1 2 3 4 5 6 7 10 11 STEVEN MCCARTER, No. 2:22-cv-00462-KJM-CKD 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 15 Respondent.1 16 17 Petitioner is a state prisoner proceeding pro se in this habeas corpus action filed pursuant 18 to 28 U.S.C. § 2254. Currently pending before the court is respondent’s motion to dismiss the 19 petition on the ground that all of the claims are unexhausted. ECF No. 17. By way of opposition 20 thereto, petitioner filed a motion to stay these proceedings in order to exhaust his state court 21 remedies. ECF No. 22. For the reasons discussed below, the undersigned recommends that 22 respondent’s motion to dismiss be granted and petitioner’s motion for a stay and abeyance be 23 denied. 24 I. Factual and Procedural History 25 Following a jury trial, petitioner was convicted in the Sacramento County Superior Court 26 of two counts of rape; two counts of assault with a deadly weapon; assault to commit rape; and 27 1 Pursuant to respondent’s request, the warden has been substituted as the proper respondent in 28 this action. See ECF No. 17 at 1. 1 assault likely to produce great bodily injury involving two different victims. ECF No. 1. On July 2 14, 2017, he was sentenced to 115 years to life plus a consecutive determinate term of 36 years to 3 life in prison. ECF No. 18-1 (Abstract of Judgment); ECF No. 18-7 (direct appeal opinion). 4 On direct appeal to the California Court of Appeal, petitioner raised five claims for relief. 5 In his first two claims for relief, petitioner asserted that the trial court violated his right to due 6 process by instructing the jury on legally invalid theories that a belt and a bottle were inherently 7 dangerous weapons. See ECF No. 18-2 (Appellant’s Opening Brief). Next, petitioner contended 8 that his right to due process was violated when the trial court failed to sua sponte instruct the jury 9 on the lesser included offense of simple assault on count six which charged him with assault with 10 a deadly weapon. ECF No. 18-2. In his fourth claim on appeal, petitioner argued that the 11 admission of the Gina Doe rape as evidence of his propensity to attempt to rape Rita Doe violated 12 his right to due process. Id. Lastly, petitioner requested a limited sentencing remand for the 13 purpose of allowing the trial court to determine whether to strike the five-year prior serious felony 14 convictions. Id. In a supplemental opening brief, petitioner requested the Court of Appeal to 15 strike his prior prison term enhancements based on a recent change in the law made retroactive to 16 cases on appeal. See ECF No. 18-5. In its opinion dated May 10, 2021, the California Court of 17 Appeal struck petitioner’s six year prison priors, but otherwise affirmed the judgment. ECF No. 18 18-7. 19 Petitioner next filed a petition for review in the California Supreme Court raising only two 20 claims for relief. ECF No. 18-8. First, petitioner asserted that a limited sentencing remand was 21 appropriate to allow the trial court to determine whether to strike petitioner’s prior convictions 22 from his sentence. ECF No. 18-8. Lastly, petitioner raised a due process challenge to the 23 admission of propensity evidence to be used to establish the attempted rape charge. ECF No. 18- 24 8. The California Supreme Court denied the petition on July 28, 2021. ECF No. 18-9. 25 Petitioner did not file any state habeas corpus petitions challenging his conviction before 26 filing the instant habeas application on February 10, 2022.2 ECF No. 1. The petition contains 27 2 The filing date of the petition was calculated using the prison mailbox rule. Houston v. Lack, 28 487 U.S. 266 (1988). 1 three claims for relief. ECF No. 1 at 5. First, petitioner contends that his right to due process was 2 violated based on the trial court’s instruction that a belt was a deadly weapon under CALCRIM 3 No. 1191. ECF No. 1 at 5. Next petitioner alleges that his trial counsel was ineffective for failing 4 to present evidence that the prosecutor withheld evidence and for not objecting to the lack of 5 DNA evidence in his case. Id. Third, petitioner asserts that the prosecutor engaged in 6 misconduct. Id. 7 Respondent filed a motion to dismiss the pending habeas application because none of the 8 claims have been properly exhausted in state court. ECF No. 17. Petitioner’s jury instruction 9 challenge was not included in his petition for review to the California Supreme Court on direct 10 appeal. ECF No 17 at 3. The remaining claims have not been presented to either the California 11 Court of Appeal or the California Supreme Court. ECF No. 17. Therefore, “[u]nless petitioner 12 shows a stay is appropriate, the petition must be dismissed.” Id. at 3 (citing Mena v. Long, 813 13 F.3d 907 (9th Cir. 2016). 14 Petitioner opposed the motion by filing a request for a stay and abeyance pursuant to 15 Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 22. As good cause for the stay, petitioner 16 asserts that after “becoming aware that the… report of Criminalist Stephanie James had the 17 potential to raise doubt about petitioner’s guilt, he immediately set about searching for those 18 document(s) in order to mount a collateral attack upon his conviction.” ECF No. 22 at 7-8. 19 Additionally, as a pro se prisoner, petitioner did not learn that he first needed to file a state habeas 20 petition until after he filed the pending § 2254 application. Id. at 8. Petitioner requests a stay in 21 order to return to state court to “first, pursue a writ seeking Criminalist James’ analysis and report 22 relating to her findings… followed by a writ challenging the conviction.” Id. 23 Respondent filed an opposition to petitioner’s motion for a stay and abeyance. ECF No. 24 23. First, respondent contends that petitioner has not demonstrated the requisite good cause for a 25 Rhines stay. Respondent argues that petitioner only presented conclusory assertions that are not 26 supported by any evidence explaining why he failed to exhaust his claims in state court. 27 “Because [p]etitioner’s laymen status did not prevent him from raising the unexhausted claims in 28 his federal petition it, in turn, cannot be the reason he did not raise them in the state supreme 1 court.” ECF No. 23 at 3. According to respondent, this is not a case where petitioner protectively 2 filed a § 2254 petition because he was reasonably confused about whether a state habeas petition 3 would be deemed timely filed. Id. at 4 (citing Pace v. Diguglielmo, 544 U.S. 408, 416 (2005)). 4 Lastly, respondent argues that petitioner has not demonstrated that he has not engaged in 5 intentional delay since he has yet to file any state habeas petition challenging his conviction. Id. 6 at 5. 7 Petitioner did not file a reply brief in support of his motion for a stay, and the time in 8 which to do so has expired. 9 II. Legal Standards 10 A. Exhaustion of State Court Remedies 11 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 12 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 13 by providing the highest state court with a full and fair opportunity to consider each habeas claim 14 before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton 15 v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985).
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1 2 3 4 5 6 7 10 11 STEVEN MCCARTER, No. 2:22-cv-00462-KJM-CKD 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 15 Respondent.1 16 17 Petitioner is a state prisoner proceeding pro se in this habeas corpus action filed pursuant 18 to 28 U.S.C. § 2254. Currently pending before the court is respondent’s motion to dismiss the 19 petition on the ground that all of the claims are unexhausted. ECF No. 17. By way of opposition 20 thereto, petitioner filed a motion to stay these proceedings in order to exhaust his state court 21 remedies. ECF No. 22. For the reasons discussed below, the undersigned recommends that 22 respondent’s motion to dismiss be granted and petitioner’s motion for a stay and abeyance be 23 denied. 24 I. Factual and Procedural History 25 Following a jury trial, petitioner was convicted in the Sacramento County Superior Court 26 of two counts of rape; two counts of assault with a deadly weapon; assault to commit rape; and 27 1 Pursuant to respondent’s request, the warden has been substituted as the proper respondent in 28 this action. See ECF No. 17 at 1. 1 assault likely to produce great bodily injury involving two different victims. ECF No. 1. On July 2 14, 2017, he was sentenced to 115 years to life plus a consecutive determinate term of 36 years to 3 life in prison. ECF No. 18-1 (Abstract of Judgment); ECF No. 18-7 (direct appeal opinion). 4 On direct appeal to the California Court of Appeal, petitioner raised five claims for relief. 5 In his first two claims for relief, petitioner asserted that the trial court violated his right to due 6 process by instructing the jury on legally invalid theories that a belt and a bottle were inherently 7 dangerous weapons. See ECF No. 18-2 (Appellant’s Opening Brief). Next, petitioner contended 8 that his right to due process was violated when the trial court failed to sua sponte instruct the jury 9 on the lesser included offense of simple assault on count six which charged him with assault with 10 a deadly weapon. ECF No. 18-2. In his fourth claim on appeal, petitioner argued that the 11 admission of the Gina Doe rape as evidence of his propensity to attempt to rape Rita Doe violated 12 his right to due process. Id. Lastly, petitioner requested a limited sentencing remand for the 13 purpose of allowing the trial court to determine whether to strike the five-year prior serious felony 14 convictions. Id. In a supplemental opening brief, petitioner requested the Court of Appeal to 15 strike his prior prison term enhancements based on a recent change in the law made retroactive to 16 cases on appeal. See ECF No. 18-5. In its opinion dated May 10, 2021, the California Court of 17 Appeal struck petitioner’s six year prison priors, but otherwise affirmed the judgment. ECF No. 18 18-7. 19 Petitioner next filed a petition for review in the California Supreme Court raising only two 20 claims for relief. ECF No. 18-8. First, petitioner asserted that a limited sentencing remand was 21 appropriate to allow the trial court to determine whether to strike petitioner’s prior convictions 22 from his sentence. ECF No. 18-8. Lastly, petitioner raised a due process challenge to the 23 admission of propensity evidence to be used to establish the attempted rape charge. ECF No. 18- 24 8. The California Supreme Court denied the petition on July 28, 2021. ECF No. 18-9. 25 Petitioner did not file any state habeas corpus petitions challenging his conviction before 26 filing the instant habeas application on February 10, 2022.2 ECF No. 1. The petition contains 27 2 The filing date of the petition was calculated using the prison mailbox rule. Houston v. Lack, 28 487 U.S. 266 (1988). 1 three claims for relief. ECF No. 1 at 5. First, petitioner contends that his right to due process was 2 violated based on the trial court’s instruction that a belt was a deadly weapon under CALCRIM 3 No. 1191. ECF No. 1 at 5. Next petitioner alleges that his trial counsel was ineffective for failing 4 to present evidence that the prosecutor withheld evidence and for not objecting to the lack of 5 DNA evidence in his case. Id. Third, petitioner asserts that the prosecutor engaged in 6 misconduct. Id. 7 Respondent filed a motion to dismiss the pending habeas application because none of the 8 claims have been properly exhausted in state court. ECF No. 17. Petitioner’s jury instruction 9 challenge was not included in his petition for review to the California Supreme Court on direct 10 appeal. ECF No 17 at 3. The remaining claims have not been presented to either the California 11 Court of Appeal or the California Supreme Court. ECF No. 17. Therefore, “[u]nless petitioner 12 shows a stay is appropriate, the petition must be dismissed.” Id. at 3 (citing Mena v. Long, 813 13 F.3d 907 (9th Cir. 2016). 14 Petitioner opposed the motion by filing a request for a stay and abeyance pursuant to 15 Rhines v. Weber, 544 U.S. 269 (2005). ECF No. 22. As good cause for the stay, petitioner 16 asserts that after “becoming aware that the… report of Criminalist Stephanie James had the 17 potential to raise doubt about petitioner’s guilt, he immediately set about searching for those 18 document(s) in order to mount a collateral attack upon his conviction.” ECF No. 22 at 7-8. 19 Additionally, as a pro se prisoner, petitioner did not learn that he first needed to file a state habeas 20 petition until after he filed the pending § 2254 application. Id. at 8. Petitioner requests a stay in 21 order to return to state court to “first, pursue a writ seeking Criminalist James’ analysis and report 22 relating to her findings… followed by a writ challenging the conviction.” Id. 23 Respondent filed an opposition to petitioner’s motion for a stay and abeyance. ECF No. 24 23. First, respondent contends that petitioner has not demonstrated the requisite good cause for a 25 Rhines stay. Respondent argues that petitioner only presented conclusory assertions that are not 26 supported by any evidence explaining why he failed to exhaust his claims in state court. 27 “Because [p]etitioner’s laymen status did not prevent him from raising the unexhausted claims in 28 his federal petition it, in turn, cannot be the reason he did not raise them in the state supreme 1 court.” ECF No. 23 at 3. According to respondent, this is not a case where petitioner protectively 2 filed a § 2254 petition because he was reasonably confused about whether a state habeas petition 3 would be deemed timely filed. Id. at 4 (citing Pace v. Diguglielmo, 544 U.S. 408, 416 (2005)). 4 Lastly, respondent argues that petitioner has not demonstrated that he has not engaged in 5 intentional delay since he has yet to file any state habeas petition challenging his conviction. Id. 6 at 5. 7 Petitioner did not file a reply brief in support of his motion for a stay, and the time in 8 which to do so has expired. 9 II. Legal Standards 10 A. Exhaustion of State Court Remedies 11 The exhaustion of state court remedies is a prerequisite to the granting of a petition for 12 writ of habeas corpus. 28 U.S.C. § 2254(b)(1). A petitioner satisfies the exhaustion requirement 13 by providing the highest state court with a full and fair opportunity to consider each habeas claim 14 before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton 15 v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). The prisoner must “fairly present” both the 16 operative facts and the federal legal theory supporting his federal claim to the state's highest 17 court, “thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 18 27, 29 (2004); see Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other 19 grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). The United States Supreme Court 20 has held that a federal district court may not entertain a petition for habeas corpus unless the 21 petitioner has exhausted state remedies with respect to each of the claims raised. Rose v. Lundy, 22 455 U.S. 509 (1982) (establishing the total exhaustion rule). 23 B. Stay and Abeyance 24 The court may stay a federal habeas application if petitioner demonstrates (1) good cause 25 for the failure to previously exhaust the claims in state court, (2) the claims at issue potentially 26 have merit, and (3) petitioner has been diligent in pursuing relief. See Rhines v. Weber, 544 U.S. 27 at 278; Mena v. Long, 813 F.3d 907, 910-12 (9th Cir. 2016) (applying the stay and abeyance 28 procedure to wholly unexhausted petitions). If petitioner fails to establish any of these three 1 factors then a Rhines stay is not appropriate. 2 In determining what constitutes good cause sufficient for a Rhines stay, the Ninth Circuit 3 Court of Appeals has determined that a petitioner does not have to demonstrate extraordinary 4 circumstances in order to justify a Rhines stay. Jackson v. Roe, 425 F.3d 654, 661-662 (9th Cir. 5 2005). The legal standard for cause to excuse a procedurally defaulted claim boils down to 6 objective factors external to the prisoner. See Murray v. Carrier, 477 U.S. 478, 488 (1986) 7 (emphasizing that to establish cause for a procedural default, a petitioner must show that “some 8 objective factor external to the defense impeded counsel’s efforts to comply with the State’s 9 procedural rule.”). 10 III. Analysis 11 Turning first to petitioner’s motion for a stay, it is clear that petitioner has not presented 12 any of his pending claims to the California Supreme Court either by way of a petition for review 13 or a petition for writ of habeas corpus. Therefore, the pending § 2254 petition is wholly 14 unexhausted and a stay and abeyance is only available pursuant to Rhines v. Weber, 544 U.S. 269 15 (2005).3 16 In order to establish good cause for his failure to previously exhaust his claims, petitioner 17 relies on newly discovered evidence concerning the DNA analysis conducted by Criminalist 18 Stephanie James. See Rhines v. Weber, 544 U.S. 269 (2005). Although petitioner attaches this 19 newly discovered evidence suggesting that this raises doubt about his guilt, he does not indicate 20 when he first learned of the deficiencies in the criminalist’s report. See ECF No. 22 at 12-56. 21 The court has reviewed the evidence tendered by petitioner and notes that it is dated between 22 April 5, 2013 and May 19, 2015. ECF No. 22 at 12-36. Then, beginning on November 29, 2021, 23 petitioner began sending letters to various parties, including his former trial counsel, trying to 24 obtain copies of all the DNA test results. ECF No. 22 at 38-56. Petitioner does not explain the 25 gap between the California Supreme Court’s denial of his petition for review on July 28, 2021 26 3 A stay pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), is not available in this case 27 because petitioner’s § 2254 application contains only unexhausted claims. The three-step stay and abeyance described in Kelly requires holding in abeyance a fully exhausted § 2254 28 application while petitioner returns to state court to exhaust additional claims. 1 and his first request for the DNA evidence in November 2021. Based on this evidentiary gap, the 2 court is unable to conclude that petitioner has established good cause for his failure to previously 3 exhaust his claims in state court based on this newly discovered evidence.4 4 Additionally, petitioner relies on his pro se status and his lack of knowledge about the 5 state habeas process as a basis for staying these proceedings to allow him to properly exhaust his 6 claims. Respondent points out that this explanation did not prevent petitioner from filing his 7 claims pro se in the present § 2254 proceeding and, moreover, there is no evidence that petitioner 8 has filed any state habeas petition since learning of the need to properly exhaust his claims. Once 9 again, the court finds that petitioner has not supported his explanation with sufficient evidence to 10 justify his failure to previously exhaust his claims in state court. As a result, this explanation falls 11 into the category of “a bald assertion” that does not establish good cause under Rhines. See 12 Blake, 745 F.3d at 982. The court is also persuaded that petitioner’s generalized explanation 13 would run afoul of the dictate in Rhines that a stay and abeyance “should be available only in 14 limited circumstances.” Blake v. Baker, 745 F.3d 977, 981-82 (9th Cir. 2014) (quoting Rhines, 15 544 U.S. at 277)). Every pro se prisoner who filed a § 2254 petition after the conclusion of direct 16 appeal would be able to obtain a stay and abeyance utilizing this explanation. However, the 17 statutory scheme for federal habeas review requires state court remedies to be fully exhausted 18 before a prisoner files a § 2254 petition. See 28 U.S.C. § 2254(b). For all these reasons, the court 19 finds that petitioner has not established good cause sufficient to obtain a Rhines stay.5 The 20 undersigned recommends denying petitioner’s motion for a stay. 21 Based on the court’s conclusion that a stay is not appropriate in this case, the undersigned 22 further recommends granting respondent’s motion to dismiss petitioner’s § 2254 application as it 23 contains no exhausted claim for relief. See 28 U.S.C. § 2254(b)(1). 24 IV. Plain Language Summary for Pro Se Party 25 The following information is meant to explain this order in plain English and is not 26 4 Petitioner may supplement the record as he deems appropriate in his Objections to these 27 Findings and Recommendations. 5 In the interest of judicial economy, the court finds it unnecessary to address the remaining two 28 factors for obtaining a Rhines stay. 1 intended as legal advice. 2 The court has reviewed the evidence submitted along with your request to stay these 3 proceedings and concluded that you have not established good cause for the failure to previously 4 exhaust your state court remedies. The undersigned is recommending that your motion for a stay 5 be denied and respondent’s motion to dismiss your § 2254 petition be granted. 6 If you disagree with any of these recommendations, you have 14 days to explain why it is 7 not the correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s 8 Findings and Recommendations.” The district court judge assigned to your case will review any 9 objections and make the final decision in your case. 10 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court substitute Ron 11 Broomfield as the respondent in this action. 12 IT IS FURTHER RECOMMENDED that: 13 1. Petitioner’s motion for a Rhines stay (ECF No. 22) be denied. 14 2. Respondent’s motion to dismiss (ECF No. 17) be granted and the petition be 15 dismissed without prejudice as wholly unexhausted. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” In his objections petitioner 21 may address whether a certificate of appealability should issue in the event he files an appeal of 22 the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 23 court must issue or deny a certificate of appealability when it enters a final order adverse to the 24 applicant). Where, as here, a habeas petition is dismissed on procedural grounds, a certificate of 25 appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it 26 debatable whether the district court was correct in its procedural ruling;’ and (2) ‘that jurists of 27 reason would find it debatable whether the petition states a valid claim of the denial of a 28 constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. 1 || McDaniel, 529 U.S. 473, 484 (2000)). Any response to the objections shall be served and filed 2 || within fourteen days after service of the objections. The parties are advised that failure to file 3 || objections within the specified time may waive the right to appeal the District Court’s order. 4 | Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 5 || Dated: December 1, 2022 Card Kt | La Ly (g— 6 CAROLYN K DELANEY? 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 12/mcca0462.mtd+m4stay.docx 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28