1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. KANE, Case No.: 19cv1354-WQH-MDD
12 Petitioner, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 JOSIE GASTELO, Warden, RE: MOTION TO DISMISS 15 Respondent. PETITION FOR WRIT OF HABEAS CORPUS 16
17 [ECF No. 7] 18 This Report and Recommendation is submitted to United States 19 District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil 20 Local Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 For the reasons set forth herein, the Court RECOMMENDS 23 Respondent’s motion to dismiss be DENIED. The Court finds that the 24 Petition contains both exhausted and unexhausted claims and therefore 25 RECOMMENDS that Petitioner be advised about the options available to 26 him with respect to his mixed petition. If Petitioner fails to pursue either 1 unexhausted grounds for relief be DISMISSED and that the Court proceed 2 solely as to Petitioner’s exhausted ground for relief. 3 I. PROCEDURAL BACKGROUND 4 A. Federal Proceedings 5 On July 16, 2019, Michael D. Kane (“Petitioner”), a state prisoner 6 proceeding pro se and in forma pauperis, constructively filed a Petition for 7 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF Nos. 1, 4). 8 Petitioner did not set forth specific claims in the instant federal petition; 9 rather he appended his original opening brief filed in the California Court of 10 Appeal and the appellate court’s opinion which related to a revised opening 11 brief. (See ECF No. 1). Construing his petition liberally, Petitioner raises 12 four grounds for relief: (1) the trial court prejudicially erred by failing to 13 instruct the jury that the prosecution must have proved Petitioner displayed 14 a deadly and dangerous weapon in a menacing manner during the robbery of 15 the victim; (2) the trial court abused its discretion and violated Petitioner’s 16 due process rights by failing to consider the option of striking one of 17 Petitioner’s prior strike convictions; (3) the trial court errantly stayed, rather 18 than struck, Petitioner’s one-year term on the prison-prior enhancement; and 19 (4) the trial court’s abstract of judgment should be corrected to reflect the 20 actual judgment imposed.1 (See ECF No. 1 at 5-10, 62-66). 21
22 1 Respondent contends that Petitioner only raises the first, third, and fourth grounds for 23 relief in his Petition. (ECF No. 7-1 (“MTD”) at 2). However, Petitioner clearly intended to 24 raise four grounds for relief. (ECF No. 1 at 5-10). While Petitioner did not attach the revised opening brief raising the second ground to his Petition, he did attach the 25 California Court of Appeal’s opinion addressing it. (Id. at 62-66). Further, Respondent is aware of the second ground for relief because Respondent references it in the instant 26 motion. (See MTD at 2 (citing Lodgment 6)). Because the Court “must construe pro se habeas filings liberally,” the Court finds that Petitioner has asserted four grounds for 1 On October 18, 2019, Josie Gastelo (“Respondent”) moved to dismiss the 2 Petition on the grounds that the Petition contains unexhausted and 3 procedurally defaulted claims. (ECF No. 7-1 (“MTD”)). To date, Petitioner 4 has not filed an opposition to Respondent’s motion. (See Docket; see also ECF 5 No. 5 (ordering Petitioner to file any opposition to Respondent’s motion to 6 dismiss on or before January 2, 2020)). 7 B. State Proceedings 8 On April 6, 2017, Petitioner was found guilty by a jury for murder in 9 the first degree (Cal. Penal Code § 187(a)) and robbery (Cal. Penal Code § 10 211). (Lodgment 1 at 1209; Lodgment 2 at 141-42, 256). The jury further 11 found true the allegation that Petitioner personally used a deadly and 12 dangerous weapon (Cal. Penal Code § 12022(b)(1)). (Lodgment 1 at 1209; 13 Lodgment 2 at 141-42, 256). On June 6, 2017, Petitioner was sentenced to 14 seventy-five years to life, plus an additional eleven years. (Lodgment 1 at 15 2515-16; Lodgment 2 at 293-94). 16 Petitioner filed an appeal with the California Court of Appeal, filing an 17 amended opening brief on February 7, 2018, listing the grounds for relief 18 raised in the instant Petition. (Lodgment 4; Lodgment 6). On June 1, 2018, 19 the California Court of Appeal found that the trial court should have 20 stricken, rather than stayed, the prison prior term enhancement and that the 21 clerical errors in the abstract of judgment should be corrected. (Lodgment 9 22 at 3). Accordingly, the appellate court ordered the judgment be amended to 23 strike the prior prison term enhancement and that the abstract of judgment 24 be corrected to address certain clerical issues. (Id.). The appellate court 25 affirmed the judgment in all other respects. (Id.). 26 On July 11, 2018, Petitioner filed a Petition for Review with the 1 its discretion and violated Petitioner’s due process rights by failing to 2 consider the option of striking one of Petitioner’s prior strike convictions. 3 (Lodgment 10). On August 15, 2018, the California Supreme Court denied 4 the petition for review without comment. (Lodgment 11). 5 II. LEGAL STANDARD 6 A federal court may not consider a petition for habeas corpus unless the 7 petitioner first has presented his claims to the state courts, thereby 8 exhausting them. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 9 (1982). The exhaustion requirement is founded on federal-state comity, as 10 only when the state court has been presented with the claim may it “pass 11 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 12 Henry, 513 U.S. 364, 365 (1995) (internal quotation marks and citations 13 omitted). Exhaustion of a habeas petitioner’s federal claims requires that 14 they have been fairly presented in each appropriate state court, including a 15 state supreme court with powers of discretionary review. Baldwin v. Reese, 16 541 U.S. 27, 29 (2004). In California, this generally entails direct or 17 collateral presentation to both the lower courts of appeal and the state 18 supreme court, though presentation to the state supreme court alone may 19 suffice. Ross v. Craven, 478 F.2d 240, 240-41 (9th Cir. 1973). To exhaust 20 one’s claims, the petitioner must also “alert[] [the state] court to the federal 21 nature of the claim.” Baldwin, 541 U.S. at 29. A petitioner may do so by 22 citing the source of federal law upon which he relies, or by labeling the claim 23 as “federal.” Id. at 32. 24 Where none of a petitioner’s claims have been presented to the highest 25 state court as required by the exhaustion doctrine, the Court must dismiss 26 the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Where 1 the discretion to hold a mixed petition in abeyance pending exhaustion of the 2 unexhausted claims.” Id. 3 III. DISCUSSION 4 Respondent contends Petitioner’s claims are unexhausted. (MTD at 3- 5 4). Petitioner raised four arguments in his direct appeal to the California 6 Court of Appeal. (Lodgment 6). However, he raised only one argument in his 7 Petition for Review with the California Supreme Court. (Lodgment 10).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL D. KANE, Case No.: 19cv1354-WQH-MDD
12 Petitioner, REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 14 JOSIE GASTELO, Warden, RE: MOTION TO DISMISS 15 Respondent. PETITION FOR WRIT OF HABEAS CORPUS 16
17 [ECF No. 7] 18 This Report and Recommendation is submitted to United States 19 District Judge William Q. Hayes pursuant to 28 U.S.C. § 636(b)(1) and Civil 20 Local Rule 72.1(c) of the United States District Court for the Southern 21 District of California. 22 For the reasons set forth herein, the Court RECOMMENDS 23 Respondent’s motion to dismiss be DENIED. The Court finds that the 24 Petition contains both exhausted and unexhausted claims and therefore 25 RECOMMENDS that Petitioner be advised about the options available to 26 him with respect to his mixed petition. If Petitioner fails to pursue either 1 unexhausted grounds for relief be DISMISSED and that the Court proceed 2 solely as to Petitioner’s exhausted ground for relief. 3 I. PROCEDURAL BACKGROUND 4 A. Federal Proceedings 5 On July 16, 2019, Michael D. Kane (“Petitioner”), a state prisoner 6 proceeding pro se and in forma pauperis, constructively filed a Petition for 7 Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF Nos. 1, 4). 8 Petitioner did not set forth specific claims in the instant federal petition; 9 rather he appended his original opening brief filed in the California Court of 10 Appeal and the appellate court’s opinion which related to a revised opening 11 brief. (See ECF No. 1). Construing his petition liberally, Petitioner raises 12 four grounds for relief: (1) the trial court prejudicially erred by failing to 13 instruct the jury that the prosecution must have proved Petitioner displayed 14 a deadly and dangerous weapon in a menacing manner during the robbery of 15 the victim; (2) the trial court abused its discretion and violated Petitioner’s 16 due process rights by failing to consider the option of striking one of 17 Petitioner’s prior strike convictions; (3) the trial court errantly stayed, rather 18 than struck, Petitioner’s one-year term on the prison-prior enhancement; and 19 (4) the trial court’s abstract of judgment should be corrected to reflect the 20 actual judgment imposed.1 (See ECF No. 1 at 5-10, 62-66). 21
22 1 Respondent contends that Petitioner only raises the first, third, and fourth grounds for 23 relief in his Petition. (ECF No. 7-1 (“MTD”) at 2). However, Petitioner clearly intended to 24 raise four grounds for relief. (ECF No. 1 at 5-10). While Petitioner did not attach the revised opening brief raising the second ground to his Petition, he did attach the 25 California Court of Appeal’s opinion addressing it. (Id. at 62-66). Further, Respondent is aware of the second ground for relief because Respondent references it in the instant 26 motion. (See MTD at 2 (citing Lodgment 6)). Because the Court “must construe pro se habeas filings liberally,” the Court finds that Petitioner has asserted four grounds for 1 On October 18, 2019, Josie Gastelo (“Respondent”) moved to dismiss the 2 Petition on the grounds that the Petition contains unexhausted and 3 procedurally defaulted claims. (ECF No. 7-1 (“MTD”)). To date, Petitioner 4 has not filed an opposition to Respondent’s motion. (See Docket; see also ECF 5 No. 5 (ordering Petitioner to file any opposition to Respondent’s motion to 6 dismiss on or before January 2, 2020)). 7 B. State Proceedings 8 On April 6, 2017, Petitioner was found guilty by a jury for murder in 9 the first degree (Cal. Penal Code § 187(a)) and robbery (Cal. Penal Code § 10 211). (Lodgment 1 at 1209; Lodgment 2 at 141-42, 256). The jury further 11 found true the allegation that Petitioner personally used a deadly and 12 dangerous weapon (Cal. Penal Code § 12022(b)(1)). (Lodgment 1 at 1209; 13 Lodgment 2 at 141-42, 256). On June 6, 2017, Petitioner was sentenced to 14 seventy-five years to life, plus an additional eleven years. (Lodgment 1 at 15 2515-16; Lodgment 2 at 293-94). 16 Petitioner filed an appeal with the California Court of Appeal, filing an 17 amended opening brief on February 7, 2018, listing the grounds for relief 18 raised in the instant Petition. (Lodgment 4; Lodgment 6). On June 1, 2018, 19 the California Court of Appeal found that the trial court should have 20 stricken, rather than stayed, the prison prior term enhancement and that the 21 clerical errors in the abstract of judgment should be corrected. (Lodgment 9 22 at 3). Accordingly, the appellate court ordered the judgment be amended to 23 strike the prior prison term enhancement and that the abstract of judgment 24 be corrected to address certain clerical issues. (Id.). The appellate court 25 affirmed the judgment in all other respects. (Id.). 26 On July 11, 2018, Petitioner filed a Petition for Review with the 1 its discretion and violated Petitioner’s due process rights by failing to 2 consider the option of striking one of Petitioner’s prior strike convictions. 3 (Lodgment 10). On August 15, 2018, the California Supreme Court denied 4 the petition for review without comment. (Lodgment 11). 5 II. LEGAL STANDARD 6 A federal court may not consider a petition for habeas corpus unless the 7 petitioner first has presented his claims to the state courts, thereby 8 exhausting them. 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 522 9 (1982). The exhaustion requirement is founded on federal-state comity, as 10 only when the state court has been presented with the claim may it “pass 11 upon and correct alleged violations of its prisoners’ federal rights.” Duncan v. 12 Henry, 513 U.S. 364, 365 (1995) (internal quotation marks and citations 13 omitted). Exhaustion of a habeas petitioner’s federal claims requires that 14 they have been fairly presented in each appropriate state court, including a 15 state supreme court with powers of discretionary review. Baldwin v. Reese, 16 541 U.S. 27, 29 (2004). In California, this generally entails direct or 17 collateral presentation to both the lower courts of appeal and the state 18 supreme court, though presentation to the state supreme court alone may 19 suffice. Ross v. Craven, 478 F.2d 240, 240-41 (9th Cir. 1973). To exhaust 20 one’s claims, the petitioner must also “alert[] [the state] court to the federal 21 nature of the claim.” Baldwin, 541 U.S. at 29. A petitioner may do so by 22 citing the source of federal law upon which he relies, or by labeling the claim 23 as “federal.” Id. at 32. 24 Where none of a petitioner’s claims have been presented to the highest 25 state court as required by the exhaustion doctrine, the Court must dismiss 26 the petition. Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Where 1 the discretion to hold a mixed petition in abeyance pending exhaustion of the 2 unexhausted claims.” Id. 3 III. DISCUSSION 4 Respondent contends Petitioner’s claims are unexhausted. (MTD at 3- 5 4). Petitioner raised four arguments in his direct appeal to the California 6 Court of Appeal. (Lodgment 6). However, he raised only one argument in his 7 Petition for Review with the California Supreme Court. (Lodgment 10). In 8 his Petition for Review he argued that “[i]t is simply not clear from [the] 9 record that the trial court recognized its discretion to strike just one of 10 [Petitioner’s] strike-priors and expressly declined to do so.” (Id. at 24). 11 Because Petitioner raised this ground for relief on direct appeal to the 12 California Court of Appeal and the California Supreme Court, he has 13 exhausted his second ground for relief. Petitioner did not raise any of his 14 other grounds for relief on direct appeal to the California Supreme Court. 15 (See Lodgment 6; Lodgment 10). Additionally, Petitioner has not sought 16 collateral review of his claims by way of a state habeas corpus petition. (See 17 generally, Lodgments; see also ECF No. 1 at 3). Therefore, Petitioner did not 18 exhaust his first, third, or fourth grounds for relief. Accordingly, the instant 19 Petition is mixed, meaning it contains both exhausted and unexhausted 20 claims.2 21
22 2 According to Respondent, the first, third, and fourth grounds for relief are unexhausted 23 and procedurally defaulted because Petitioner no longer has an available state court 24 remedy on direct appeal with which to exhaust his claims. (MTD at 4). While Respondent is correct that Petitioner no longer has a state remedy on direct appeal for any of his 25 unexhausted grounds for relief, it is possible that Petitioner could present and exhaust an appropriate federal claim in the state courts. See In re Reno, 55 Cal. 4th 428, 460 (2012) 26 (“The United States Supreme Court recently, and accurately, described the law applicable to habeas corpus petitions in California: “While most States set determinate time limits 1 A mixed petition is subject to dismissal absent a stay. See Rose, 455 2 U.S. at 518. Moreover, pursuant to the Anti-Terrorism and Effective Death 3 Penalty Act (“AEDPA”), all federal habeas petitions are subject to a one-year 4 statute of limitations, and claims not exhausted and presented to the federal 5 court within the one-year period are forfeited. 28 U.S.C. § 2244(d). As such, 6 if a petitioner presents a mixed petition, the petitioner may seek to stay the 7 exhausted claims while he pursues the unexhausted claims in state court. 8 Rhines v. Weber, 544 U.S. 269, 276-78 (2005). A petition may be stayed under 9 either Rhines, or under Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 10 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th 11 Cir. 2007). See King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009). 12 Pursuant to Rhines, a stay is available only in the limited 13 circumstances where a petitioner shows that: (1) “the petitioner had good 14 cause for his failure to exhaust,” (2) “his unexhausted claims are potentially 15 meritorious,” and (3) “there is no indication that the petitioner engaged in 16 intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. When a 17 petitioner satisfies these three requirements, “it likely would be an abuse of 18 discretion for a district court to deny a stay.” Id. However, even if a 19 petitioner had good cause for his failure to exhaust, “the district court would 20 abuse its discretion if it were to grant him a stay when his unexhausted 21 claims are plainly meritless.” Id. at 277. 22 Under Kelly, a stay requires: (1) that the petitioner file an amended 23 petition deleting his unexhausted claims; (2) that the district court “stay[] 24 25 26 Instead, California courts ‘appl[y] a general “reasonableness” standard’ to judge whether a habeas petition is timely filed.”) (quoting Carey v. Saffold, 536 U.S. 214, 222 (2002)). 1 and hold[] in abeyance the amended, fully exhausted petition, allowing the 2 petitioner the opportunity to proceed to state court to exhaust the deleted 3 claims”; and (3) that the petitioner subsequently amend his federal habeas 4 petition “and re-attaches the newly-exhausted claims to the original petition.” 5 King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). However, the 6 petitioner may only amend his newly-exhausted claims back into his federal 7 petition if the claims are timely under the AEDPA or “relate back” to the 8 exhausted claims in the pending petition. Id. at 1140-43. 9 As set forth above, the Court finds that the Petition contains one 10 exhausted ground for relief (ground two) and three unexhausted grounds for 11 relief (grounds one, three, and four). Because the Petition contains both 12 exhausted and unexhausted claims, the Petition is subject to dismissal 13 absent a stay. Rose, 455 U.S. at 518; King, 564 F.3d at 1138-39. Petitioner 14 has not filed a motion for stay. (See Docket). Accordingly, the Court 15 RECOMMENDS that Petitioner be sent an order specifying his options with 16 respect to the mixed Petition. If Petitioner seeks to choose the Rhines 17 approach, he must file a motion for stay and address the three Rhines 18 conditions set forth above. If Petitioner seeks to stay this action under Kelly, 19 Petitioner must submit an amended petition asserting only his exhausted 20 claim for relief and must also file a motion for stay. If Petitioner does not 21 elect one of the identified options, then the Court RECOMMENDS that the 22 first, third, and fourth grounds for relief be DISMISSED and the Court 23 proceed solely as to Petitioner’s exhausted ground for relief (ground two). 24 IV. CONCLUSION 25 For the foregoing reasons, IT IS HEREBY RECOMMENDED that the 26 District Judge issue an Order: (1) approving and adopting this Report and 1 ||the Petition contains exhausted and unexhausted claims, (4) issuing a Notice 9 Regarding Possible Partial Dismissal of Petition for Failure to Exhaust State 3 || Court Remedies, and (5) DISMISSING Petitioner’s first, third, and fourth 4 || grounds for relief if he does not move for a stay under Rhines or Kelly. 5 IT IS ORDERED that no later than February 24, 2020, any party to 6 || this action may file written objections with the Court and serve a copy on all 7 ||parties. The document should be captioned “Objections to Report and 8 || Recommendation.” 9 IT IS FURTHER ORDERED that any reply to the objections shall be 10 || filed with the Court and served on all parties no later than March 9, 2020. 11 parties are advised that failure to file objections within the specified time 12 ||may waive the right to raise those objections on appeal of the Court’s order. 13 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 14 IT IS SO ORDERED. ° Dated: January 31, 2020 Mitel [> Hon. Mitchell D. Dembin 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27