Johnson v. Allison

• Court: District Court, S.D. California
• Decided: April 7, 2020
• Docket: 3:19-cv-01673
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID LEONARD JOHNSON, Case No.: 19cv1673-LAB(KSC)

12 Petitioner, REPORT AND RECOMMENDA- 13 v. TION RE RESPONDENT'S MOTION TO DISMISS [Doc. No. 11] AND 14 MARION SPEARMAN, Warden, PETITIONER’S MOTION FOR 15 Respondent. STAY AND ABEYANCE [Doc. No. 14] 16 17 Petitioner David Leonard Johnson, a state prisoner proceeding pro se, has filed a 18 Petition for Writ of Habeas Corpus pursuant to Title 28, United States Code, Section 19 2254, challenging his conviction and sentence in San Diego Superior Court Case No. 20 SCD237392. [Doc. No. 1.] 21 Before the Court is respondent’s Motion to Dismiss. [Doc. No. 11.] In the Motion 22 to Dismiss, respondent argues that the District Court should abstain from reviewing the 23 merits of the Petition and dismiss it pursuant to the abstention doctrine set forth in 24 Younger v. Harris, 401, U.S. 37 (1971), because state court proceedings in San Diego 25 Superior Court Case No. SCD237392 are ongoing. [Doc. No. 11-1, at pp. 3-6.] 26 Petitioner did not file an opposition to respondent’s Motion to Dismiss. However, 27 petitioner did file a one-page Motion Requesting Stay and Abeyance. [Doc. No. 14.] 28 Citing Rhines v. Webber, 544 U.S 269 (2005), petitioner requests that the Court issue a 1 stay and abeyance order “until the pending Petition for Writ of Habeas Corpus [filed] in 2 San Diego Superior Court for relief under Senate Bill 1393 (HC23651) has been 3 decided.” [Doc No. 14.] 4 For the reasons outlined more fully below, IT IS RECOMMENDED that the 5 District Court GRANT respondent’s Motion to Dismiss. [Doc. No. 11.] IT IS 6 FURTHER RECOMMENDED that the District Court DENY petitioner’s request for stay 7 and abeyance. [Doc. No. 14.] 8 Background 9 A. The Federal Petition. 10 The Federal Petition includes two claims: (1) Based on the statutory elements test, 11 the trial court prejudicially erred because it failed to instruct the jury on receiving stolen 12 property as a lesser included offense to robbery [Doc. No. 1, at p. 18]; and (2) there was 13 insufficient evidence to establish that petitioner’s two prior assault convictions qualified 14 as strikes and serious felony priors under California law [Doc. No. 1, at p. 35]. 15 B. Underlying Criminal Conviction. 16 Petitioner was convicted by a jury of the following offenses: (1) first degree 17 robbery; (2) first degree burglary; (3) assault with a deadly weapon by means likely to 18 produce great bodily injury; and (4) felony false imprisonment. [Doc. No. 12-11, at p. 2.] 19 As to all counts, the jury concluded petitioner personally used a knife while committing 20 these offenses. Through counsel, petitioner stipulated he was on bail at the time these 21 offenses were committed. The trial court also found true allegations petitioner had two 22 prior strike convictions, two prior serious felony convictions, and had previously served 23 four prison terms. The trial court sentenced petitioner to 17 years plus 25 years to life in 24 state prison. [Doc. No. 12-11, at pp. 2-3.] 25 C. Direct Appeals. 26 Petitioner raised claims in his direct appeal to the California Court of Appeal that 27 are essentially the same as those he presented in his Federal Petition. [Doc. No. 12-8, at 28 pp. 2-3.] The California Court of Appeal remanded the case to the trial court to clarify 1 whether petitioner’s prior conviction for possession of a controlled substance qualified as 2 a prior prison term for sentencing purposes and to correct sentencing errors made on the 3 abstract of judgment. [Doc. No. 12-11, at pp. 27-28.] The California Court of Appeal’s 4 decision affirmed the judgment in all other respects. [Doc. No. 12-11, at p. 29.] 5 Petitioner then raised the same claims included in his Federal Petition in a Petition 6 for Review before the California Supreme Court. [Doc. No. 12-12, at p. 3.] The Petition 7 for Review was denied on August 29, 2018. [Doc. No. 12-13, at p. 1.] Petitioner also 8 filed a petition for writ of certiorari in the United States Supreme Court, but it was denied 9 on February 19, 2019. [Doc. No. 12-14, at pp. 1-2.] 10 D. State Habeas Petitions. 11 1. First State Habeas Petition. 12 On January 8, 2019, petitioner returned to the San Diego Superior Court by filing a 13 habeas petition raising two issues. First, citing Senate Bill No. 1393, petitioner requested 14 that the trial judge modify his sentence by striking or dismissing prior serious felony 15 enhancements. [Doc. No. 12-15, at p. 3.] “S.B. 1393 amends sections 667(a) and 1385, 16 subdivision (b) (hereafter § 1385(b)), effective January 1, 2019, to give courts discretion 17 to dismiss or strike a prior serious felony conviction for sentencing purposes.” People v. 18 Garcia, 28 Cal. App. 5th 961, 965 (2019). “Senate Bill No. 1393 is retroactive to cases 19 not final on appeal as of the effective date of Senate Bill No. 1393.” People v. Gonzalez, 20 39 Cal. App. 5th 115, 123 (2019). 21 Second, citing Proposition 57, petitioner argued he qualified for an immediate 22 parole hearing, because he had completed the principal term for his violation of Penal 23 Code Section 245(a)(1). [Doc. No. 12-15, at p. 4.] Under Proposition 57, “all nonviolent 24 state prisoners are eligible for parole consideration, and they are eligible when they 25 complete the full term for their primary offense.” In re Edwards, 26 Cal. App. 5th 1181, 26 1186 (2018). 27 In a written Order filed on February 7, 2019, the San Diego Superior Court 28 concluded petitioner was not eligible for reconsideration of his sentence under Senate Bill 1 1393, because he did not provide proof he was entitled to retroactive application of the 2 new law based on the January 1, 2019 effective date. [Doc. No. 12-16, at pp. 5-6.] In the 3 same written opinion, the San Diego Superior Court denied petitioner’s Proposition 57 4 claim, because he did not provide proof he exhausted his administrative remedies with 5 the California Department of Corrections and Rehabilitation (“CDCR”). [Doc. No. 12- 6 16, at pp. 7-8.] 7 2. Second State Habeas Petition. 8 On April 29, 2019, petitioner filed a second habeas petition in the San Diego 9 Superior Court arguing he was qualified for reconsideration of his sentence under Senate 10 Bill 1393, because his sentence was not final as of the January 1, 2019 effective date. In 11 support of this contention, petitioner represented that he timely filed a writ of certiorari in 12 the United States Supreme Court, so his sentence was not final as of January 1, 2019. 13 [Doc. No. 12-17, at pp. 3-4.] On July 25, 2019, the People filed a response agreeing 14 petitioner qualified for re consideration of his sentence under Senate Bill 1393. [Doc. 15 No. 12-19, at p. 5.] 16 On September 16, 2019, the San Diego Superior Court issued an Order granting 17 petitioner’s request for reconsideration of his sentence “to the extent permitted under 18 Senate Bill 1393,” and set a state hearing for October 7, 2019. [Doc. No. 12-22, at p. 8.] 19 However, at the time respondent’s Motion to Dismiss was filed, the San Diego Superior 20 Court had not yet ruled on this petition. Although a re-sentencing hearing was set for 21 December 12, 2019, it was later continued to February 4, 2020. [Doc. No. 12-24, at p. 1; 22 Doc. No. 12-25.] In sum, this Petition was still pending in the state court system when 23 the instant Motion to Dismiss was filed by respondent. 24 Discussion 25 I. Motion to Dismiss Standards. 26 A motion to dismiss under Federal Rule 12(b)(6) may be based on either a “lack of 27 a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable 28 legal theory.” Johnson v. Riverside Healthcare System, LP, 534 F.3d 1116, 1121 (9th Cir. 1 2008) (citing Fed.R.Civ.P. 8(a)(2). “Factual allegations must be enough to raise a right to 2 relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. at 555. On the 3 other hand, “[a] document filed pro se is ‘to be liberally construed,’ and ‘a pro se 4 complaint, however inartfully pleaded, must be held to less stringent standards than 5 formal pleadings drafted by lawyers. . . .’” Erickson v. Pardus, 551 U.S. 89, 94 (2007). 6 II. The Abstention Doctrine. 7 Respondent contends the Petition in this case should be dismissed under the 8 abstention doctrine set forth by the Supreme Court in Younger v. Harris, 401 U.S. at 37, 9 because the Federal Petition was filed while petitioner was waiting for the San Diego 10 Superior Court to reconsider his sentence based on a recent change to California 11 sentencing law. As noted above, the San Diego Superior Court granted petitioner’s 12 second state habeas petition and scheduled a re-sentencing hearing so that petitioner’s 13 sentence could be reconsidered “to the extent permitted under Senate Bill 1392.” [Doc. 14 No. 12-22, at p. 8.] According to respondent, Younger applies because petitioner will be 15 able to appeal after his sentence is reconsidered by the San Diego Superior Court, so his 16 conviction is not yet final.1 [Doc. No. 11-1, at p. 3.] At the time respondent’s Motion to 17 Dismiss was filed, petitioner’s re-sentencing hearing had been continued from 18 December 12, 2019 to February 4, 2020. [Doc. No. 11-1, at p. 3.] 19 “Younger cautions against federal interference with ongoing state criminal, civil, 20 and administrative proceedings. [Citation omitted.] Specifically, Younger abstention is 21 appropriate when: (1) there is an ‘ongoing state judicial proceeding’; (2) the proceeding 22 ‘implicate[s] important state interests’; (3) there is an ‘adequate opportunity in the state 23 proceedings to raise constitutional challenges’; and (4) the requested relief ‘seeks to 24 25 1 See, e.g., Cal. Penal Code § 1237(b) (stating that “[a]n appeal may be taken . . . 26 (b) From any order after judgment affecting the substantial rights of the party”); People v. 27 Jordan, 21 Cal. App. 5th 1136, 1140 (2018) (indicating “[t]he denial of a motion to correct sentence is an appealable order because it is a post-judgment order affecting a 28 1 enjoin’ or has ‘the practical effect of enjoining’ the ongoing state judicial proceeding. 2 [Citation omitted.]” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018). “‘[O]nly in 3 the most unusual circumstances is a defendant entitled to have federal interposition by 4 way of injunction or habeas corpus until after the jury comes in, judgment has been 5 appealed from and the case concluded in the state courts.’” Carden v. State of Montana, 6 626 F.2d 82, 83–84 (9th Cir. 1980), quoting Drury v. Cox, 457 F.2d 764, 764-765 (9th 7 Cir. 1972). 8 An exception to abstention applies if the petitioner can show that ongoing state 9 proceedings involve “bad faith, harassment, or some other extraordinary circumstances 10 that would make abstention inappropriate. [Citation omitted.]” Baffert v. California 11 Horse Racing Bd., 332 F.3d 613, 617 (9th Cir. 2003). In addition, the Supreme Court in 12 Younger v. Harris, 401 U.S. at 37, said there would be “extraordinary circumstances . . . 13 where the danger of irreparable loss is both great and immediate.” Id. at 45. “Certain 14 types of injury, in particular, the cost, anxiety, and inconvenience of having to defend 15 against a single criminal prosecution, could not by themselves be considered ‘irreparable’ 16 in the special legal sense of that term. Instead, the threat to the [petitioner’s] federally 17 protected rights must be one that cannot be eliminated by his defense against a single 18 criminal prosecution.” Id. at 46. 19 As respondent contends, the facts and circumstances of this case indicate Younger 20 abstention is appropriate. First, a state judicial proceeding remains in process, because 21 the San Diego Superior Court granted petitioner’s request to have his sentence 22 reconsidered based on newly enacted legislation. Once the sentence is reconsidered by 23 the trial court, petitioner can pursue a direct appeal of the trial court’s decision, and it is 24 reasonable to assume he will do so. As noted above, the record indicates petitioner has 25 been persistent in his efforts to challenge his conviction and sentence. He appealed the 26 prior judgment and sentence at all levels in the state court system and then filed a petition 27 for review in the United States Supreme Court. In addition, he has filed a Federal 28 Petition and several habeas petitions in state court. 1 Second, important state interests are implicated. See, e.g., Hill v. McDonough, 547 2 U.S. 573, 584 (2006) (“Both the State and the victims of crime have an important interest 3 in the timely enforcement of a sentence”); Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 4 12-13, (1987) (declaring that states have important interests in administering their judicial 5 systems and in enforcing their criminal laws); Younger v. Harris, 401 U.S. at 51-52 6 (indicating a state has an interest in “carrying out the important and necessary task of 7 enforcing . . . laws against socially harmful conduct that the State believes in good faith 8 to be punishable under its laws and Constitution”); Roberts v. Dicarlo, 296 F. Supp. 2d 9 1182, 1185 (C.D. Cal. 2003) (concluding that “the state has an important interest in 10 passing upon and correcting violations of a defendant's rights”). 11 Third, there are no allegations in the Petition to even suggest petitioner does not 12 have an adequate opportunity to raise constitutional issues in the state judicial system. 13 See, e.g., Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987) (to determine whether state 14 proceedings meet the third Younger criterion, “a federal court should assume that state 15 procedures will afford an adequate remedy, in the absence of unambiguous authority to 16 the contrary”). 17 Fourth, the relief requested in the Federal Petition, if granted, would have the 18 practical effect of enjoining the state court proceedings. For example, the Federal 19 Petition challenges the sufficiency of the evidence presented by the prosecution and 20 considered by the trial court to establish that two of petitioner’s prior convictions qualify 21 as strikes and serious felonies for sentencing purposes. The trial court sentenced 22 petitioner under the Three Strikes Laws based on the existence of these prior convictions. 23 Therefore, if Federal habeas relief is granted in petitioner’s favor on this issue, it would 24 essentially enjoin or interfere with the state court proceedings by invalidating the 25 sentence petitioner is still challenging in the state court system. 26 In sum, based on the information presented to the Court, all requirements for 27 abstention under Younger v. Harris, 401 U.S. at 37, have been satisfied in this case. 28 There is also nothing in the record to indicate an exception to Younger v. Harris applies 1 based on exceptional circumstances that would justify intervention into the pending state 2 court proceedings. It is therefore RECOMMENDED that the District Court GRANT 3 respondent’s Motion to Dismiss the Petition without prejudice to petitioner re-filing his 4 petition after a final judgment has been entered in the state court proceedings and after 5 petitioner has satisfied the exhaustion requirement in 28 U.S.C. § 2254(b)(1)(A) as to any 6 other claims he wishes to include in his new petition. 7 III. Petitioner’s Request for Stay and Abeyance. 8 Petitioner’s only response to respondent’s Motion to Dismiss is a one-page, 9 unsupported request for stay and abeyance of his Federal Petition under Rhines v. 10 Webber, 544 U.S. at 269. Petitioner has not explained why he seeks a stay and abeyance 11 of his Federal Petition. [Doc. No. 14.] However, it appears petitioner may be seeking 12 stay and abeyance of his Federal Petition, so he can exhaust all his state court remedies as 13 to all claims in the state court system and avoid being barred by the one-year statute of 14 limitations. Respondent has not filed a response to petitioner’s request. 15 “An application for a writ of habeas corpus on behalf of a person in custody 16 pursuant to the judgment of a State court shall not be granted unless it appears that . . . the 17 applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C. 18 § 2254(b)(1)(A). Under the Antiterrorism and Effective Death Penalty Act of 1996 19 (AEDPA), a state prisoner who seeks to challenge a state court conviction must generally 20 file a Federal habeas petition within one year after “the date on which the judgment 21 became final by the conclusion of direct review or the expiration of the time for seeking 22 such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year limitations period is tolled for 23 the “time during which a properly filed application for State post-conviction or other 24 collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). 25 Prior to the enactment of AEDPA, the Supreme Court in Rose v. Lundy, 455 U.S. 26 509 (1982), imposed a “total exhaustion” rule. The “total exhaustion” rule requires 27 District Courts to dismiss “mixed petitions” that include exhausted and unexhausted 28 / / / 1 claims without prejudice and allow petitioners to return to state court to exhaust all 2 claims before returning to Federal Court. Id. at 518-522. 3 The petition at issue in Rhines v. Webber was “mixed” and was therefore subject to 4 dismissal under the “total exhaustion” rule in Rose v. Lundy. Rhines, 544. U.S. at 271- 5 273. However, by the time the District Court determined that some of the petitioner’s 6 claims were not exhausted, AEDPA’s one-year statute of limitations had expired. 7 Therefore, the petitioner would have been barred from exhausting his unexhausted claims 8 and then returning to Federal Court when exhaustion was completed. Id. at 273-274. 9 Under these circumstances, the Supreme Court held that “stay and abeyance should be 10 available [but] only in limited circumstances.” Id. at 277. 11 “[I]f employed too frequently,” the Supreme Court in Rhines v. Webber stated that 12 a stay would undermine “AEDPA’s objective of encouraging finality by allowing a 13 petitioner to delay the resolution of the federal proceedings.” Rhines, 544 U.S. at 277. 14 “Because a stay effectively excuses a petitioner’s failure to present his claims first to the 15 state courts, stay and abeyance is only appropriate when the district court determines 16 there was good cause for the petitioner’s failure to exhaust his claims first in state court. 17 Id. Summarizing its holding, the Supreme Court in Rhines v. Webber stated as follows: 18 “[I]t likely would be an abuse of discretion for a district court to deny a stay and dismiss 19 a mixed petition if the petitioner had good cause for his failure to exhaust, his 20 unexhausted claims are potentially meritorious, and there is no indication that he engaged 21 in intentionally dilatory litigation tactics.” Id. at 278. 22 Here, the facts at issue are distinguishable from those in Rhines v. Webber for at 23 least three reasons. First, petitioner did not file a “mixed” petition. The two claims he 24 included in his Federal Petition have already been exhausted, because they were raised on 25 direct appeal to the California Court of Appeal and the California Supreme Court. [Doc. 26 Nos. 12-8, at pp. 2-8; 12-11, at pp. 27-29; 12-12, at pp. 3; 12-13, at p. 1.] Second, it is 27 apparent the petitioner in Rhines v. Webber did not file his Federal petition prior to a final 28 judgment and while the state court proceedings were still ongoing. Rather, the petitioner 1 in Rhines v. Webber was collaterally pursuing additional, post-judgment claims in the 2 state court system that were not raised during his direct appeal, so the abstention doctrine 3 would not have applied. Third, unlike the circumstances at issue in Rhines v. Webber, 4 there is nothing to indicate the one-year statute of limitations in Section 2244(d)(1) has 5 expired or has even started to run against petitioner. Once again, a Federal habeas 6 petition must be filed within one year after “the date on which the judgment became final 7 by the conclusion of direct review or the expiration of the time for seeking such review.” 8 28 U.S.C. § 2244(d)(1)(A). The record here indicates the judgment against petitioner in 9 state court is not yet final, because he filed a post-judgment habeas petition in the trial 10 court seeking reconsideration of his sentence; his request was granted; his case was set 11 for a re-sentencing hearing; and the trial court’s ruling is subject to appeal. Therefore, it 12 is this Court’s view that the stay and abeyance procedure set forth by the Supreme Court 13 in Rhines v. Webber is not applicable under the circumstances presented in this case. 14 Even if stay and abeyance were to be extended to include the circumstances at 15 issue in this case, petitioner would not be entitled to stay and abeyance while he 16 continues to pursue his request for re-sentencing in the state court system. Petitioner has 17 not presented anything to indicate there is good cause for his failure to first exhaust all his 18 claims in the state court system before filing his Federal Petition. Accordingly, IT IS 19 RECOMMENDED that the District Court DENY petitioner’s request for stay and 20 abeyance under Rhines v. Webber, 544 U.S. at 269. 21 Conclusion 22 Based on the foregoing, IT IS HEREBY RECOMMENDED that the District Court 23 GRANT respondent’s Motion to Dismiss based on the abstention doctrine in Younger v. 24 Harris, 401 U.S. at 37. IT IS ALSO RECOMMENDED that the dismissal be without 25 prejudice so that petitioner may re-file his petition after a final judgment has been entered 26 in the state court proceedings; after petitioner has satisfied the exhaustion requirement in 27 28 U.S.C. Section 2254(b)(1)(A) as to any other claims he wishes to include in his new 28 / / / 1 || petition; and prior to the expiration of the one-year statute of limitations in 28 U.S.C. 2 || Section 2244(d)(1)(A). 3 IT IS FURTHER RECOMMENDED that the District Court DENY petitioner’s 4 ||request for stay and abeyance under Rhines v. Webber, 544 U.S. at 269, because this stay 5 abeyance procedure does not apply under the circumstances of this case, and even if 6 ||it were to be extended to include the circumstances of this case, petitioner has not 7 |{established good cause. 8 This Report and Recommendation is submitted to the assigned United States 9 || District Judge pursuant to Title 28, United States Code, Section 636(b), and Civil Local 10 |} Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 11 || California. 12 IT IS HEREBY ORDERED that no later than May 8, 2020 any party to this action 13 || may file and serve written objections to this Report and Recommendation. The document 14 || should be captioned “Objection to Report and Recommendation. 15 IT IS FURTHER ORDERED that any reply to objections shall be filed and served 16 |/no later than May 22, 2020. 17 The parties are advised that failure to file objections within the specified time may 18 || waive the right to raise those objections on appear of this Court order. Martinez v. YIst, 19 F.2d 1153, 1156 (9th Cir. 1991). 20 IT IS SO ORDERED. 21 ||Dated: April 7, 2020 Mh Uf; 22 WU LA SSS 73 Hori. Karen S. Crawford United States Magistrate Judge 24 25 26 27 28