(HC) Griffin v. Martinez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT LEE GRIFFIN, Case No. 1:17-cv-01137-DAD-JDP 12 Petitioner, ORDER DISCHARGING APRIL 17, 2020 ORDER TO SHOW CAUSE 13 v. ECF No. 31 14 JOEL D. MARTINEZ, FINDINGS AND RECOMMENDATIONS TO 15 Respondent. DISMISS PETITIONER’S UNEXHAUSTED CLAIMS 16 OBJECTIONS DUE IN THIRTY DAYS 17 ECF No. 36 18 ORDER DENYING MISCELLANEOUS 19 MOTIONS FOR RELIEF AND DIRECTING THE CLERK’S OFFICE TO SEND 20 PETITIONER A COPY OF HIS AMENDED PETITION 21 ECF No. 36 22

23 24 Petitioner Robert Lee Griffin, a state prisoner without counsel, seeks a writ of habeas 25 corpus under 28 U.S.C. § 2254. ECF No. 30. Before us now are petitioner’s amended petition, 26 ECF No. 30, and miscellaneous motions for relief, ECF No. 36. 27 28 1 I. Background 2 In his original petition, petitioner claimed that the trial court violated his constitutional 3 rights when it: (1) admitted evidence of petitioner’s prior misdemeanor conviction and images 4 found on his computer; (2) failed to give the jury a limiting instruction related to the “fresh 5 complaint” doctrine; (3) gave an erroneous instruction on child sexual abuse accommodation 6 syndrome; and (4) erroneously excluded evidence related to a victim’s prior, unrelated instances 7 of abuse. ECF No. 1 at 3. On June 25, 2018, we granted petitioner a stay of his petition under the 8 Kelly procedure so that he could exhaust his state-level remedies and then return to federal court 9 to file a fully exhausted amended petition. See Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 10 2003); ECF No. 24. Petitioner has done so. ECF No. 30. In the amended petition, he 11 additionally claims that his trial counsel was ineffective for failure to: (1) investigate the state’s 12 witnesses for impeachment evidence; (2) investigate the state’s witnesses’ prior bad acts; and 13 (3) obtain the arrest records of the state’s witnesses. ECF No. 30 at 41-48. 14 On April 17, 2020, we issued an order to show cause why the amended petition should not 15 be dismissed as untimely. ECF No. 31. Petitioner responded to our order to show cause. ECF 16 No. 36. Accordingly, we will discharge our order to show cause and screen the amended petition. 17 II. Discussion 18 a. Amended Petition 19 Although we granted petitioner leave to exhaust his additional claims, we warned 20 petitioner that under Kelly any newly exhausted claims in his amended petition must be timely. 21 See King v. Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009); ECF No. 17 at 3-4. To be timely, his 22 new claims must either (1) meet AEDPA’s statute of limitations requirements, see 28 U.S.C. 23 § 2244(d), or (2) “relate back” to claims contained in the original petition that were exhausted at 24 the time of filing. See King, 564 F.3d at 1143; Mayle v. Felix, 545 U.S. 644, 664 (2005). 25 Petitioner has failed to demonstrate that his amended petition meets AEDPA’s statute of 26 limitations. See ECF No. 31 at 3-4. Petitioner states that he was unable to exhaust his ineffective 27 assistance of counsel claims in a timely manner because the documents necessary to support his 28 claims were not provided to him by his trial counsel until sometime after his trial. ECF No. 36 1 at 1. However, all of petitioner’s ineffective assistance of counsel claims dispute actions taken by 2 his counsel during his trial—actions that would have been apparent to petitioner during the trial. 3 See ECF No. 31 at 5. Petitioner has failed to show how the delay in receipt of certain documents 4 prevented him from timely exhausting his claims. 5 Moreover, petitioner has failed to demonstrate that his new claims of ineffective 6 assistance of counsel relate back to his original claims of trial court error. Under Kelly, a claim 7 that simply arises from “the same trial, conviction, or sentence” does not necessarily relate back 8 to the initial claims. See Mayle, 545 at U.S. 659. To relate back, the new claim must share a 9 “common core of operative facts” with the claims in the pending petition. Id. “An amended 10 habeas petition . . . does not relate back . . . when it asserts a new ground for relief supported by 11 facts that differ in both time and type from those the original pleading set forth.” Id. at 650. 12 Here, petitioner has not shown that the actions taken by the trial court share a common core of 13 operative facts with the actions of his trial counsel. See Schneider v. McDaniel, 674 F.3d 1144, 14 1151 (9th Cir. 2012) (finding that petitioner’s claims did not relate back where “original theory 15 was based on trial counsel’s alleged failures . . . [and] his amended theory [was] based on the trial 16 court’s alleged errors” because the “core facts underlying the second theory are different in type 17 from the core facts underlying the first theory”). Therefore, we recommend that petitioner’s 18 ineffective assistance of counsel claims be dismissed as unexhausted, allowing him to proceed 19 with his exhausted claims only.1 20 b. Leave to Seek Relief before the Ninth Circuit 21 Petitioner requests time to seek leave from the Ninth Circuit Court of Appeals to state his 22 new claims of ineffective assistance of counsel in a second or successive petition. ECF No. 36 23 at 2. Petitioner’s request for additional time to file such a motion is inapposite. Petitioner need 24 not seek leave from this court to file such a motion in the Ninth Circuit.2 To the extent petitioner

25 1 We also note that petitioner requested to proceed with his exhausted claims if his claims of ineffective assistance of counsel claims are deemed unexhausted by this court. ECF No. 36 at 2. 26 2 We note that petitioner may have difficulty obtaining leave from the Ninth Circuit to file a 27 second or successive petition. “A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.” 28 28 U.S.C. § 2244(b)(1). Because petitioner has already presented his ineffective assistance of 1 seeks some form of tolling in this case while he seeks relief from the Ninth Circuit, AEDPA 2 neither contemplates any such tolling, nor would such tolling assist petitioner. Accordingly, we 3 deny petitioner’s request. 4 c. Return of Amended Petition 5 Petitioner seeks the return of his amended petition filed with this court. ECF No. 36 at 2- 6 3. Petitioner states that he was unable to make a copy of his documents before filing them due to 7 his prison’s COVID-19 restrictions. Id. In light of these extenuating circumstances, we will 8 direct the clerk’s office to make a copy of his amended petition and all related exhibits, ECF No. 9 30, and mail that copy to petitioner. 10 d. Evidentiary Hearing 11 Petitioner seeks an evidentiary hearing. ECF No. 36 at 3. A habeas petitioner seeking an 12 evidentiary hearing must show that he “was not at fault in failing to develop [the] evidence in 13 state court, or (if he was at fault) [that he meets] the conditions prescribed by § 2254(e)(2).” 14 Holland v. Jackson, 542 U.S. 649, 652-53 (2004). Under Section 2254(e)(2), the court shall not 15 hold an evidentiary hearing unless the petitioner shows that “(A) the claim relies on (i) a new rule 16 of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that 17 was previously unavailable; or (ii) a factual predicate that could not have been previously 18 discovered through the exercise of due diligence; and (B) the facts underlying the claim would be 19 sufficient to establish by clear and convincing evidence that but for constitutional error, no 20 reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 21 U.S.C. § 2254(e)(2)(A-B). Petitioner’s stated reason for seeking an evidentiary hearing—to 22

23 counsel claims here, they will be subject to dismissal in a second or successive petition. If petitioner wishes to state a new claim in a second or successive petition, he must show that the 24 “claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” or that “the factual predicate for the claim 25 could not have been discovered previously through the exercise of due diligence” and that “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be 26 sufficient to establish by clear and convincing evidence that, but for constitutional error, no 27 reasonable factfinder would have found the applicant guilty of the underlying offense.” Id. at § 2244(b)(2). 28 1 determine the veracity of the facts he set forth in his response to our order to show cause—does 2 not meet the standard of § 2254(e)(2). Therefore, we will deny his request. 3 III. Certificate of Appealability 4 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 5 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 6 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing § 2254 Cases requires a 7 district court to issue or deny a certificate of appealability when entering a final order adverse to a 8 petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th 9 Cir. 1997). A certificate of appealability will not issue unless a petitioner makes “a substantial 10 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires 11 the petitioner to show that “jurists of reason could disagree with the district court’s resolution of 12 his constitutional claims or that jurists could conclude the issues presented are adequate to 13 deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; accord Slack v. 14 McDaniel, 529 U.S. 473, 484 (2000). Here, petitioner has not made a substantial showing of the 15 denial of a constitutional right. Thus, we recommend that the court not issue a certificate of 16 appealability. 17 IV. Findings and Recommendations 18 We recommend that the court dismiss petitioner’s claims of ineffective assistance of 19 counsel as unexhausted, ECF No. 30, and decline to issue a certificate of appealability. These 20 findings and recommendations are submitted to the U.S. District Court judge presiding over this 21 case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United 22 States District Court, Eastern District of California. Within thirty days of the service of the 23 findings and recommendations, petitioner may file written objections to the findings and 24 recommendations with the court and serve a copy on all parties. That document must be 25 26 27 28 wOow 4:48 VELOUR VET MMU OP POO VOI EN TOYS VM VI

1 | captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 2 | will then review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). 3 V. Order 4 1. The April 17, 2020 order to show cause is discharged. ECF No. 31. 5 2. Petitioner’s motion for time to seek relief from the Ninth Circuit is denied. ECF No. 6 36 at 2. 7 3. Petitioner’s motion for return of his amended petition is granted. ECF No. 36 at 2-3. 8 The clerk’s office is directed to make a copy of the amended petition, ECF No. 30, and 9 mail the copy to petitioner. 10 4. Petitioner’s motion for an evidentiary hearing is denied. ECF No. 36 at 3. 11 IT IS SO ORDERED. ° \ prssann Rae — Dated: _ August 3, 2020 14 UNIT#D STATES MAGISTRATE JUDGE 15 16 | No. 206. 17 18 19 20 21 22 23 24 25 26 27 28