of4 Page ID #:19

1 | 1140-41; see also Mayle v. Felix, 545 U.S. 644, 662-64 (2005); Stein v. Director of 2 || Corrections, No. 05-1592, 2009 U.S. Dist. LEXIS 114016, 2009 WL 4755727 3 | (E.D. Cal. Dec. 8, 2009). 4 Hl. 5 DISCUSSION 6 Ground Four of the Petition (the [AC claim) appears unexhausted. While 7 | the Court does not have a copy Petitioner’s Petition for Review to the California 8 || Supreme Court, the Court of Appeal’s opinion does not discuss an IAC claim. See 9 | People v. Locklin, No. B295741, 2021 WL 1115852, 2021 Cal. App. Unpub. 10 | LEXIS 1926 (Mar. 24, 2021). Typically, a Petition for Review does not include 11 | issues that were not presented to the lower court. 12 IV. 13 CONCLUSION 14 IT IS HEREBY ORDERED that, on or before December 2, 2022, Petitioner 15 | is ordered to show cause why the Petition should not be dismissed as mixed. In 16 | response to this Order to Show Cause, Petitioner should do one of the following: 17 (1) Voluntarily dismiss Ground Four. If Petitioner does this, the Court will 18 | order Respondent to respond to Grounds One, Two, and Three. 19 (2) File a brief explaining when and how Petitioner believes he exhausted 20 | Ground Four. If Petitioner contends that he presented his IAC claim to the 21 | California Supreme Court in his Petition for Review, then he should attach a copy. 22 (3) Or, file a motion to stay this action so he can return to state court to 23 | exhaust Ground Four. As discussed above, a stay may be available under Rhines 24 | v. Weber if Petitioner can meet the requirements, or under Kelly v. Small. 25 26 | DATED: November 2, 2022 Toms 6. Scot? 17 KAREN E. SCOTT 99 UNITED STATES MAGISTRATE JUDGE