1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG
8 Petitioner, ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR 9 v. RECONSIDERATION; GRANTING EXTENSION OF TIME TO MAKE 10 ROB BONTA, ELECTION 11 Respondent. Re: Dkt. No. 22
12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254, challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. Now 15 pending before the Court is Petitioner’s motion seeking leave to file a motion for reconsideration 16 of the Court’s denial of his request for a Rhines stay. For the reasons set forth below, the Court 17 DENIES Plaintiff’s request for leave to file a motion for reconsideration and sua sponte GRANTS 18 Petitioner an extension of time to April 8, 2022, to make an election as to how to proceed. 19 DISCUSSION 20 I. Procedural Background 21 Petitioner filed this action on or about March 20, 2021. Dkt. No. 1 at 36. On March 31, 22 2021, the Court dismissed the initial petition with leave to amend, finding that the petition’s first 23 claim of ineffective assistance of counsel failed to clearly identify what trial counsel did or did not 24 do that constituted ineffective assistance of counsel. Dkt. No. 3. 25 Petitioner filed an amended petition which stated a Miranda claim and eight ineffective 26 assistance of counsel (“IAC”) claims. See generally Dkt. No. 10. The Court granted 27 Respondent’s motion to dismiss IAC subclaims Nos. 2 through 8 as unexhausted, and required 1 action with only the exhausted claims; or (2) dismiss this action and return to state court to exhaust 2 the unexhausted claims before filing a new federal petition presenting all of his claims; or (3) file a 3 motion for a stay of these proceedings while he exhausted the unexhausted claims in the state 4 courts. See generally Dkt. No. 15. 5 On December 13, 2021, the Court denied Petitioner’s request for a Rhines stay, finding that 6 he had not demonstrated the good cause necessary. The Court required Petitioner to elect whether 7 he wished to (1) dismiss the unexhausted claims and go forward in this action with only the 8 exhausted claims; or (2) dismiss this action and return to state court to exhaust the unexhausted 9 claims before filing a new federal petition presenting all his claims; or (3) seek a King/Kelly stay 10 by filing both a second amended petition that contained only exhausted claims and a motion for a 11 stay of these proceedings while he exhausted the unexhausted claims. Dkt. No. 17. 12 Petitioner filed a second amended petition which alleged that (1) he was denied his Sixth 13 Amendment right to effective assistance of counsel when trial counsel called Nicolas Pittet as a 14 defense witness without vetting Pittet beforehand; (2) he was denied his Fifth Amendment right 15 against self-incrimination when he was in interrogated in custody without being Mirandized; and 16 (3) cumulative error. See generally ECF No. 20. Petitioner also requested a King/Kelly stay. Dkt. 17 No. 19. On February 11, 2022, the Court denied the request for a King/Kelly stay because the 18 second amended petition’s claim of cumulative error was unexhausted. Dkt. No. 21. The denial 19 was without prejudice to filing a renewed motion for a King/Kelly stay if the renewed request were 20 accompanied by a third amended petition that contained only exhausted claims. 21 II. Request for Leave to File a Motion for Reconsideration 22 Petitioner has requested reconsideration of the Court’s denial of his request for a 23 King/Kelly stay, stating that he has exhausted his claim of cumulative error, as this claim was 24 presented in both his appellate opening brief and his petition to transfer. 25 The Court construes this motion as a request for leave to file a motion for reconsideration 26 because pursuant to Local Rule 7-9(b), before the entry of judgment, no party may notice a motion 27 for reconsideration without first obtaining leave of Court to file the motion. N.D. Cal. L.R. 7-9(a). 1 leave, a material difference in fact or law exists from that which was presented to the court before 2 entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of 3 reasonable diligence the party applying for reconsideration did not know such fact or law at the 4 time of the interlocutory order; or (2) the emergence of new material facts or a change of law 5 occurring after the time of such order; or (3) a manifest failure by the court to consider material 6 facts which were presented to the court before such interlocutory order. See N.D. Civil L.R. 7- 7 9(b). 8 Petitioner, in essence, argues that there was a manifest failure by the Court to consider his 9 appellate opening brief and his petition to transfer, both of which raise the claim of cumulative 10 error. Petitioner is incorrect. The petition for transfer does not raise a claim of cumulative error. 11 In recounting the procedural history of the case, the petition for transfer states that Petitioner 12 appealed the conviction on three grounds, including cumulative error. Dkt. No. 12-1 at 199; Dkt. 13 No. 22 at 4. However, in listing the issues presented for transfer, the petition for transfer specified 14 that there were only two issues presented: (1) whether trial counsel was ineffective when trial 15 counsel called Nicolas Pittet as a defense witness without vetting Pittet beforehand; and 16 (2) whether Petitioner was in custody for the purposes of Miranda when he was held by police in 17 the non-public area of a commercial store and not free to terminate the investigation. Dkt. No. 12- 18 1 at 198, 207-211 (“Certification and transfer are necessary to settle two important questions of 19 law.”) (emphasis added). For the purposes of federal habeas review, in a misdemeanor case, a 20 claim has been exhausted when it is presented to the California Court of Appeal in a request to 21 transfer an appeal from the superior court appellate division. See, e.g., McMonagle v. Meyer, 802 22 F.3d 1093, 1099 (9th Cir. 2015) (en banc) (petitioner seeking federal habeas review of 23 misdemeanor conviction is not required to present his claims to California Supreme Court in order 24 to exhaust them where California Court of Appeal declines to hear claims on merits). Here, there 25 was no claim of cumulative error presented to the state appellate court in the petition to transfer. 26 A claim of cumulative error was raised on direct appeal and the petition for transfer references the 27 cumulative error in recounting the procedural history of the case, but the petition for transfer itself 1 cumulative error. Because there was no manifest error by the Court, the Court DENIES 2 || Petitioner’s request for leave to file a motion for reconsideration. Dkt. No. 22. 3 CONCLUSION 4 For the reasons set forth above, the Court DENIES Petitioner’s request leave to file a 5 || motion for reconsideration. Dkt. No. 22. The Court will sua sponte grant Petitioner an extension 6 of time to April 8, 2022, to make an election. The election options set forth in Dkt. No. 21 7 incorrectly relied on the amended petition. Because the second amended petition is the operative 8 || petition, Petitioner has the following options. By April 8, 2022, Petitioner shall inform the Court 9 whether he will proceed by (1) dismissing the unexhausted cumulative error claim and going 10 forward in this action with only the exhausted claims (the IAC claim and the Miranda claim), or 11 (2) dismissing this action and returning to state court to exhaust the cumulative error claim before «= 12 || filing a new federal petition presenting all of his claims, or (3) seeking a King/Kelly stay by filin g y by g
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL JOHN DELMONICO, Case No. 21-cv-02009-HSG
8 Petitioner, ORDER DENYING REQUEST FOR LEAVE TO FILE MOTION FOR 9 v. RECONSIDERATION; GRANTING EXTENSION OF TIME TO MAKE 10 ROB BONTA, ELECTION 11 Respondent. Re: Dkt. No. 22
12 13 Petitioner has filed a pro se action seeking a writ of habeas corpus pursuant to 28 U.S.C. 14 § 2254, challenging a 2018 misdemeanor conviction from Palo Alto Superior Court. Now 15 pending before the Court is Petitioner’s motion seeking leave to file a motion for reconsideration 16 of the Court’s denial of his request for a Rhines stay. For the reasons set forth below, the Court 17 DENIES Plaintiff’s request for leave to file a motion for reconsideration and sua sponte GRANTS 18 Petitioner an extension of time to April 8, 2022, to make an election as to how to proceed. 19 DISCUSSION 20 I. Procedural Background 21 Petitioner filed this action on or about March 20, 2021. Dkt. No. 1 at 36. On March 31, 22 2021, the Court dismissed the initial petition with leave to amend, finding that the petition’s first 23 claim of ineffective assistance of counsel failed to clearly identify what trial counsel did or did not 24 do that constituted ineffective assistance of counsel. Dkt. No. 3. 25 Petitioner filed an amended petition which stated a Miranda claim and eight ineffective 26 assistance of counsel (“IAC”) claims. See generally Dkt. No. 10. The Court granted 27 Respondent’s motion to dismiss IAC subclaims Nos. 2 through 8 as unexhausted, and required 1 action with only the exhausted claims; or (2) dismiss this action and return to state court to exhaust 2 the unexhausted claims before filing a new federal petition presenting all of his claims; or (3) file a 3 motion for a stay of these proceedings while he exhausted the unexhausted claims in the state 4 courts. See generally Dkt. No. 15. 5 On December 13, 2021, the Court denied Petitioner’s request for a Rhines stay, finding that 6 he had not demonstrated the good cause necessary. The Court required Petitioner to elect whether 7 he wished to (1) dismiss the unexhausted claims and go forward in this action with only the 8 exhausted claims; or (2) dismiss this action and return to state court to exhaust the unexhausted 9 claims before filing a new federal petition presenting all his claims; or (3) seek a King/Kelly stay 10 by filing both a second amended petition that contained only exhausted claims and a motion for a 11 stay of these proceedings while he exhausted the unexhausted claims. Dkt. No. 17. 12 Petitioner filed a second amended petition which alleged that (1) he was denied his Sixth 13 Amendment right to effective assistance of counsel when trial counsel called Nicolas Pittet as a 14 defense witness without vetting Pittet beforehand; (2) he was denied his Fifth Amendment right 15 against self-incrimination when he was in interrogated in custody without being Mirandized; and 16 (3) cumulative error. See generally ECF No. 20. Petitioner also requested a King/Kelly stay. Dkt. 17 No. 19. On February 11, 2022, the Court denied the request for a King/Kelly stay because the 18 second amended petition’s claim of cumulative error was unexhausted. Dkt. No. 21. The denial 19 was without prejudice to filing a renewed motion for a King/Kelly stay if the renewed request were 20 accompanied by a third amended petition that contained only exhausted claims. 21 II. Request for Leave to File a Motion for Reconsideration 22 Petitioner has requested reconsideration of the Court’s denial of his request for a 23 King/Kelly stay, stating that he has exhausted his claim of cumulative error, as this claim was 24 presented in both his appellate opening brief and his petition to transfer. 25 The Court construes this motion as a request for leave to file a motion for reconsideration 26 because pursuant to Local Rule 7-9(b), before the entry of judgment, no party may notice a motion 27 for reconsideration without first obtaining leave of Court to file the motion. N.D. Cal. L.R. 7-9(a). 1 leave, a material difference in fact or law exists from that which was presented to the court before 2 entry of the interlocutory order for which the reconsideration is sought, and that in the exercise of 3 reasonable diligence the party applying for reconsideration did not know such fact or law at the 4 time of the interlocutory order; or (2) the emergence of new material facts or a change of law 5 occurring after the time of such order; or (3) a manifest failure by the court to consider material 6 facts which were presented to the court before such interlocutory order. See N.D. Civil L.R. 7- 7 9(b). 8 Petitioner, in essence, argues that there was a manifest failure by the Court to consider his 9 appellate opening brief and his petition to transfer, both of which raise the claim of cumulative 10 error. Petitioner is incorrect. The petition for transfer does not raise a claim of cumulative error. 11 In recounting the procedural history of the case, the petition for transfer states that Petitioner 12 appealed the conviction on three grounds, including cumulative error. Dkt. No. 12-1 at 199; Dkt. 13 No. 22 at 4. However, in listing the issues presented for transfer, the petition for transfer specified 14 that there were only two issues presented: (1) whether trial counsel was ineffective when trial 15 counsel called Nicolas Pittet as a defense witness without vetting Pittet beforehand; and 16 (2) whether Petitioner was in custody for the purposes of Miranda when he was held by police in 17 the non-public area of a commercial store and not free to terminate the investigation. Dkt. No. 12- 18 1 at 198, 207-211 (“Certification and transfer are necessary to settle two important questions of 19 law.”) (emphasis added). For the purposes of federal habeas review, in a misdemeanor case, a 20 claim has been exhausted when it is presented to the California Court of Appeal in a request to 21 transfer an appeal from the superior court appellate division. See, e.g., McMonagle v. Meyer, 802 22 F.3d 1093, 1099 (9th Cir. 2015) (en banc) (petitioner seeking federal habeas review of 23 misdemeanor conviction is not required to present his claims to California Supreme Court in order 24 to exhaust them where California Court of Appeal declines to hear claims on merits). Here, there 25 was no claim of cumulative error presented to the state appellate court in the petition to transfer. 26 A claim of cumulative error was raised on direct appeal and the petition for transfer references the 27 cumulative error in recounting the procedural history of the case, but the petition for transfer itself 1 cumulative error. Because there was no manifest error by the Court, the Court DENIES 2 || Petitioner’s request for leave to file a motion for reconsideration. Dkt. No. 22. 3 CONCLUSION 4 For the reasons set forth above, the Court DENIES Petitioner’s request leave to file a 5 || motion for reconsideration. Dkt. No. 22. The Court will sua sponte grant Petitioner an extension 6 of time to April 8, 2022, to make an election. The election options set forth in Dkt. No. 21 7 incorrectly relied on the amended petition. Because the second amended petition is the operative 8 || petition, Petitioner has the following options. By April 8, 2022, Petitioner shall inform the Court 9 whether he will proceed by (1) dismissing the unexhausted cumulative error claim and going 10 forward in this action with only the exhausted claims (the IAC claim and the Miranda claim), or 11 (2) dismissing this action and returning to state court to exhaust the cumulative error claim before «= 12 || filing a new federal petition presenting all of his claims, or (3) seeking a King/Kelly stay by filin g y by g
13 both a third amended petition that contains only exhausted claims and a motion for a stay of these
v 14 || proceedings while he exhausts any unexhausted claims in the state courts. Dkt. No. 22. © IT IS SO ORDERED. 16 |) Dated:3/7/2022
HAYWOOD S. GILLIAM, JR. 18 United States District Judge 19 20 21 22 23 24 yp 25 ' Petitioner is reminded that while he may later amend his second amended petition to reattach any newly exhausted claims, the court may only allow Petitioner to reattach the newly-exhausted 26 claims if he can demonstrate that the amendment satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common core of operative facts,” and Duncan v. Walker, 533 U.S. 167 7 (2001), by complying with AEDPA’s statute of limitations. King v. Ryan, 564 F.3d 1133, 1134 (9th Cir. 2000) (citing Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on other 28 grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007)). The Court will not determine at this point if a future petition would comply with Mayle and Felix.