1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KRISTOPHER WILLIAM LAWLESS, Case No. 1:22-cv-00523-JLT-EPG-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT IN PART RESPONDENT’S 12 v. MOTION TO DISMISS AND ALLOW PETITIONER TO PROCEED WITH 13 BRIAN CATES, EXHAUSTED CLAIM 14 Respondent. (ECF No. 14) 15 16 Petitioner Kristopher William Lawless is a state prisoner proceeding pro se with a 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. As Petitioner’s first claim for 18 relief is unexhausted, the undersigned recommends granting in part Respondent’s motion to 19 dismiss and allowing Petitioner to proceed only with his exhausted ineffective assistance of 20 counsel claim. 21 I. 22 BACKGROUND 23 On January 13, 2017, Petitioner was convicted of, inter alia, child endangerment. 24 Petitioner was sentenced to a twelve-year imprisonment term for child endangerment plus a 25 consecutive five-year term for a prior serious felony conviction enhancement. (LDs1 1, 2.) On 26 February 13, 2019, the California Court of Appeal, Fifth Appellate District, affirmed the 27 judgment, but remanded for resentencing “so the trial court may consider whether to exercise its 1 newly created discretion to dismiss the enhancement.” (LD 2 at 10–11.) 2 On April 24, 2019, the 2 California Supreme Court denied the petition for review. (LDs 3, 4.) On July 25, 2019, the trial 3 court held a hearing, declined to strike the enhancement, and reimposed the same sentence. 4 Petitioner filed an appeal, and appointed counsel filed a brief pursuant to People v. Wende, 25 5 Cal. 3d 436 (1979), raising no issues and requesting that the California Court of Appeal 6 independently review the entire record on appeal. On March 12, 2021, the California Court of 7 Appeal affirmed the judgment. (LD 5.) On June 9, 2021, the California Supreme Court denied 8 the petition for review. (LDs 6, 7.) 9 On May 2, 2022, Petitioner filed a petition for writ of habeas corpus, raising the 10 following claims for relief: (1) the trial court’s erroneous failure to dismiss the five-year 11 sentencing enhancement for a prior serious felony conviction; and (2) ineffective assistance of 12 counsel for failing to set forth post-conviction mitigating factors at the resentencing hearing that 13 would support dismissing the enhancement. (ECF No. 1.) On June 21, 2022, Respondent filed a 14 motion to dismiss, arguing that Petitioner’s claim regarding the trial court’s failure to dismiss the 15 sentencing enhancement is unexhausted and that “[u]nless Petitioner establishes that a stay is 16 appropriate (and thus far he has not), Petitioner must delete his unexhausted claim and proceed 17 with his exhausted claim or the entire petition must be dismissed.” (ECF No. 14 at 3.) Petitioner 18 filed an opposition and supplemental opposition, and Respondent filed a reply. (ECF Nos. 18, 19 21, 19.) 20 II. 21 DISCUSSION 22 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 23 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 24 on comity to the state court and gives the state court the initial opportunity to correct the state’s 25 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 26 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 27 providing the highest state court with a full and fair opportunity to consider each claim before 1 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 2 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 3 To provide the highest state court the necessary opportunity, the petitioner must “fairly 4 present” the claim with “reference to a specific federal constitutional guarantee, as well as a 5 statement of the facts that entitle the petitioner to relief.” Duncan, 513 U.S. at 365; Gray v. 6 Netherland, 518 U.S. 152, 162–63 (1996). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 7 2008) (“Fair presentation requires that the petitioner ‘describe in the state proceedings both the 8 operative facts and the federal legal theory on which his claim is based so that the state courts 9 have a “fair opportunity” to apply controlling legal principles to the facts bearing upon his 10 constitutional claim.’” (citations omitted)). The Ninth Circuit “has concluded that a petitioner has 11 ‘fairly presented’ a claim not named in a petition if it is ‘sufficiently related’ to an exhausted 12 claim. Claims are ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by raising 13 one claim, the petition clearly implies another error.” Wooten v. Kirkland, 540 F.3d 1019, 1025 14 (9th Cir. 2008) (citing Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004)). 15 Petitioner argues that in presenting his ineffective assistance of counsel claim to the 16 California Supreme Court, he also referred to a “due process violation” and stated, “All I wanted 17 was a fair and impartial sentence modification hearing,” which Petitioner contends was sufficient 18 to fairly present his claim that the trial court erroneously failed to dismiss the five-year 19 sentencing enhancement. (ECF No. 18 at 4, 5; ECF No. 21 at 4.) “Mere ‘general appeals to broad 20 constitutional principles, such as due process, equal protection, and the right to a fair trial,’ do 21 not establish exhaustion.” Castillo v. McFadden, 399F.3d 993, 999 (9th Cir. 2005) (quoting 22 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). 23 Further, the Ninth Circuit rejected a similar argument in Rose v. Palmateer, 395 F.3d 24 1108 (9th Cir. 2005). The petitioner in Rose asserted that his confession and videotaped 25 reenactment of the crime were induced in violation of the Fifth Amendment. He claimed that 26 although he did not assert the substantive Fifth Amendment claim in his direct appeal or state 27 post-conviction petition, “he ‘indirectly’ exhausted this claim” by alleging ineffective assistance 1 enactment and ineffective assistance of appellate counsel for failure to appeal the suppression 2 ruling. Id. at 1110–11. The Ninth Circuit rejected the argument, finding that “although Rose’s 3 Fifth Amendment claim is related to his claim of ineffective assistance, he did not fairly present 4 the Fifth Amendment claim to the state courts when he merely discussed it as one of several 5 issues which were handled ineffectively by his trial and appellate counsel. While admittedly 6 related, they are distinct claims with separate elements of proof, and each claim should have 7 been separately and specifically presented to the state courts.” Rose, 395 F.3d at 1112.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KRISTOPHER WILLIAM LAWLESS, Case No. 1:22-cv-00523-JLT-EPG-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT IN PART RESPONDENT’S 12 v. MOTION TO DISMISS AND ALLOW PETITIONER TO PROCEED WITH 13 BRIAN CATES, EXHAUSTED CLAIM 14 Respondent. (ECF No. 14) 15 16 Petitioner Kristopher William Lawless is a state prisoner proceeding pro se with a 17 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. As Petitioner’s first claim for 18 relief is unexhausted, the undersigned recommends granting in part Respondent’s motion to 19 dismiss and allowing Petitioner to proceed only with his exhausted ineffective assistance of 20 counsel claim. 21 I. 22 BACKGROUND 23 On January 13, 2017, Petitioner was convicted of, inter alia, child endangerment. 24 Petitioner was sentenced to a twelve-year imprisonment term for child endangerment plus a 25 consecutive five-year term for a prior serious felony conviction enhancement. (LDs1 1, 2.) On 26 February 13, 2019, the California Court of Appeal, Fifth Appellate District, affirmed the 27 judgment, but remanded for resentencing “so the trial court may consider whether to exercise its 1 newly created discretion to dismiss the enhancement.” (LD 2 at 10–11.) 2 On April 24, 2019, the 2 California Supreme Court denied the petition for review. (LDs 3, 4.) On July 25, 2019, the trial 3 court held a hearing, declined to strike the enhancement, and reimposed the same sentence. 4 Petitioner filed an appeal, and appointed counsel filed a brief pursuant to People v. Wende, 25 5 Cal. 3d 436 (1979), raising no issues and requesting that the California Court of Appeal 6 independently review the entire record on appeal. On March 12, 2021, the California Court of 7 Appeal affirmed the judgment. (LD 5.) On June 9, 2021, the California Supreme Court denied 8 the petition for review. (LDs 6, 7.) 9 On May 2, 2022, Petitioner filed a petition for writ of habeas corpus, raising the 10 following claims for relief: (1) the trial court’s erroneous failure to dismiss the five-year 11 sentencing enhancement for a prior serious felony conviction; and (2) ineffective assistance of 12 counsel for failing to set forth post-conviction mitigating factors at the resentencing hearing that 13 would support dismissing the enhancement. (ECF No. 1.) On June 21, 2022, Respondent filed a 14 motion to dismiss, arguing that Petitioner’s claim regarding the trial court’s failure to dismiss the 15 sentencing enhancement is unexhausted and that “[u]nless Petitioner establishes that a stay is 16 appropriate (and thus far he has not), Petitioner must delete his unexhausted claim and proceed 17 with his exhausted claim or the entire petition must be dismissed.” (ECF No. 14 at 3.) Petitioner 18 filed an opposition and supplemental opposition, and Respondent filed a reply. (ECF Nos. 18, 19 21, 19.) 20 II. 21 DISCUSSION 22 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 23 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 24 on comity to the state court and gives the state court the initial opportunity to correct the state’s 25 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 26 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 27 providing the highest state court with a full and fair opportunity to consider each claim before 1 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 2 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 3 To provide the highest state court the necessary opportunity, the petitioner must “fairly 4 present” the claim with “reference to a specific federal constitutional guarantee, as well as a 5 statement of the facts that entitle the petitioner to relief.” Duncan, 513 U.S. at 365; Gray v. 6 Netherland, 518 U.S. 152, 162–63 (1996). See also Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 7 2008) (“Fair presentation requires that the petitioner ‘describe in the state proceedings both the 8 operative facts and the federal legal theory on which his claim is based so that the state courts 9 have a “fair opportunity” to apply controlling legal principles to the facts bearing upon his 10 constitutional claim.’” (citations omitted)). The Ninth Circuit “has concluded that a petitioner has 11 ‘fairly presented’ a claim not named in a petition if it is ‘sufficiently related’ to an exhausted 12 claim. Claims are ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by raising 13 one claim, the petition clearly implies another error.” Wooten v. Kirkland, 540 F.3d 1019, 1025 14 (9th Cir. 2008) (citing Lounsbury v. Thompson, 374 F.3d 785, 788 (9th Cir. 2004)). 15 Petitioner argues that in presenting his ineffective assistance of counsel claim to the 16 California Supreme Court, he also referred to a “due process violation” and stated, “All I wanted 17 was a fair and impartial sentence modification hearing,” which Petitioner contends was sufficient 18 to fairly present his claim that the trial court erroneously failed to dismiss the five-year 19 sentencing enhancement. (ECF No. 18 at 4, 5; ECF No. 21 at 4.) “Mere ‘general appeals to broad 20 constitutional principles, such as due process, equal protection, and the right to a fair trial,’ do 21 not establish exhaustion.” Castillo v. McFadden, 399F.3d 993, 999 (9th Cir. 2005) (quoting 22 Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). 23 Further, the Ninth Circuit rejected a similar argument in Rose v. Palmateer, 395 F.3d 24 1108 (9th Cir. 2005). The petitioner in Rose asserted that his confession and videotaped 25 reenactment of the crime were induced in violation of the Fifth Amendment. He claimed that 26 although he did not assert the substantive Fifth Amendment claim in his direct appeal or state 27 post-conviction petition, “he ‘indirectly’ exhausted this claim” by alleging ineffective assistance 1 enactment and ineffective assistance of appellate counsel for failure to appeal the suppression 2 ruling. Id. at 1110–11. The Ninth Circuit rejected the argument, finding that “although Rose’s 3 Fifth Amendment claim is related to his claim of ineffective assistance, he did not fairly present 4 the Fifth Amendment claim to the state courts when he merely discussed it as one of several 5 issues which were handled ineffectively by his trial and appellate counsel. While admittedly 6 related, they are distinct claims with separate elements of proof, and each claim should have 7 been separately and specifically presented to the state courts.” Rose, 395 F.3d at 1112. 8 Similarly, here, although related, Petitioner’s exhausted ineffective assistance of counsel 9 claim for failing to set forth post-conviction mitigating factors at the resentencing hearing is 10 distinct from his claim that the trial court erroneously failed to dismiss the five-year sentencing 11 enhancement. In order to prevail on his ineffective assistance of counsel claim, Petitioner “was 12 required to show that his counsel’s representation ‘fell below an objective standard of 13 reasonableness’ and that ‘there [was] a reasonable probability that, but for counsel’s 14 unprofessional errors, the result of the proceeding would have been different.’” Rose, 395 F.3d at 15 1112 (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 687–88, 694 16 (1984)). “Pursuant to this standard, [Petitioner]’s Sixth Amendment [ineffective assistance of 17 counsel] claim could have been rejected regardless of whether” the trial court erroneously failed 18 to dismiss the five-year sentencing enhancement. Rose, 395 F.3d at 1112. Accordingly, the Court 19 finds that Petitioner did not fairly present his first claim for relief—that the trial court 20 erroneously failed to dismiss the five-year sentencing enhancement—to the California Supreme 21 Court. 22 As Petitioner has presented the Court with a mixed petition and has not requested to stay 23 the case,3 the Court “should allow the petitioner to delete the unexhausted claims and to proceed 24 with the exhausted claims if dismissal of the entire petition would unreasonably impair the 25 petitioner’s right to obtain federal relief.” Rhines v. Weber, 544 U.S. 269, 278 (2005) (citing 26 Lundy, 455 U.S. at 520). Accord Dixon v. Baker, 847 F.3d 714, 719 (9th Cir. 2017). 27 3 Petitioner states that “[i]f this Court agrees with respondents [sic] claim . . . petitioner asks claim 1 be removed and 1 Il. 2 RECOMMENDATION 3 Accordingly, the undersigned HEREBY RECOMMENDS that: 4 1. Respondent’s motion to dismiss (ECF No. 14) be GRANTED IN PART; and 5 2. Petitioner be allowed to delete the unexhausted first claim in the petition and proceed 6 with the exhausted ineffective assistance of counsel claim. 7 This Findings and Recommendation is submitted to the assigned United States District 8 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 | Rules of Practice for the United States District Court, Eastern District of California. Within 10 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 11 | written objections with the court and serve a copy on all parties. Such a document should be 12 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 13 | objections shall be served and filed within fourteen (14) days after service of the objections. The 14 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 15 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 16 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 17 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 18 | Cir. 1991)). 19 IT IS SO ORDERED. 21| Dated: _ October 26, 2022 [spe ey 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28