Nelson v. Robertson

Opinion

WILLIAM LLOYD NELSON, Case No. 19-cv-08057-EMC

Petitioner, ORDER GRANTING IN PART AND v. DENYING IN PART PETITIONER’S MOTION FOR RECONSIDERATION, J. M. ROBERTSON, AND REQUIRING AN ELECTION FROM PETITIONER Respondent. Docket No. 41 William Lloyd Nelson filed this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent moved to dismiss for, inter alia, failure to exhaust all claims, Docket No. 25; Mr. Nelson filed a “traverse” which the Court construed as an opposition to Respondent’s motion, Docket No. 30; 1 and Respondent filed a reply, Docket No. 34. The Court found that Mr. Nelson had filed a mixed petition of exhausted and unexhausted claims, granted in part and denied in part Respondent’s dismissal motion, and ordered Mr. Nelson to elect how to proceed. Docket No 38. Mr. Nelson filed a motion seeking reconsideration of the Court’s order, arguing that he in fact exhausted all claims. Docket No. 41 (“motion for reconsideration” or “Recon Motion”). For the reasons given below, the Court GRANTS in PART and DENIES in PART Mr. Nelson’s motion for reconsideration. The Court suspects, but is not sure, that Mr. Nelson would like a Rhines stay.

1 Mr. Nelson appears to believe that the Court struck or otherwise ignored his filing. See Recon Accordingly, the Court will give Mr. Nelson an additional opportunity to state his preference clearly and unequivocally. Mr. Nelson was convicted of attempting to murder a police officer engaged in the performance of that officer’s duty, specifically the attempt to serve documents on Mr. Nelson in a civil matter. See People v. Nelson, No. A144063, 2017 WL 3712440, at *1–2 (Cal. Ct. App. Aug. 29, 2017) (unpublished). On direct review, the California Court of Appeal affirmed Mr. Nelson’s conviction. See id. Mr. Nelson sought review in the California Supreme Court, which denied his request. See Docket No. 25-2. Mr. Nelson then collaterally attacked his conviction in state court. His state habeas petitions were denied by Humboldt County Superior Court, Docket Nos. 25-3, 25-4; the California Court of Appeal, Docket Nos. 25-5, 25-6; and the California Supreme Court, Docket No. 25-9. Mr. Nelson filed a federal habeas petition in this Court, see Docket No. 1, which was dismissed with leave to amend, see Docket No. 9. Petitioner filed an amended federal habeas petition. See Docket No. 14 (“Amended Petition”). The Court reviewed the Amended Petition pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, and identified the following claims and subclaims:

(1) “The prosecution deliberately interfered with [Mr. Nelson’s] Sixth Amendment right to counsel by conspiring with appointed defense counsel (‘Greg’) [a] to suppress the ballistics and forensic expert investigation, [b] to suppress material evidence, [c] to coerce [him] not to testify, and [d] to compromise his cross-examination to reduce the prosecution’s burden to prove its case beyond a reasonable doubt to no burden at all,” Docket No. 14 at 6; (2) the prosecutor, “in concert with defense counsel, knowingly elicited perjured and false testimony from State’s witnesses” during the preliminary hearing and trial, id. at 31; (3) “the prosecution team knowingly planted physical evidence at the crime scene and introduced it at” trial, id. at 37; (4) the prosecution failed to disclose material impeachment evidence during trial; (5) the prosecution “discarded or failed to preserve evidence they knew could be expected to play a significant [role in the] defense,” id. at 38; (6) trial counsel provided ineffective assistance by failing to file a timely motion to suppress the evidence obtained in violation of Mr. Nelson’s Fourth Amendment rights; (7) trial counsel’s performance “was so deficient that it amounted to a complete deprivation of meaningful opportunity to present a complete defense; (9) appellate counsel provided ineffective assistance of counsel; and (10) Mr. Nelson was deprived of a fair trial because the trial judge was biased. Docket No. 16 (“Screening Order”) at 2-3. Respondent moved to dismiss arguing, inter alia, that Mr. Nelson had failed to exhaust certain claims. Docket No. 25. The Court found that Mr. Nelson had failed to exhaust Claims 1d, 2, 4 as to some evidence, 6, 7(c), and 8 as to some aspects of Mr. Nelson’s defense. A motion for leave to file a motion for reconsideration may be filed prior to the entry of a final judgment in the case. Civ. L.R. 7-9(a). “The moving party must specifically show reasonable diligence in bringing the motion” and one of the following circumstances: (1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) The emergence of new material facts or a change of law occurring after the time of such order; or (3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. Civ. L.R. 7-9(b). A motion for reconsideration may be denied even where brought by a pro se habeas petitioner, if the litigant does not bear his burden. See Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (affirming district court’s denial of habeas petitioner’s motion for reconsideration where petitioner’s evidence of exhaustion was not “newly discovered” because petitioner was aware of evidence almost one year prior to the district court’s denial of the petition). Here, Mr. Nelson relies on Civil Local Rule 7-9(b)(3). Specifically, he argues that he fully exhausted Claims 1d, 2, 4, 6, 7(c), and 8. See generally, Recon Mot. Mr. Nelson thus must show a A. The Motion For Reconsideration Is Granted As To Claims 4(a), (b), (d)-(f), 6, and 8 With the additional information provided in Mr. Nelson’s motion for reconsideration, the Court was able to discern that Mr. Nelson raised Claims 6, 8, and parts of Claim 4 to the California Supreme Court, although these were raised as arguments supporting other grounds for relief rather than as separate grounds for relief. To exhaust, Mr. Nelson needed only to give the California Supreme Court a “full and fair opportunity to resolve” these claims. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). Moreover, the Ninth Circuit repeatedly has instructed district courts to give liberal construction to state-court habeas petitions filed by pro se petitioners. See Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (suggesting pro se petitions should be read more liberally than counseled petitions when evaluating whether a claim was exhausted); Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (“Peterson makes clear that, for the purposes of exhaustion, pro se petitions are held to a more lenient standard than counseled petitions.”); Kyzar v. Ryan, 780 F.3d 940, 947 (9th Cir. 2015) (same, citing Peterson, 319 F.3d at 1159, and Sanders, 342 F.3d at 999). When given the liberal construction due to pro se petitioners, it appears that Mr. Nelson made the California Supreme Court aware of the constitutional issues presented by Claims 4(a), (b), (d)-(f), 6, and 8, and gave that Court a sufficient opportunity to rectify those issues. See, e.g., Lounsbury v. Thompson, 374 F.3d 785, 789 (9th Cir. 2004) (petitioner who limited final state habeas appeal to procedural competency challenge made fair presentation to state courts of substantive competency claim when: (1) substantive competency claim closely related to, and concerned same trial court ruling as, concededly raised procedural competency claim; (2) under state supreme court rules, court could have reached claim because it was raised in court of appeals; (3) text of petition for review included claim; and (4) state supreme court could have discussed substantive competency claim, had it granted review, in course of discussing harmless error with regard to raised procedural competency claim). In Claim 4, Mr. Nelson contends that “the prosecution failed to disclose material impeachment evidence during trial,” Screening Order at 2, and specifically enumerated seven these seven sub-claims were raised in grounds 1, 5, 11, 14, 17, 24, 26 , and 37-39 of his petition to California Supreme Court. See Recon Mot. at 40-41. The Court has reviewed the grounds presented to the California Supreme Court and concludes that, with liberal construction, Mr. Nelson sufficiently exhausted Claims 4(a), (b), and (d)-(f), but did not exhaust Claim 4(c). • Claim 4(a) contends that the prosecution failed to disclose material impeachment evidence demonstrating attempted extortion by the prosecution. See Am. Pet. at 36. Liberally construed, an argument to this effect was made in support of ground 36 of the state petition, see Docket No. 25-11 at 104 (arguing the prosecution “knew or should have known” that a draft probation report was a “flagrant attempt to extort money from petitioner”),2 which otherwise argued that state officials conspired against Mr. Nelson by fabricating a probation report, see id. at 102 (summarizing ground raised to California Supreme Court). • Claim 4(b) contends that the prosecution failed to disclose material impeachment evidence of “safety statements” by two police officers Am. Pet. at 36. Liberally construed, an argument to this effect was made in support of ground 38, see Docket No. 25-11 at 116 (arguing that the prosecution conspired with defense counsel to suppress the fact that an officer “gave a safety statement”), which otherwise argued that the prosecution “withheld and fabricated evidence,” and specifically that the prosecution “staged an interview,” id. (summarizing ground raised to California Supreme Court). • Claim 4(c) contends that the prosecution failed to disclose material impeachment evidence of letters, a deed, an escrow document, and bank records, which would have showed the jury that Mr. Nelson had the legal right to be on his property. See Am. Pet. at 36. In his motion for reconsideration, Mr. Nelson makes no attempt to direct the Court to a location in the California Supreme Court petition where he

2 The petition presented to the California Supreme Court bears at least three different page argued that the prosecution suppressed bank records, escrow documents, letters, or a deed. See generally, Recon Mot. The Court also did not see a claim raised to the California Supreme Court concerning Mr. Nelson’s right to be on the property. See generally, Docket Nos. 25-9, 25-10, and 25-11. Even with liberal construction, Claim 4(c) is unexhausted. • Claim 4(d) contends that the prosecution failed to disclose material impeachment evidence regarding the number of shots fired by police officers, bullet holes caused by those shots, and the locations of the shells after the officers’ shots. Am. Pet. at 36. Liberally construed, an argument to this effect was made in support of ground 11, see Docket No. 25-10 at 147 (arguing the government failed to preserve evidence related to bullet holes and trajectories, and discarded shell casings), which otherwise argued the prosecution failed to collect and preserve evidence, see id. at 144 (summarizing ground raised to California Supreme Court); ground 14, see id. at 170 (arguing that photographs of bullet holes and “a slug” were suppressed), which otherwise argued Mr. Nelson was prevented from presenting a complete defense, see id. at 167 (summarizing ground raised to California Supreme Court); ground 17, see id. at 190 (arguing counsel lied about “the existence of [a] shell locations ‘diagram’”), which otherwise argued that trial counsel was ineffective because counsel lied during Marsden hearings, see id. at 189 (summarizing ground raised to California Supreme Court); and ground 26, see Docket No 25-11 at 45 (arguing that defense counsel was ineffective for failing to retrieve “slugs” from Mr. Nelson’s yard), which otherwise argued that “the perpetrators conspire[ed] under color of state law against petitioner to murder petitioner and plant evidence to cover up police misconduct,” id. at 39 (summarizing ground raised to California Supreme Court). • Claim 4(e) contends that the prosecution failed to disclose material impeachment evidence of audio recordings and transcripts of interviews. Am. Pet. at 37. see Docket No. 25-10 at 25 (arguing that interviews were not disclosed), which otherwise argued that the Humboldt County Superior Court abused its discretion in denying Mr. Nelson’s habeas petition, see id. at 6 (summarizing ground raised to California Supreme Court); and in ground 5, see id. at 105 (arguing that audio recordings of interviews were suppressed as a result of collusion), which otherwise argued that petitioner’s Sixth Amendment rights were violated by his trial counsel’s collusion with the prosecution, see id. at 98 (summarizing ground raised to California Supreme Court). • Claim 4(f) contends that the prosecution failed to disclose material impeachment evidence of conflicts between police reports. Am. Pet. at 37. Liberally construed, an argument to this effect was made in support of ground 37, see Docket No 25-11 at 114-15 (arguing that an officer made inconsistent statements to other officers), which otherwise argued that Mr. Nelson was deprived of effective assistance of counsel, see id. at 110 (summarizing ground raised to California Supreme Court); and ground 38, see id. at 116 (arguing the prosecution “staged an interview” to obtain a more favorable police report), which otherwise argued that the prosecution “withheld and fabricated evidence,” id. (summarizing ground raised to California Supreme Court). Thus, the Court concludes that if the state petition is given liberal construction, Claims 4(a), (b), and (d)-(f) are exhausted, but Claim 4(c) is unexhausted. In Claim 6, Mr. Nelson contends that trial counsel was ineffective because trial counsel failed to “file a timely suppression motion to suppress evidence obtained in violation of [Mr. Nelson’s] Fourth Amendment rights.” Am. Pet. at 37. Mr. Nelson contends that the basis for Claim 6 may be found in ground 13 of the petition to the California Supreme Court. Recon Mot. at 24. In ground 13, Mr. Nelson argued, inter alia, that his trial counsel’s “refusals to file a motion to suppress the prosecution’s fabricated evidence were likely the result of his collusion with the prosecution.” Docket No. 25-10 at 157. Although the more natural reading of ground 13 correct that the underlying argument of this ground is the same as Claim 6: that trial counsel failed to move to suppress evidence. See id. Liberally construing the state petition, the Court concludes that Claim 6 was exhausted. In Claim 8, Mr. Nelson contends that he “was deprived of any meaningful opportunity to present a complete defense,” because of “the misconduct of trial counsel and the prosecution.” Am. Pet. at 38. Mr. Nelson contends that Claim 8 was raised in ground 14 presented to the California Supreme Court. See Recon Mot. at 28. Ground 14 did indeed argue that Mr. Nelson was “denied ‘a meaningful opportunity to present a complete defense,’” Docket No. 25-10 at 167, although he attributed this deprivation specifically to collusion between his defense counsel and the prosecution rather than to general misconduct, see id. at 168. Liberally construing the state petition, the Court concludes that Claim 8 was exhausted. Although the Court reconsiders its earlier ruling as to Claims 4(a), 4(b), 4(d)-(f), 6, and 8, the Court notes that this reconsideration is done in the interests of justice, and not because Mr. Nelson has fulfilled his obligations under Civil Local Rule 7-9(b)(3). See Fed. R. Civ. P. 54(b) (“any order . . . that adjudicates fewer than all the claims . . . does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment”); see also School Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (noting that, inter alia, an order may be reconsidered if “the initial decision was manifestly unjust”). In his opposition to Respondent’s dismissal motion, Mr. Nelson did not raise any arguments, or point to any place in the record, which would have shown that these claims were exhausted. See Docket No. 30 at 11-12 (raising a general argument about the purpose of exhaustion). He thus did not carry his burden to show that he had exhausted state remedies. See Darr v. Burford, 339 U.S. 200, 218-19 (1950) (“petitioner has the burden . . . of showing that other available remedies have been exhausted”), overruled on other grounds, Fay v. Noia, 372 U.S. 391 (1963); Cartwright v. Cupp, 650 F.2d 1103, 1104 (9th Cir. 1981) (affirming summary judgment for respondent because, although petitioner alleged he had exhausted, “there is nothing in the record” to show it). Moreover, the verbose and disorganized nature of the 700-page petition filed before the California Supreme Court impeded the Court’s court. See, e.g., Recon Mot. at 40 (arguing that federal Claim 4 was raised in the California Supreme Court petition at grounds 1, 4, 5, 11, 24, 26, or “are intertwined throughout” that petition); see also Docket Nos. 25-9, 25-10, and 25-11 (700 pages filed with the California Supreme Court, including hundreds of pages of handwritten argument, interspersed with dozens of pages of transcripts and prison disciplinary records, and several dessert recipes). The Court would be fully justified were it to deny Mr. Nelson’s motion for reconsideration. See Ybarra, 656 F.3d at 998. Nonetheless, the motion is GRANTED IN PART in the interests of justice because Mr. Nelson is a pro se litigant pursuing his liberty.3 Considering the additional information provided by Mr. Nelson, giving the state petition the liberal construction due a pro se filing, and in the interests of justice, the Court reconsiders its earlier order and concludes that Claims 4(a), (b), (d)-(f), 6, and 8 are exhausted. B. The Motion For Reconsideration Is Denied As To Claims 1d, 2, 4(c), and 7(c) The Court sees no reason to reconsider its prior conclusion that Mr. Nelson failed to exhaust Claims 1d, 2, 4(c), and 7(c). Even with the extra argument presented in the motion for reconsideration, Mr. Nelson fails to show that these claims were exhausted. Mr. Nelson argues that federal Claim 1d was exhausted by ground 12 in his petition to the California Supreme Court. See Recon Mot. at 45. However, ground 12 argues:

Petitioner[’]s incarceration is unlawful because he was deprived of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Article I Section 7 of the California Constitution, to due process resulting from being convicted, based on an unreasonable determination of alleged evidence that was insufficient to support the essential elements of the alleged crime beyond a reasonable doubt. Docket No. 25-10 at 152. The ground raised in state court thus does not argue that a cross- examination was compromised as a result of a conspiracy between the prosecution and defense counsel. See id.; see also Screening Order at 2 3 Mr. Nelson would do well to remember this dispensation in future filings, before accusing the Court of “intentional delay/harassment tactics,” Recon Mot. at 13; “conscientiously setting [Mr. Nelson] up to fail,” id. at 26; “team[ing] up with the AG,” id. at 27; being “incompetent,” id. at 28; inflicting the “unreasonable burden” of a “steady flow of B.S. from this” Court upon Mr. Nelson, Mr. Nelson argues that Claim 2 was exhausted by ground 29 in his petition to the California Supreme Court. See Recon Mot. at 39. However, ground 29 argues:

Petitioner[’]s incarceration is unlawful because he was deprived of his Fifth, Sixth, and Fourteenth Amendment rights under the United States Constitution, and Article I, Sections 7, and 15 of the California Constitution, and P.C. 1473, to due process of law as a direct result of the prosecution[’]s deliberate, willful introduction of false evidence at petitioner[’]s June 9, 2014 preliminary hearing, and the erroneous suppression of patently exculpatory evidence. Docket No. 25-11 at 68. The ground raised to the California Supreme Court makes no mention of a conspiracy between the prosecution and defense counsel to elicit false testimony, nor does it make arguments about false testimony being used at trial. See id.; see also Screening Order at 2. As noted above, Mr. Nelson does not point to any place in the petition to the California Supreme Court which exhausted Claim 4(c). The Court therefore concludes this claim is unexhausted. Mr. Nelson argues that Claim 7(c) was exhausted by ground 23 in his petition to the California Supreme Court. See Recon Mot. at 43 (arguing that federal Claim 7(c) was exhausted in state ground 23). The ground raised to the California Supreme Court argues that counsel was ineffective at sentencing. See Docket 25-11 at 20. It does not argue that counsel was ineffective at the stage of moving for a new trial. See id.; see also Screening Order at 2-3. Because Mr. Nelson plainly has included unexhausted claims in his federal habeas petition, the Court’s DENIES the motion for reconsideration as to Claims 1d, 2, 4(c), and 7(c). At several points in his motion for reconsideration, Mr. Nelson suggests that he would like to be granted a Rhines stay so that he may exhaust his unexhausted claims. See Recon Mot. at 1, 44-47; see also Rhines v. Weber, 544 U.S. 269, 277 (2005) (allowing a court to stay a so-called “mixed petition” of exhausted and unexhausted claims, so that a petitioner may return to state court to fully exhaust). However, he also states that he would like this stay “[i]f, and only if, [he is] left with no other choice.” Recon Mot. at 44. Moreover, in the conclusion of his motion for reconsideration, Mr. Nelson argues that “this Court should dispense with requiring me to return to State Court to redundantly exhaust claims” because “[r]equiring me to return to State Court under genuine risk’s of impairing my ability altogather to to achieve resolution of my Constitutional claims in federal Court.” Id. at 48 (errors in original). As the Court explained in its prior order, Mr. Nelson has more than one choice; he has three. See Docket No. 38 at 15-16. He may choose whether he wants to – (1) dismiss the unexhausted claims and go forward in this action with only the exhausted claims, or (2) dismiss this action and return to state court to exhaust all claims before filing a new federal petition presenting all of his claims, or (3) file a motion for a stay of these proceedings while he exhausts his unexhausted claims in the California Supreme Court. Thus, if Mr. Nelson wishes to avoid any delay that may result from a return to state court, he may select option 1 and dismiss the unexhausted claims. Because it appears that Mr. Nelson misunderstood the options presented, the Court will allow Mr. Nelson an additional opportunity to elect how to proceed. The Court advises Mr. Nelson that his election should be brief and unambiguous. Mr. Nelsons motion for reconsideration is GRANTED as to Claims 4(a), (b), (d)-(f), 6, and 8. The motion for reconsideration is DENIED as to Claims 1d, 2, 4(c), and 7(c). No later than November 14, 2022, Mr. Nelson must file a notice in which he states whether he chooses to (1) dismiss this action and return to state court to exhaust all of his claims before returning to federal court to present all of his claims in a new petition, or (2) dismiss the unexhausted claims and go forward in this action with only Claims 1a-1c, 3, 4(a), (b), (d)-(f), 6, 7a-7b, and 8-10, or (3) move for a stay of these proceedings while he exhausts his state court remedies for the unexhausted claims. If Mr. Nelson chooses Option (1) or Option (2), his filing need not be a long document; it simply: “Petitioner chooses to proceed under option ___ provided in the Order Of Partial Dismissal And Requiring Choice By Petitioner.” Mr. Nelson would have to insert a number in place of the blank space to indicate which of the first two options he chooses. Alternatively, Mr. Nelson may circle his choice on this page, sign next to that choice, and return this page to the Court. If Mr. Nelson chooses Option (3), then no later than November 14, 2022, Mr. Nelson must file a motion for a stay in which he explains why he failed to exhaust his unexhausted claims in state court before presenting them to this Court, that his claims are not meritless, and that he is not intentionally delaying resolution of his constitutional claims. If Mr. Nelson does not choose one of the three options by the deadline, the Court will assume that Mr. Nelson has elected option (2) and will dismiss this action so that Mr. Nelson may exhaust his claims in state court. No additional motions for reconsideration by Mr. Nelson will be considered. This order disposes of Docket No. 41. Dated: September 30, 2022 ______________________________________ EDWARD M. CHEN United States District Judge