Kalvin N. Craven v. Andre Gonzales, Acting Warden

• Court: District Court, N.D. California
• Decided: February 17, 2026
• Docket: 3:20-cv-01933
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KALVIN N. CRAVEN, Case No. 20-cv-01933-SI (PR)

8 Petitioner, ORDER DENYING MOTION FOR RECONSIDERATION RELATING TO 9 v. ORDER DENYING HABEAS RELIEF FOR REMAINING SIXTH 10 ANDRE GONZALES, Acting Warden,1 AMENDMENT CLAIM 11 Respondent. Re: Dkt. Nos. 95, 96

12 13 BACKGROUND 14 On May 30, 2025, the Court issued its Order Denying Habeas Relief for Remaining Sixth 15 Amendment Claim. Dkt. 93. It then issued its judgment and closed the case. Dkt. 94. 16 Before the Court is Kalvin N. Craven’s motion for relief from the judgment under Federal 17 Rules of Civil Procedure 59(e) and 60(b), stating that the Court “committed 3 clear errors during 18 it[]s analysis of [his] Sixth Amendment denial of counsel claim.” Dkt. 95 at 1.2 Thereafter, Craven 19 filed his Supplemental Motion for Reconsideration, in which he makes the same argument. Dkt. 20 96. 21 LEGAL STANDARD 22 Where the Court’s ruling has resulted in a final judgment or order, as here, a motion for 23 reconsideration may be based either on Rule 59(e) (motion to alter or amend judgment) or Rule 24

25 1 Andre Gonzales, the current acting warden of the prison where the petitioner is incarcerated, has been substituted as the respondent pursuant to Rule 25(d) of the Federal Rules of 26 Civil Procedure.

27 2 Page number citations refer to those assigned by the Court’s electronic case management 1 60(b) (motion for relief from judgment) of the Federal Rules of Civil Procedure. Because Craven’s 2 motion was not filed within ten days of entry of judgment, as is required for a Rule 59(e) motion, it 3 will be treated as a Rule 60(b) motion. 4 Rule 60(b) provides for reconsideration where one or more of the following is shown: 5 (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by 6 due diligence could not have been discovered before the Court’s decision; (3) fraud by the adverse 7 party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying 8 relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir.1993). 9 Rule 60(b) “provides a mechanism for parties to seek relief from a judgment when ‘it is no longer 10 equitable that the judgment should have prospective application,’ or when there is any other reason 11 justifying relief from the judgment.” Jeff D. v. Kempthorne, 365 F.3d 844, 851 (9th Cir. 2004) 12 (quoting Fed. R. Civ. P. 60(b)). 13 Subparagraph (6) requires a showing that the grounds justifying relief are extraordinary. See 14 Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981). Mere 15 dissatisfaction with the Court’s order, or belief that the Court is wrong in its decision, are not 16 grounds for relief under subparagraph (6) or any other provision of Rule 60(b). Id. “‘[T]he major 17 grounds that justify reconsideration involve an intervening change of controlling law, the 18 availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” 19 Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting 20 United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)). 21 22 DISCUSSION 23 Here, Craven claims that “the AEDPA standard of review did not apply to his Sixth 24 Amendment claim because no state court adjudicated the merits of his Sixth Amendment claim.” 25 Dkt. 95. To clarify, as part of Claim 2 of his federal petition, Craven contended that his Sixth 26 Amendment right to counsel was violated because of the trial court’s “ex parte” communication 27 with jurors before their requested readback, and the trial court’s subsequent lack of notification of 1 adjudicated the merits of his Sixth Amendment claim, the Court noted in its May 30, 2025 Order 2 that the state supreme court denied this claim summarily after he raised it in his state supreme court 3 habeas petition. See Dkt. 93 at 11 (citing Dkt. No. 73-5 at 3-16 (California Supreme Court Habeas 4 Petition dated Aug. 26, 2021), Dkt. No. 73-5 at 20 (California Supreme Court’s Summary Denial 5 dated Nov. 23, 2021)). Specifically, the Sixth Amendment claim was listed as claim number “3” 6 (which is identical to Claim 2 in his federal petition) on page 9 of that state supreme court habeas 7 petition, which states: 8 Trial counsel stipulated that readbacks of testimony requested by the jury during deliberation could go forth outside of trial’s presence. This was ineffective assistance 9 of counsel. The jury requested Officer Mullens’[s] testimony be re-read in it[]s entirety. Trial counsel’s absence prevented her from observing the impact the 10 readback had on the jury or whether the jurors had any questions for the Court. Her absence also prevented her from reviewing notes the jury sent the Court during 11 deliberation and objecting, if appropriate. (RT 514-515.) 12 Dkt. 73-5 at 9 (brackets added). Also, on page 12 of that same petition, under the heading 13 “Additional argument for Claim 3,” Craven may not have used the words “Sixth Amendment 14 violation,” but he argued that his trial counsel, Ms. Romany McNamara, should have known better 15 than to stipulate to be absent at any readbacks by the jury and that he was prejudiced from her 16 absence during the trial judge’s ex parte communication with the jury, stating as follows: 17 Prior to the jury’s deliberations beginning, defense counsel and the prosecutor stipulated any rereading of testimony requested by the jury could be done outside 18 their presence. This was ineffective assistance of counsel by defense. During deliberation juror #12 asked the trial court[:] if the jury came to a decision on the 19 charges but got hung on the enhancements to the charges, what would happen. RT 515. 20 The trial court did not give a substantive answer. The court told the jury it did not 21 want to go too far down the road since the attorneys were not present. The court told the jury to write down any questions and they will be addressed. Approximately 14 22 minutes later the trial court accepted the jury’s verdicts without answering juror #12’s question or notifying defense counsel of the ex parte communication with the 23 jury of the question posed. Defense counsel’s agreement that [s]he not be present at any readbacks by the jury, as shown above was ineffective assistance of counsel. 24 Undersigned counsel has practiced criminal defense in the Federal Courts in over 48 25 years. One thing counsel has learned is that defense counsel should never agree to not being present at any portion of the case because no one knows what could happen. 26 In the instant case[,] trial counsel’s absence prejudiced his client. 27 Id. at 12 (brackets added). 1 [his] Sixth Amendment denial of counsel claim.” Dkt. No. 95 at 3. In essence, Craven is arguing 2 that this claim is unexhausted, and this Court “should grant [his] motion for reconsideration . . . 3 [a]nd review his Sixth Amendment Claim [d]e [n]ovo.” Id. at 4. 4 A federal court may only grant a writ of habeas corpus with respect to a person incarcerated 5 pursuant to a state court judgment if “he is in custody in violation of the Constitution or laws or 6 treaties of the United States,” 28 U.S.C. § 2254(a), and “has exhausted the remedies available in the 7 courts of the State,” id. § 2254(b)(1)(A). To exhaust a federal claim in state court, a prisoner must 8 “give state courts a fair opportunity to act on [his] claims.” O’Sullivan v. Boerckel, 526 U.S. 838, 9 844 (1999) (emphasis in original). Thus, it seems Craven is arguing that he did not exhaust his Sixth 10 Amendment claim because he did not include the words “Sixth Amendment violation” in his state 11 habeas petition filed in the California Supreme Court. Dkt. No. 95 at 3. The Court disagrees. As 12 shown above, in his pro se state supreme court habeas petition, Craven argued that his counsel 13 “should never agree to not being present at any portion of the case because no one knows what could 14 happen.” Dkt. No. 73-5 at 12. He then specifically states that “trial counsel’s absence prejudiced 15 his client.” Id. (emphasis added). While Craven did not explicitly cite the Sixth Amendment of the 16 United States Constitution, he used the aforementioned language and also the phrase “ineffective 17 assistance of counsel” two times. See id. His state supreme court habeas petition did not explicitly 18 identify whether his claim was based on the federal constitution, the state constitution, or both. Id. 19 The Ninth Circuit case, Peterson v. Lampert, 319 F.3d 1153 (9th Cir. 2003) (en banc), can guide the 20 Court in its exhaustion analysis. While in Peterson, the Ninth Circuit found that the petitioner had 21 failed to exhaust his federal ineffective assistance claim in state court, this Court finds that under 22 the analysis outlined in Peterson, Craven exhausted his Sixth Amendment claim. 23 First, Peterson makes clear that, for the purposes of exhaustion, pro se petitions are held to 24 a more lenient standard than counseled petitions. Id. at 1159 (“[T]he complete exhaustion rule is 25 not to trap the unwary pro se prisoner.” (quoting Slack v. McDaniel, 529 U.S. 473, 487 (2000) 26 (alteration in original))). As mentioned above, in the instant matter, Craven’s petition to the 27 California Supreme Court was pro se. Next, Peterson makes clear that, depending on the context 1 phrase “ineffective assistance of counsel.” Id. Peterson had argued his federal ineffective assistance 2 claim to the Oregon Court of Appeals, but in his petition to the Oregon Supreme Court he had only 3 argued that he received “inadequate assistance of counsel,” id. at 1157 (emphasis added). 4 Peterson’s petition for review to the Oregon Supreme Court did not refer to his appellate court brief, 5 did not mention any provision of the Federal Constitution, and did not mention “ineffective” 6 assistance of counsel. Id. Peterson could have fairly presented his federal claim in a number of 7 ways, including (but not limited to) the ways just mentioned, but he specifically and exclusively 8 alleged a violation of his right to “adequate” assistance of counsel under the Oregon Constitution. 9 Id. By contrast, here, Craven’s petition twice mentioned “ineffective assistance of counsel,” and 10 the Sixth Amendment guarantees not only assistance, but the effective assistance, of counsel. See 11 Strickland v. Washington, 466 U.S. 668, 686 (1984). 12 Further, it should have been evident to the California Supreme Court that Craven was not 13 only raising an ineffective assistance of counsel claim, but also a claim under the Sixth Amendment, 14 which “guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal 15 proceedings.’” Missouri v. Frye, 566 U.S. 134, 140 (2012) (quoting Montejo v. Louisiana, 556 U.S. 16 778, 786 (2009)). A trial would be “presumptively unfair . . . where the accused is denied the 17 presence of counsel at ‘a critical stage,’” a phrase the Supreme Court used “to denote a step of a 18 criminal proceeding, such as arraignment, that held significant consequences for the accused.” Bell 19 v. Cone, 535 U.S. 685, 695-96 (2002) (footnote omitted). Prejudice is presumed when defense 20 counsel is absent during a “critical” stage in the proceeding. United States v. Cronic, 466 U.S. 648, 21 661 (1984). Here, as explained above, Craven argued in his state supreme court habeas petition that 22 he was “prejudiced” by trial counsel’s absence. Dkt. No. 73-5 at 12. Thus, this Court did not err in 23 concluding that the AEDPA standard of review applied upon finding that Craven exhausted his 24 Sixth Amendment claim before the California Supreme Court, which denied his claim summarily. 25 Specifically, in its May 30, 2025 Order, the Court denied Craven’s Sixth Amendment claim 26 stating: 27 Craven has not shown a violation of his Sixth Amendment right to counsel based on state court’s rejection of this claim was an objectively unreasonable application of 1 clearly established Supreme Court law for purposes of 28 U.S.C. § 2254(d)(1). Craven has failed to cite any United States Supreme Court case holding that a 2 defendant’s Sixth Amendment right to counsel is violated when a judge invites the jury to make a written request for the purposes of discussion with counsel, before 3 responding to a jury question. Moreover, Craven does not show that any presumed error “had substantial and injurious effect or influence in determining the jury’s 4 verdict.” Brecht [v. Abrahamson], 507 U.S. [619,] 637 [(1993)]. Accordingly, Craven is not entitled to the writ on this claim. 5 Dkt. No. 93 at 16. 6 The Court finds that Craven does not make a showing of mistake, inadvertence, surprise or 7 excusable neglect. See Fed. R. Civ. P. 60(b). He does not set forth any newly discovered evidence, 8 fraud, or any grounds for finding that the judgment is void or has been satisfied. Id. Nor does he 9 set forth any other reason justifying relief. Rather, Craven seems to argue that the decision of the 10 Court was wrong because the “trial judge answered a substantive question while knowing counsel 11 was absent,” when the judge stated as follows: “So, before you go on, why don’t you write these 12 down . . . since the attorney’s aren’t here, I don’t want to go too far down that road.” Dkt. No. 96 13 at 4-5. The Court first found that the judge’s answer to Juror 12’s question (“So if we’ve come to a 14 decision on the charges but we got hung on the enhancement, what would happen?”) reasonably 15 pertained to the firearm enhancements, especially since the trial court previously referred to them 16 as “enhancement allegations” in responding to another juror’s prior question about “the crime 17 related to having a firearm.” Dkt. No. 93 at 13 (citing 6RT 506, 509, 515 (emphasis added)). Then, 18 contrary to Craven’s argument above, the Court determined that the record showed that the judge 19 did not provide a substantive answer to Juror 12’s question: 20 Here, the record establishes that the trial court’s practice was to inform counsel of all 21 juror requests before drafting answers or ordering readback. 6RT 507-508, 515-516. Consistent with that practice, the trial court invited the jury to submit questions or 22 requests in writing, so that the parties and the trial court could discuss possible answers, as was previously done. 6RT 507-508, 515-516. 23 . . . . 24 The trial court did not provide nor refuse to provide a substantive answer to Juror 25 12’s hypothetical question. 6RT 515-516. Instead, the trial court invited the jury to confer in the jury deliberation room following readback then produce a written 26 request for the purposes of discussion with counsel and the trial court. See Dkt. No. 12-4 at 8. The record reflects that the jury decided to continue to deliberate following 27 readback rather than produce a written request. 6RT 515-516. No further written 516-519. Nor was there any further mention of a deadlock on the enhancements prior to the verdicts being returned. 6RT 516-519. 2 || Id. at 13-14. While Craven’s argument that he disagrees with the Court’s denial of his Sixth 3 || Amendment claim may be properly advanced on appeal, such an argument is not a basis for 4 || reconsideration. See Dunnahoo, 637 F.2d at 1341 (motions for reconsideration are not a substitute 5 for appeal or a means of attacking some perceived error of the court). Accordingly, Craven’s motion 6 || for reconsideration is DENIED. 7 8 CONCLUSION 9 For the reasons outlined above, the Court finds that Craven’s allegations present no grounds 10 || that warrant reconsideration of its May 30, 2025 Order Denying Habeas Relief for Remaining Sixth 1] Amendment Claim. His motion for reconsideration is DENIED. Dkt. Nos. 95, 96. 12 The Clerk of the Court shall substitute Andre Gonzales as the respondent pursuant to Rule 13 25(d) of the Federal Rules of Civil Procedure. 14 This Order terminates Docket Nos. 95 and 96. 3 15 IT IS SO ORDERED. a 16 || Dated: February 17, 2026 Site WU tee

SUSAN ILLSTON 18 United States District Judge 19 20 21 22 23 24 25 26 27 28