Geeter v. Pollard

• Court: District Court, N.D. California
• Decided: March 7, 2024
• Docket: 3:20-cv-02188
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 JAMAR RASHAD GEETER, 10 Case No. 20-cv-02188-RS (PR) Petitioner, 11 v. ORDER GRANTING RESPONDENT’S 12 MOTION TO DISMISS CERTAIN MARCUS POLLARD, CLAIMS 13 Respondent. 14

15 I. INTRODUCTION 16 Petitioner Jamar Geeter seeks federal habeas corpus relief from his state convictions under 17 28 U.S.C. § 2254. Respondent moves to dismiss claims 4-7 of his First Amended Petition (FAP) 18 on the grounds that claims 4 and 5 are not cognizable, claims 4-6 are procedurally defaulted, or, 19 alternatively, claims 4-7 are untimely. For the reasons stated herein, Respondent’s motion is 20 granted and claims 4-7 of the FAP are dismissed. Respondent shall file an answer addressing the 21 merits of the remaining claims by July 3, 2024. Petitioner shall file his traverse 45 days after the 22 answer is filed. The petition will be deemed submitted on the day the traverse is due. 23 II. BACKGROUND 24 In 2016, Petitioner was convicted of commercial sex trafficking, forcible rape and oral 25 copulation, and pimping and pandering of two minors. He received a prison sentence of fifteen 26 years to life, plus eighty-two years and is currently incarcerated. Petitioner pursued a timely appeal 27 in the Court of Appeal for the First Appellate District, which affirmed the judgment against 1 Separately, Petitioner appealed the noneconomic restitution awarded to his victims Z.H. and B.C., 2 which was affirmed in part and reversed in part by the Court of Appeal on May 31, 2019. 3 Petitioner subsequently filed a petition for review in the California Supreme Court regarding the 4 restitution judgment, which was denied on September 11, 2019. The California Supreme Court 5 decision became final on December 10, 2019. 6 On March 31, 2020, Petitioner filed a writ of habeas corpus in this court with four claims. 7 Then, on April 10, 2020, Petitioner constructively filed a pro se petition for writ of habeas corpus 8 in the California Court of Appeal, which was in fact filed on June 8, 2020. Petitioner’s request for 9 a stay of proceedings pending the Court of Appeal’s decision was granted under Rhines v. Weber, 10 544 U.S. 269 (2005). The California Court of Appeal denied Petitioner’s habeas petition on June 11 18, 2020. Almost a year later, on June 2, 2021, Petitioner, now represented by counsel, filed a 12 petition for writ of habeas corpus in the California Supreme Court, which was denied on 13 September 22, 2021. Again, almost a year later on September 2, 2022, Petitioner filed a motion to 14 dissolve the Rhines stay to reopen the instant case and filed the FAP with eight claims. 15 As grounds for federal habeas relief, Petitioner claims that: (1) his right to testify in his 16 own defense and right to a fair trial were violated by the inclusion of CALCRIM 361 because the 17 instruction improperly singled out his testimony; (2) his due process right to a fair trial was 18 violated by the admission of highly prejudicial other crimes evidence; (3) his due process rights 19 were violated by the testimony of a detective who stated that he believed the victim; (4) his due 20 process rights were violated by the denial of his request to dismiss the case against him pursuant to 21 California Penal Code § 995; (5) his due process rights were violated by the denial of his motion 22 to suppress evidence under California Penal Code § 1538.5; (6) his due process rights were 23 violated by the denial of his motion to sever counts; (7) his appellate counsel rendered ineffective 24 assistance in violation of his Sixth Amendment and due process rights; and (8) the cumulative 25 effect of multiple trial errors violated his due process rights. Respondent moves to dismiss claims 26 4, 5, 6, and 7 of Petitioner’s claim, arguing that claims 4 and 5 are not cognizable for federal 27 habeas review, claims 4-6 are procedurally defaulted, or, alternatively, claims 4-7 are untimely. 1 III. DISCUSSION 2 A. Claims 4, 5: Not Cognizable 3 Under California Penal Code § 995, a criminal defendant may move the court to set aside 4 the information or indictment on which the defendant is arraigned in certain cases. Petitioner 5 insists that denial of his section 995 motion was a denial of his due process rights. This claim is 6 not cognizable. “[T]he Ninth Circuit and district courts within it have concluded [that] claims 7 challenging a state trial court’s denial of a section 995 motion are not cognizable in a federal 8 habeas corpus proceeding, even if the petitioner also alleges a violation of a federally protected 9 right.” Shorts v. Clark, No. 2:19-cv-04899-GW, 2019 WL 7945705 at *4 n.5 (C.D. Cal. Oct. 4, 10 2019); see also Lopes v. Campbell, 408 Fed. App’x 13, 15 (9th Cir. 2010) (A section 995 claim is 11 a “state law claim[]…not cognizable on federal habeas review.”); Estelle v. McGuire, 502 U.S. 62, 12 67 (1991). 13 Petitioner’s fifth claim is also not cognizable for federal habeas relief. He suggests that his 14 Fourth Amendment rights were violated when the trial court denied his motion to suppress under 15 California Penal Code § 1538.5. A section 1538.5 motion is a pretrial motion that allows 16 defendants to move for the return of property or to suppress evidence obtained from an illegal 17 search or seizure. In Stone v. Powell, the Supreme Court held that denial of a fairly and fully 18 litigated Fourth Amendment claim is not grounds for federal habeas relief. 428 U.S. 465, 494 19 (1976). Petitioner insists that Stone is inapplicable to his case because the state court’s denial of 20 his section 1538.5 motion constituted a deprivation of a full and fair litigation of his Fourth 21 Amendment claim. However, the Ninth Circuit has held that the relevant inquiry under Stone is 22 “whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or 23 even whether the claim was correctly decided.” Ortiz-Sandoval v. Gomez, 81 F.3d. 891, 899 24 (1996). Here, his claim was fully litigated. Therefore, the fifth claim Petitioner brings is also not 25 cognizable for federal habeas review. Accordingly, Respondent’s motion to dismiss claims 4 and 5 26 as not cognizable is granted and claims 4 and 5 are dismissed. 27 1 B. Claims 4-6: Procedural Default 2 Respondent argues that claims 4 and 5, in addition to claim 6, are procedurally barred from 3 federal habeas review. The procedural default rule is an application of the more general “adequate 4 and independent state grounds” doctrine and applies only when a petitioner “violates a state 5 procedural rule.” Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). Federal habeas review of “a 6 question of federal law decided by a state court [is unavailable] if the decision of that court rests 7 on a state law ground that is independent of a federal question and adequate to support the 8 judgment,” unless the petitioner can establish cause for the default and actual prejudice resulting 9 from the alleged violation of federal law, or a “fundamental miscarriage of justice.” Coleman v. 10 Thompson, 501 U.S. 722, 729, 757 (1991). The state retains the initial burden of pleading the 11 existence of an adequate and independent state procedural ground as an affirmative defense. 12 Bennet v. Mueller, 322 F.3d 573, 585-86 (9th Cir. 2003). Once the state has done so, the burden to 13 specify the deficiencies of that state procedure shifts to the petitioner. Id. at 586. 14 In his petition for writ of habeas corpus to the California Supreme Court, Petitioner 15 presented claims 4, 5, and 6. The California Supreme Court denied these claims, invoking In re 16 Dixon, 41 Cal.2d 756 (1953). In Dixon, the California Supreme Court held that state habeas corpus 17 relief is unavailable where “claimed errors could have been, but were not, raised upon a timely 18 appeal,” absent special circumstances constituting valid excuse. Id. at 759. Subsequently, the 19 Supreme Court held that the Dixon bar constitutes an adequate procedural default for the purposes 20 of federal habeas review. Johnson v. Lee, 578 U.S. 605 (2016). 21 Petitioner concedes that these claims were not raised on appeal but argues that his appellate 22 counsel was ineffective for not raising them on direct review. According to Petitioner, this 23 constitutes cause and prejudice to overcome the Dixon bar. Although a claim for ineffective 24 assistance of counsel may be regarded as sufficient cause to overcome the procedural bar, it must 25 rise to a level of constitutional violation as defined in Strickland v. Washington, 466 U.S. 668 26 (1984). In Strickland, the Supreme Court held that a defendant bringing a claim for ineffective 27 assistance of counsel must first show that his representation “fell below an objective standard of 1 reasonableness” and it is reasonably probable that, but for counsel’s unprofessional errors, the 2 defendant would have prevailed on appeal. Strickland, 466 U.S at 688, 694. Petitioner’s claim for 3 ineffective assistance of counsel is embodied in claim 7 of his FAP, in which he avers that his 4 appellate counsel fell below the Strickland standard by failing to raise the trial court’s denial of the 5 section 995 motion, section 1538.5. motion, and motion to sever counts on direct appeal. 6 Petitioner further insists that he was prejudiced by his appellate counsel’s omissions, as it is 7 reasonably probable that but for those “errors,” the outcome of his appeal would have been 8 different. However, he has failed to aver sufficiently that his appellate counsel’s representation fell 9 below an objective standard of reasonableness and was “constitutionally deficient.” Walker v. 10 Martel, 709 F.3d 925, 937 (9th Cir. 2013). Given the extensive litigation of these at the trial level, 11 it is unlikely that but for appellate counsel’s failure to raise the section 995 motion, suppression 12 motion, or severance motion, he would have prevailed on appeal. Petitioner’s appellate counsel 13 likely omitted weaker arguments strategically, as skilled appellate counsel are wont to do. See 14 Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) (“In many instances, appellate counsel will 15 fail to raise an issue because she foresees little or no likelihood of success on that issue; indeed, 16 the weeding out of weaker issues is widely recognized as one of the hallmarks of effective 17 appellate advocacy”). Petitioner’s ineffective assistance of counsel argument is insufficient to 18 overcome the Dixon bar. He has failed to show cause and prejudice, and he offers only conclusory 19 allegations that dismissal of his defaulted claims will constitute a fundamental miscarriage of 20 justice. Accordingly, Respondent’s motion to dismiss claims 4-6 as procedurally defaulted is 21 granted. Claims 4-6 are dismissed on this additional ground. 22 C. Claims 4-7: Untimely 23 Respondent suggests that claims 4-7 of Petitioner’s FAP are untimely. The Antiterrorism 24 and Effective Death Penalty Act of 1996 (AEDPA) provides a one-year statute of limitations for 25 filing federal habeas petitions following state judgments, but excludes the period of time during 26 which an application for state collateral review is “pending.” 28 U.S.C. § 2244(d)(1); 2244(d)(2); 27 see also Carey v. Saffold, 536 U.S. 214, 216-217 (2002). In this case, Petitioner’s judgment 1 became final on December 10, 2019, ninety days after the California Supreme Court denied 2 review and following the period in which Petitioner could have filed a petition for a writ of 3 certiorari from the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 4 1999). This means that he had until December 11, 2020 to file his federal petition. His original 5 federal petition, which did not include claims 4-7, was filed on March 31, 2020 and was 6 accordingly timely. His FAP was not filed until September 2, 2022, which was after the December 7 11, 2020 deadline. 8 Petitioner does not dispute that the limitations period commenced on December 11, 2019, 9 nor the argument that claims 4-7 were filed beyond that one-year period. Instead, he argues that he 10 filed a “mixed” petition–containing both exhausted and unexhausted claims–and was granted a 11 Kelly stay.1 Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). In fact, Petitioner was granted a Rhines 12 stay. Dkt. 18; see Rhines, 544 U.S. 269. While a Kelly stay requires the petitioner to remove his 13 unexhausted claims from the petition prior to staying and holding in abeyance the exhausted 14 claims, a Rhines stay is distinguishable in that, in limited circumstances and upon a showing of 15 good cause, it permits the stay of a mixed habeas petition and holds in abeyance all claims—both 16 exhausted and unexhausted—so that a petitioner may return to state court and exhaust all claims 17 there. King v. Ryan, 564 F.3d 1133, 1135-36 (9th Cir. 2009). Regardless, Petitioner has failed to 18 explain why claims 4-7 are not untimely. The original federal petition did not include claims 4-7. 19 The Rhines stay, which was granted on June 10, 2020, pertained to that original petition. The FAP 20 was filed on September 2, 2022, the same day Petitioner filed the motion to dissolve the stay and 21 reopen proceedings. Claims 4-7 were not covered by the Rhines stay. 22 Even if his amended claims are untimely, Petitioner insists that they “relate back” to his 23 24 1 A Kelly stay entails the following: “(1) a petitioner amends his petition to delete any unexhausted 25 claims; (2) the court stays and holds in abeyance the amended, fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted claims; and (3) the 26 petitioner later amends his petition and re-attaches the newly-exhausted claims to the original 27 petition.” King v. Ryan, 564 F.3d 1133, 1135 (9th Cir. 2009). 1 original claims. Federal Rule of Civil Procedure 15 states that an amended pleading relates back to 2 an original if “the amendment asserts a claim or defense that arose out of the conduct, transaction, 3 or occurrence set out…in the original pleading.” Fed. R. Civ. Pro. 15(c)(1)(B).2 Applying this rule 4 and provisions from the Habeas Rules that require a petitioner to specify “all grounds for relief” to 5 amendments in the habeas corpus context, the Supreme Court has ruled that in some 6 circumstances, an amended habeas petition may “relate back” to an original petition, unless the 7 new petition “asserts a new ground for relief supported by facts that differ in both time and type 8 from those the original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). Petitioner 9 contends that his amended and original claims are all “tied to a common core of operative facts” 10 and aver due process violations, so fit the contours of the test articulated in Mayle. See id. at 647. 11 In Mayle, the petitioner’s amended pleading included both the original Sixth Amendment 12 Confrontation Clause claim and a new Fifth Amendment coerced confession claim. The Supreme 13 Court held that the latter claim failed to “relate back” to the original petition because the 14 petitioner’s pretrial statements arose in an occurrence that was “separate in ‘both time and type’” 15 from the events on which the original claims depended. Mayle, 545 U.S. at 657. The Ninth Circuit 16 has clarified that the relation back inquiry entails two steps: first, analyzing the claims in the 17 amended petition and the “core facts [that] underlie those claims;” and second, for each amended 18 claim, reviewing whether the original petition set out a “corresponding factual episode” or 19 “whether the…facts differ in both time and type from those the original pleading set forth.” Ross 20 v. Williams, 950 F.3d 1160, 1167 (9th Cir. 2020) (internal quotations omitted). “Sufficient 21 correspondence exists if the two claims arise out of the same episode-in-suit.” Id. at 1168. 22 The “core facts” underlying the amended claims are as follows: in claim 4, Petitioner 23

24 2 The Supreme Court has held that the Federal Rules of Civil Procedure apply to habeas 25 proceedings when consistent with the Rules Governing Section 2254 Cases (the “Habeas Rules”). Mayle v. Felix, 545 U.S. 644, 650 (2005); see also Ross v. Williams, 950 F.3d 1160, 1166 (9th Cir. 26 2020) (“Under provisions of both the Federal Rules of Civil Procedure and the [Habeas Rules], the Federal Rules of Civil Procedure apply to habeas proceedings to the extent they are consistent 27 with the Habeas Rules, federal statutory provisions, and habeas practice.”) 1 asserts that his motion to suppress was wrongfully denied; in claim 5, he argues that his section 2 995 pretrial motion was denied in violation of his due process rights; claim 6 suggests that denial 3 of his motion to sever counts was unduly prejudicial; and claim 7 presents that his appellate 4 counsel’s assistance was ineffective. For each of these claims, the original petition did not set out 5 or attempt to set out a “corresponding factual” event that could serve the basis to relate Petitioner’s 6 amended claims to his original petition. Rather, they reflect facts untethered to the events laid out 7 in the original petition, such that they differ in both time and type and did not arise out of the same 8 episode-in-suit. Accordingly, the amended claims do not relate back to the original, timely 9 petition. 10 Petitioner finally argues that his amended claims should not be dismissed for untimeliness 11 or procedural default because they establish actual innocence or a fundamental miscarriage of 12 justice. The “fundamental miscarriage of justice” exception provides that “actual innocence serves 13 as a gateway through which a petitioner may pass whether the impediment is…expiration of the 14 AEDPA statute of limitations.” McQuiggen v. Perkins, 569 U.S. 383, 383-84 (2013). However, 15 the Supreme Court cautioned that this exception is rarely applicable, only in “cases in which new 16 evidence shows it is more likely than not that no reasonable juror would have convicted the 17 petitioner.” Id. at 394-95 (cleaned up). Here, Petitioner fails to present any new evidence to 18 support his actual innocence argument, and his vague references to the cumulative errors at trial 19 are insufficient for a showing of actual innocence such that he may overtime AEDPA’s statute of 20 limitations bar. Accordingly, Respondent’s motion to dismiss claims 4-7 on the basis of 21 untimeliness is granted and claims 4-7 are dismissed on this additional ground. 22 IV. CONCLUSION 23 Respondent’s motion to dismiss claims 4-7 is granted. Claims 4-7 are hereby dismissed. 24 Respondent shall file an answer addressing the merits of the remaining claims by July 3, 2024. 25 Petitioner shall file his traverse within 45 days after the answer is filed. The petition will be 26 deemed submitted on the day the traverse is due. 27 1 IT IS SO ORDERED. 2 3 || Dated: March 7, 2024 MAA 4 RICHARD SEEBORG 5 Chief United States District Judge 6 7 8 9 10 11 a 12

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Z 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING MOTION TO DISMISS CASE No. 20-cv-02188-RS