Quillar v. Hill

• Court: District Court, S.D. California
• Decided: September 4, 2025
• Docket: 3:25-cv-00253
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEE QUILLAR, Case No. 25cv0253-BTM (LR)

12 Petitioner, ORDER: 13 v. (1) DENYING RESPONDENT’S 14 JAMES HILL, Warden, MOTION TO DISMISS 15 Respondent. PETITION FOR A WRIT OF HABEAS CORPUS; 16

17 (2) DENYING PETITIONER’S MOTIONS FOR TRANSFER, 18 FOR RELEASE FROM 19 CUSTODY AND FOR INJUNCTIVE RELIEF; AND 20

21 (3) ISSUING STAY 22 23 INTRODUCTION 24 Petitioner Lee Quillar is a state prisoner proceeding pro se with a Petition for a Writ 25 of Habeas Corpus pursuant to 28 U.S.C. § 2254. ECF No. 1. Petitioner challenges a 1997 26 San Diego County Superior Court conviction and sentence for which a new judgment was 27 entered upon resentencing in 2024. See id. The Petition is accompanied by a Motion for 28 transfer to another county and a Motion for release from custody. ECF Nos. 2-3. 1 Respondent has filed a Motion to Dismiss the Petition. ECF No. 10. Respondent 2 contends the Petition is premature because Petitioner’s appeal of his new judgment is still 3 pending in state court and the judgment is not yet final, rendering any claims arising from 4 his resentencing proceedings unexhausted. ECF No. 10-1 at 1-4. Respondent argues that 5 the motions accompanying the Petition should be denied because Petitioner has not shown 6 special circumstances allowing for his release from custody prior to the resolution of the 7 Petition, and the motion to transfer the resentencing proceeding to another county is moot 8 since it is no longer pending in the San Diego County Superior Court. Id. at 4-5. 9 Petitioner has filed an Opposition arguing it is not necessary to wait for his appeal 10 to resolve because he is taking advantage of the new judgment to re-adjudicate old claims 11 for which he has already exhausted state court remedies, and alternately that any failure to 12 exhaust can be excused. ECF No. 11 at 1-9. He has also filed a Request for Judicial Notice 13 of state court documents, ECF No. 12, a Request for Judicial Notice of his own declaration 14 along with the declaration, ECF Nos. 13-14, two identical Motions seeking a temporary 15 restraining order and a preliminary injunction, ECF Nos. 15-16, and a supplemental Motion 16 seeking a temporary restraining order and preliminary injunction, ECF No. 17. 17 FACTUAL AND PROCEDURAL BACKGROUND 18 In 1997, a jury convicted Petitioner of causing a fire in an inhabited structure, arson 19 of the property of another, assault with a deadly weapon or by force likely to produce great 20 bodily injury, and false imprisonment by violence involving the personal use of a deadly 21 weapon, a knife. People v. Quillar, 2022 WL 2185824, at *1 (Cal. App. Ct. June 17, 2022). 22 The trial court found Petitioner had prior convictions for grand theft and assault with a 23 deadly weapon in case number CR75335, and voluntary manslaughter and residential 24 burglary in case number CR107662. Id. Petitioner was sentenced to thirty-six years to life 25 in state prison, consisting of a base term of twenty-five years to life on the assault with a 26 deadly weapon count, a one-year enhancement for use of a knife, and two five-year 27 enhancements for his prior convictions, with the sentences on the remaining counts and 28 enhancements either concurrent or stayed. Id. The state appellate court affirmed the 1 conviction and sentence in 1999, and the Supreme Court denied review in 2000. Id. 2 In 2001, Petitioner sought federal habeas relief in this Court pursuant to 28 U.S.C. 3 § 2254, which was denied in 2003. See Quillar v. California, No. 01cv968, 2010 WL 4 5088808 (S.D. Cal. Dec. 7, 2010). The United States Court of Appeals for the Ninth Circuit 5 affirmed in 2004. Quillar v. California, 116 Fed. Appx. 793 (2004). 6 In 2017, Petitioner sought resentencing in the state trial court pursuant to Proposition 7 36, codified at California Penal Code § 1170.126, et seq., which allowed eligible inmates 8 to request resentencing by filing a petition with the Superior Court before November 7, 9 2014. See People v. Quillar, 2019 WL 638124, at *1 (Cal. App. Ct. Nov. 27, 2019). The 10 trial court denied relief as untimely, and the appellate court affirmed in 2019. Id. at *1-4. 11 In 2021, Petitioner sought resentencing in the state trial court pursuant to Proposition 12 47, codified at California Penal Code § 1170.18, seeking to have his prior conviction for

13 felony grand theft in CR75335 reduced to a misdemeanor. Quillar, 2022 WL 2185824, at 14 *1. The trial court denied the motion on the basis that Petitioner was required to seek that 15 relief in CR75335. Id. Petitioner indicated for the first time on appeal that his grand theft 16 conviction had been reduced to a misdemeanor in 2018. Id. The appellate court affirmed 17 the denial on the basis that although a person who succeeds in reducing or invalidating a 18 prior conviction used to enhance a sentence may seek resentencing under Proposition 47, 19 that provision only applied to criminal judgments which were not final at the time it became 20 effective in 2014, and Petitioner’s conviction was final in 2000. Id. at *2. 21 On January 29, 2024, Petitioner filed an application in the Ninth Circuit seeking 22 permission to file the instant federal Petition as a second or successive petition. ECF No. 23 1 at 1. While that application was pending in the Ninth Circuit, the state trial court 24 resentenced Petitioner on August 22, 2024, pursuant to California Penal Code § 1172.75. 25 ECF No. 10-1 at 7-9. The trial court struck the prison prior enhancements and let stand the 26 sentence of twenty-five years to life on the assault with a deadly weapon count, ordered 27 the sentences on the other counts to run concurrently, and entered a new judgment of 28 conviction. Id. Petitioner filed a notice of appeal on October 23, 2024. Id. at 10. 1 On February 4, 2025, the Ninth Circuit transferred the Petition to this Court because 2 Petitioner was now challenging a new judgment of conviction and no longer needed 3 permission to file a second or successive petition. ECF No. 1; see also Magwood v. 4 Patterson, 561 U.S. 320, 341-42 (2010) (a federal petition is not second or successive if 5 there has been a “new judgment intervening between the two habeas petitions.”) On May 6 16, 2025, Petitioner’s appointed counsel filed an opening brief in the state appellate court 7 stating there were no arguable issues. See D085131, https://supreme.courts.ca.gov/case- 8 information/docket-search (last visited August 15, 2025). On July 14, 2025, Petitioner’s 9 motion to represent himself on appeal was denied and the time for him to file a pro se 10 supplemental appellate brief was extended 30 days. Id. 11 ANALYSIS 12 Respondent seeks dismissal of the Petition on the basis that the judgment challenged 13 is not yet final because Petitioner’s appeal of his new judgment remains pending in state 14 court. ECF No. 10-1 at 2-3. Petitioner opposes the motion, arguing that his claims have 15 already been raised and denied in state court and are therefore fully exhausted, and that the 16 entry of a new state court judgment “allows him to reach back and adjudicate matters that 17 were completely incapable of being adequately developed as the claims were not ripe.” 18 ECF No. 11 at 1-9. He alternately argues that any failure to exhaust can be excused through 19 gateway mechanisms or the state court’s history of denying him due process. Id. at 1-2. 20 Petitioner claims in his federal Petition here that: (1) trial counsel Elizabeth Barranco 21 rendered ineffective assistance by failing to interview or call any of Petitioner’s defense 22 witnesses at trial and using Petitioner’s case to embezzle funds, and was later disbarred for 23 similar fraudulent activities; (2) he was illegally sentenced to a term of life imprisonment 24 under the three strikes law based on a prior conviction in CR75335 of battery on a peace 25 officer causing great bodily injury because the state court record, which he only discovered 26 during his appeal of his earlier resentencing proceedings, shows he is actually innocent of 27 that prior conviction; (3) he was fraudulently stripped of his right to trial counsel when 28 (a) the trial court dismissed appointed attorney Tarantino and forced Petitioner into self- 1 representation without his knowledge, consent or ability to prevent it, and entered a 2 fraudulent minute order falsely reflecting he was present and had requested self- 3 representation, (b) attorney Barranco falsely appeared as co-counsel while Petitioner was 4 proceeding pro se knowing Petitioner was not competent to represent himself and had not 5 requested to do so, and (c) attorney Barranco allowed the court to file a fraudulent minute 6 order appointing her as his trial counsel and falsely claiming petitioner attended that 7 hearing and requested her appointment; and (4) the state courts erred in denying those 8 claims during his resentencing proceedings. ECF No. 1 at 8-14, 23-27. Petitioner states in 9 the federal Petition that he exhausted those claims in a state supreme court habeas petition 10 in case S274133 and a state supreme court petition for writ of error coram nobis in case 11 S278477.1 Id. at 23-26. He argues in his opposition that he also presented those claims to 12 the state courts in prior resentencing proceedings, and requests the Court take judicial 13 notice of those filings. See ECF No. 12 at 3-4. The Court will consider the exhibits 14 attached to Petitioner’s request for judicial notice, ECF No. 12, and his declaration and 15 request for judicial notice of his declaration, ECF Nos. 13-14, as exhibits to his opposition 16 to the motion to dismiss. His requests for judicial notice of those documents, ECF Nos. 17 12-13, are therefore moot. 18 The record presently before the Court is not developed as to what claims Petitioner 19 is raising in his pending appeal or what claims he will ultimately present to the state 20 supreme court should the state appellate court deny relief. Respondent contends that 21 because at least one of the claims in the federal Petition challenges Petitioner’s sentence as 22 having been improperly enhanced, that claim will not be exhausted until the appeal of the 23 resentencing order is complete. ECF No. 10-1 at 4. 24

25 26 1 The habeas petition was denied on January 11, 2023, as untimely and successive, and the coram nobis petition was transferred to the state appellate court on May 9, 2023. See 27 S278477 and S274133, https://supreme.courts.ca.gov/case-information/docket-search (last 28 visited August 15, 2025). 1 Irrespective of whether Petitioner has presented the claims raised in the instant 2 federal Petition to the state courts, the Ninth Circuit has stated that when “an appeal of a 3 state criminal conviction is pending, a would-be habeas corpus petitioner must await the 4 outcome of his appeal before his state remedies are exhausted, even where the issue to be 5 challenged in the writ of habeas corpus has been finally settled in the state courts.” 6 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983) (emphasis added); see also 7 Henderson v. Johnson, 710 F.3d 872, 874 (9th Cir. 2013) (“Sherwood stands for the 8 proposition that a district court may not adjudicate a federal habeas petition while a 9 petitioner’s direct state appeal is pending.”) Thus, even if Petitioner has already exhausted 10 his state court remedies as to the claims raised in his federal Petition, he must await the 11 outcome of the state appellate proceedings arising from his new state criminal judgment 12 before this Court can adjudicate his federal claims. 13 That does not, however, mean the instant Petition must be dismissed at this stage of 14 the proceedings. A federal district court has discretion to stay habeas proceedings pending 15 resolution of an appeal of state resentencing proceedings. See Duke v. Gastelo, 64 F.4th 16 1088, 1098 (9th Cir. 2023) (first citing Rhines v. Weber, 544 U.S. 269, 278 (2005); and 17 then Kelly v. Small, 315 F.3d 1063, 1070 (9th Cir. 2003)); see also Henderson, 710 F.3d at 18 874 (“Sherwood does not undermine the important precedent requiring district courts . . . 19 to consider a petitioner’s eligibility for a stay under Rhines [and Kelly].”) 20 In determining whether to issue a Rhines/Kelly stay the Court looks to whether 21 Petitioner has been diligently proceeding in state court, which he apparently has, and 22 whether he would risk losing the ability to raise his federal claims. See Duke, 64 F.4th 23 1099 (citing Kelly, 315 F.3d at 1070) (“[T]here is a growing consensus that a stay is 24 required when dismissal could jeopardize the petitioner’s ability to obtain federal review.”) 25 The Duke court found that the lack of controlling authority as to whether the federal one- 26 year statute of limitations is tolled during a state appeal of resentencing proceedings made 27 it uncertain whether the petitioner risked the loss of the federal claims not raised in that 28 appeal, counseling in favor of a stay. Id. In this case, which has been pending about seven 1 months, staying rather than dismissing the action would avoid requiring Petitioner to refile 2 an identical federal petition after completion of his state appeal, which is progressing 3 expeditiously. Respondent’s contention that the federal Petition contains an unexhausted 4 claim also supports a stay rather than dismissal. Henderson, 710 F.3d at 874; Kelly, 315 5 F.3d at 1070. 6 The Court therefore finds that the interests of judicial efficiency and economy 7 counsel in favor of staying this action pending the outcome of the ongoing state appellate 8 proceedings. Accordingly, Respondent’s Motion to Dismiss is DENIED and this action is 9 STAYED pending resolution of Petitioner’s appeal of the state trial court’s August 22, 10 2024, resentencing order and judgment. 11 PETITIONER’S MOTIONS 12 Petitioner seeks release from custody pending the outcome of his federal habeas 13 proceedings, arguing that the claims raised in his federal Petition require his release, and 14 that the trial court has been on notice of those claims since 2022, but has failed to order his 15 release from custody. ECF No. 3 at 2-3. The Ninth Circuit has “not yet decided whether 16 district courts have the authority to grant bail pending resolution of a habeas petition.” 17 United States v. McCandless, 841 F.3d 819, 822 (9th Cir. 2016) (per curiam); see also In 18 re Roe, 257 F.3d 1077, 1080 n.2 (9th Cir. 2001) (declining to resolve the issue but 19 expressing doubt as to whether the appliable rules “contemplate release on bail pending an 20 initial decision in district court.”) To the extent the Court has authority to order Petitioner’s 21 release pending the outcome of these proceedings, it would be limited to “extraordinary 22 cases involving special circumstances or a high probability of success.” In re Roe, 257 23 F.3d at 1080. Petitioner has made no such showing and his motion for release from custody 24 is DENIED. 25 Petitioner has filed a Motion to transfer his state court proceedings to another county, 26 which is directed at the state supreme court, arguing that he has not received due process 27 in the courts of San Diego County. ECF No. 2 at 1-3. Respondent argues the transfer 28 motion is moot since the resentencing proceedings are no longer pending in the San Diego 1 County Superior Court. ECF No. 10-1 at 4. Petitioner argues that he is being denied due 2 process by the state appellate court as well, which is also located in San Diego County, and 3 that his claims of wrongful imprisonment would be recognized as legitimate in any other 4 county. See ECF No. 15-1 at 3-4; ECF No. 16-1 at 3-4. In two related motions, which are 5 identical copies, and a supplemental motion, Petitioner seeks a preliminary injunction and 6 a temporary restraining order suspending, until a ruling on his motion to transfer the case 7 to another county, the operation of the July 14, 2025, appellate court order which denied 8 his request for self-representation on appeal on the basis that there is no right to self- 9 representation on appeal. ECF No. 15 at 1-2; ECF No. 15-2 at 29; ECF No. 16 at 1-2; ECF 10 No. 16-2 at 29; ECF No. 17 at 1-2. Petitioner argues that he is being denied access to trial 11 transcripts in his criminal case which would show he was not present at the three pretrial 12 hearings which the trial court minutes fraudulently state he attended, and apparently 13 contends that he would be in a position to obtain those records if he could proceed pro se 14 on appeal or if his state proceedings were transferred to another county. ECF No. 15 at 3- 15 4; ECF No. 15-1 at 3-4; ECF No. 16 at 3-4; ECF No. 16-1 at 3-4; ECF No. 17 at 2. 16 Petitioner unsuccessfully sought copies of those records in the state court in 2006 and 2007, 17 in a procedurally improper manner. See Quillar v. Nielsen, 2009 WL 726322. He 18 unsuccessfully sought copies of those records in this Court in 2009 in a habeas petition 19 which was dismissed as second or successive. See Order filed 9/25/09 at 1-2 [ECF No. 7], 20 Quillar v. Evans, No. 09cv1649, 2009 WL 3381816 (S.D. Cal. Oct. 16, 2009). 21 The standard for issuing a temporary restraining order is the same as the standard 22 for issuing a preliminary injunction. Stuhlbarg Int’l Sales Co., Inc. v. John D. Brush & 23 Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that a TRO and preliminary 24 injunction involve “substantially identical” analyses). Petitioner “must establish that he is 25 likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 26 preliminary relief, that the balance of equities tips in his favor, and that an injunction is in 27 the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 28 1 Petitioner has failed to show he is likely to suffer irreparable harm if the appellate 2 court order denying him permission to represent himself on appeal is not suspended until 3 there is a ruling on his motion to have his state case transferred to another county. His 4 ||claimed need for that relief—to obtain the trial transcripts necessary to support his claims 5 || in the instant federal Petition that state court minute orders fraudulently reflect his presence 6 || at court hearings—is not foreclosed in this action, but is premature. After the stay is lifted, 7 || Petitioner may seek to expand the record in this case to include those records. Accordingly, 8 Petitioner’s Motions for a preliminary injunction and temporary restraining order are 9 || DENIED. 10 CONCLUSION AND ORDER 11 For the foregoing reasons, the Court DENIES Respondent’s Motion to Dismiss 12 ||[ECF No. 10], DENIES Petitioner’s Motion for transfer [ECF No. 2], DENIES 13 || Petitioner’s Motion for release from custody [ECF No. 3], and DENIES Petitioner’s 14 || Motions for a temporary restraining order and a preliminary injunction [ECF Nos. 15-17]. 15 This action is STAYED pending the completion of Petitioner’s state proceedings 16 || appealing his August 22, 2024, state court judgment. Respondent is DIRECTED to submit 17 ||status reports every ninety (90) days regarding the status of the state court appellate 18 || proceedings and to notify the Court within thirty (30) days of when those proceedings are 19 || final and request the stay be lifted. 20 IT IS SO ORDERED. 21 ||Dated: September 4, 2025 _ , 22 Honoré i Barry Ted ‘tila 23 United States District Judge 24 25 26 27 28