1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LA TWON WEAVER, Case No.: 18cv2888 BTM (LL) Petitioner, 12 ORDER: v. 13 (1) ACCEPTING STIPULATION OF THE RONALD DAVIS, Warden of California 14 PARTIES [ECF NO. 53] AND ISSUING State Prison at San Quentin, FINDINGS ON EXHAUSTION STATUS 15 Respondent. OF CLAIMS IN FEDERAL PETITION; 16 (2) GRANTING RENEWED MOTION 17 FOR STAY AND TO HOLD FEDERAL HABEAS PROCEEDINGS IN 18 ABEYANCE [ECF NO. 54]; AND 19 (3) SETTING DEADLINES 20 21 Pending before the Court is Petitioner’s renewed motion to hold federal habeas 22 proceedings in abeyance while the state exhaustion petitions are pending. (ECF No. 54.) 23 Respondent has filed an opposition, and Petitioner has filed a reply. (ECF Nos. 55, 59.) 24 The parties were previously directed to meet, confer and attempt to reach agreement as to 25 the exhaustion status of the claims in the federal Amended Petition [“Petition”], and on 26 February 26, 2020 filed a joint statement indicating they “were able to agree upon and 27 stipulate to the exhaustion of all claims and sub-claims in the Petition, except [for] four 28 [claims].” (ECF No. 53 at 2.) 1 For the reasons discussed in the instant Order, the Court ACCEPTS the stipulation 2 of the parties as to the exhaustion status of the claims in the federal Petition, ISSUES 3 FINDINGS in accordance with that stipulation, GRANTS Petitioner’s renewed motion to 4 hold the federal proceedings in abeyance, and SETS deadlines as outlined below. 5 I. RELEVANT PROCEDURAL HISTORY 6 Petitioner was convicted in a San Diego Superior Court bench trial of robbery, 7 burglary, and first degree murder, with the special circumstances of murder in the course 8 of a robbery and murder in the course of a burglary, and was sentenced to death. 9 Petitioner filed an opening brief on direct appeal on January 17, 2007 and a reply 10 brief on December 14, 2010. (ECF No. 28, Lodgment Nos. 72, 74.) In a direct appeal 11 opinion dated April 16, 2012, the California Supreme Court affirmed Petitioner’s 12 convictions of first degree murder (California Penal Code § 187(a)) with the special 13 circumstances of murder in the course of a robbery and in the course of a burglary (Cal. 14 Penal Code § 190.2(a)(17)), robbery (Cal. Penal Code § 211), burglary (Cal. Penal Code 15 § 459), affirmed the findings that Petitioner used a firearm in the commission of the 16 offenses (Cal. Penal Code § 12022.5(a)) and inflicted great bodily injury in the commission 17 of the robbery and burglary (Cal. Penal Code § 12022.7(a)), and affirmed Petitioner’s death 18 sentence. People v. Weaver, 53 Cal. 4th 1056 (2012). The United States Supreme Court 19 denied the petition for a writ of certiorari on January 7, 2013. Weaver v. California, 568 20 U.S. 1095 (2013). 21 Petitioner filed a habeas petition with accompanying exhibits in the California 22 Supreme Court on May 31, 2011, filed a reply to the Respondent’s informal response to 23 the petition with accompanying exhibits on June 4, 2013, and filed a motion for a stay 24 pending completion of investigation of selective prosecution claims on December 29, 2017. 25 (ECF No. 29, Lodgment Nos. 79-96, 98-100.) On November 14, 2018, the California 26 Supreme Court denied the state petition for writ of habeas corpus and denied the motion 27 for stay pending completion of investigation. (ECF No. 29, Lodgment No. 102.) On 28 November 27, 2018, Petitioner filed a motion for reconsideration of denial of stay and 1 summary denial of habeas corpus petition claims 12, 13 and 14 without allowing the 2 presentation of relevant supporting evidence, and on December 24, 2018, filed an 3 application to supplement his petition.1 (ECF No. 29, Lodgment Nos. 103, 104.) On 4 January 2, 2019, the California Supreme Court denied the motion and application. (ECF 5 No. 29, Lodgment No. 105.) 6 On December 27, 2018, Petitioner filed a request for appointment of counsel in this 7 Court and on February 5, 2019, the Court granted that request and appointed counsel 8 pursuant to the recommendation of the Selection Board. (ECF Nos. 1, 5.) On July 1, 2019, 9 the Court denied without prejudice Petitioner’s motion for equitable tolling of the deadline 10 for filing the federal petition. (ECF No. 30.) On November 4, 2019, the Court issued an 11 order deferring ruling on Petitioner’s renewed motion for equitable tolling pending the 12 filing of a protective petition on or before November 14, 2019. (ECF No. 40.) On 13 November 5, 2019, Petitioner filed a Petition for Writ of Habeas Corpus. (ECF No. 41.) 14 On November 6, 2019, Petitioner filed a Notice of Filing Petitions for Writ of Habeas 15 Corpus in the California Supreme Court and Lodgment of Petitions, indicating that 16 Petitioner filed second and third state habeas petitions in the California Supreme Court on 17 May 20, 2019 and November 5, 2019, respectively.2 (ECF No. 43.) 18 On December 3, 2019, the Court granted Petitioner’s renewed motion for equitable 19 tolling, denied without prejudice Petitioner’s motion to hold the federal proceedings in 20
21 22 1 Claims 12-14 in the first state habeas petition are raised in the federal Petition as Claims 1-3. (See ECF Nos. 54-1 at 12, 16; see also ECF No. 29, Lodgment No. 79.) 23 2 Petitioner indicates that “[t]he second state petition raises new evidence in support of 24 otherwise-exhausted claims 1, 2 and 3 of the federal petition,” that “[t]he third state petition 25 raises all of petitioner’s fully unexhausted claims, along with a claim of cumulative error,” and that both petitions have been since transferred to the San Diego County Superior Court 26 where they both remain pending. (ECF No. 54-1 at 8-9.) Petitioner also indicates that 27 Respondent requested, and the superior court granted, a stay of the second state petition pending the outcome of the California Supreme Court’s decision in In re Friend, Case No. 28 1 abeyance, and set deadlines for the filing of a joint statement on exhaustion and potential 2 briefing on any requests for stay and abeyance after the filing of an amended petition on or 3 before February 5, 2020. (ECF No. 51.) On January 27, 2020, Petitioner filed an Amended 4 Petition. (ECF No. 52.) 5 On February 26, 2020, pursuant to the Court’s December 3, 2019 Order, the parties 6 filed a Joint Statement Regarding Exhaustion. (ECF No. 53.) On March 14, 2020, 7 Petitioner filed a renewed motion to hold federal habeas proceedings in abeyance while the 8 state exhaustion petitions are pending. (ECF No. 54.) On March 30, 2020, Respondent 9 filed an opposition to the renewed motion. (ECF No. 55.) On April 20, 2020, Petitioner 10 filed a reply. (ECF No. 59.) 11 II. DISCUSSION 12 A. Exhaustion 13 “[A] state prisoner must normally exhaust available state judicial remedies before a 14 federal court will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 15 275 (1971); see also 28 U.S.C. §§ 2254(b) and 2254(c). “[O]nce the federal claim has been 16 fairly presented to the state courts, the exhaustion requirement is satisfied.” Picard, 404 17 U.S. at 275. 18 In the joint statement, the parties agreed that fifty-eight claims in the Petition are 19 exhausted, including “Claims 4 through 6; Claims 8 through 43; Claims 46 through 59; 20 Claim 61; Claim 63; and Claims 66 through 68,” and that nine claims in the Petition are 21 unexhausted, including “Claim 7; Claim 44; Claim 45; Claim 60; Claim 62; Claim 65; 22 Claim 69; Claim 70; and Claim 71 (to the extent it relies on unexhausted claims).” (ECF 23 No. 53 at 2.) The joint statement also indicated that: “The parties do not agree as to Claims 24 1, 2, 3, and 64. Respondent believes they are exhausted. Mr. Weaver agrees that the claims 25 are exhausted, but because those claims include facts and/or law that are not exhausted, the 26 new facts and/or law must first be fairly presented to the state court.” (Id.) 27 Petitioner contends that “the new law and/or facts pled in these claims must first be 28 exhausted in state court absent an agreement that the following new law and/or facts are 1 exhausted,” listing new exhibits, facts and/or law pled with respect to Claim 1-3 and Claim 2 64. (ECF No. 53 at 3-4.) Respondent maintains that “the law provides that the presentation 3 of additional facts in a federal petition does not render a claim unexhausted when the 4 petitioner has presented the substance of his claim to a state court and the supplemental 5 evidence does not fundamentally alter the legal claim considered by the state court,” that 6 “[t]his is the situation with Claims 1, 2, 3, and 64,” and that “[b]ecause those claims are 7 exhausted, this Court’s consideration of them is limited to the evidence presented to the 8 California Supreme Court in Weaver’s first state habeas petition.” (ECF No. 53 at 4, citing 9 Vasquez v. Hillery, 474 U.S. 254, 257-58 (1986), 28 U.S.C. § 2254(d)(2) and Cullen v. 10 Pinholster, 563 U.S. 170, 181-82 (2011).) 11 An en banc Ninth Circuit Court decision held that: “A claim has not been fairly 12 presented in state court if new factual allegations either ‘fundamentally alter the legal claim 13 already considered by the state courts,’ or ‘place the claim in a significantly different and 14 stronger evidentiary posture than it was when the state courts considered it.’” Dickens v. 15 Ryan, 740 F.3d 1302, 1318 (9th Cir. 2014) (en banc), quoting and citing Hillery, 474 U.S. 16 at 260, Beaty v. Stewart, 303 F.3d 975, 989-90 (9th Cir. 2002), Aiken v. Spaulding, 841 17 F.2d 881, 883 (9th Cir. 1988), and Nevius v. Sumner, 852 F.2d 463, 470 (9th Cir. 1988). 18 Yet here, the parties have indicated they agree even the “contested” claims are exhausted. 19 (See ECF No. 53 at 2.) In particular, neither Petitioner nor Respondent asserts in the joint 20 statement that any new law and/or facts now pled by Petitioner have rendered Claims 1-3 21 or 64 themselves unexhausted.3 Given the lack of any stated disagreement on the 22
23 3 The Court notes that in the renewed motion for stay and abeyance, Petitioner indicates 24 that he “has asserted unexhausted claims that are potentially meritorious,” and appears to 25 mistakenly include Claims 1-3 and 64 in that list. (ECF No. 54-1 at 19.) Earlier in the motion, Petitioner also appears to mistakenly include Claim 64 in a list of claims “as to 26 which state court remedies had not been exhausted.” (Id. at 9.) Yet, in the filed reply brief, 27 Petitioner refers to Claims 1-3 and 64 as exhausted claims for which Petitioner contends there is new evidence available, consistent with the parties’ joint statement on exhaustion. 28 1 exhaustion status of those claims, or any of the claims in the federal Petition, the Court will 2 refrain from detailed examination of the exhaustion matter. 3 As outlined above and based upon the agreement of the parties, the Court 4 ACCEPTS the stipulation and FINDS that “Claim 7; Claim 44; Claim 45; Claim 60; Claim 5 62; Claim 65; Claim 69; Claim 70; and Claim 71 (to the extent it relies on unexhausted 6 claims),” are unexhausted and that “Claims 4 through 6; Claims 8 through 43; Claims 46 7 through 59; Claim 61; Claim 63; and Claims 66 through 68,” as well as Claims 1-3 and 64, 8 are exhausted. (ECF No. 53 at 2.) 9 B. Stay and Abeyance Under Rhines 10 In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that “federal district 11 courts may not adjudicate mixed petitions for habeas corpus, that is, petitions containing 12 both exhausted and unexhausted claims” and “reasoned that the interests of comity and 13 federalism dictate that state courts must have the first opportunity to decide a petitioner’s 14 claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005), citing Lundy, 455 U.S. at 518-19. 15 Yet, as the Rhines Court recognized, “[t]he enactment of AEDPA [The Antiterrorism and 16 Effective Death Penalty Act] in 1996 dramatically altered the landscape for federal habeas 17 corpus petitions” and “[a]s a result of the interplay between AEDPA’s 1-year statute of 18 limitations and Lundy’s dismissal requirement, petitioners who come to federal court with 19 ‘mixed’ petitions run the risk of forever losing their opportunity for any federal review of 20 their unexhausted claims.” Id. at 274-75. 21 Under Rhines, when presented with a mixed federal habeas petition, “a district court 22 might stay the petition and hold it in abeyance while the petitioner returns to state court to 23
24 apparent characterization of the exhaustion status of the claims as an “allegation,” and 25 asserts that “[t]he exhaustion status of the claims is not an allegation but an agreed-upon fact to which both parties stipulated.” (Id. at 17 n.3.) In view of the parties’ stipulation as 26 to the exhaustion status of the claims in the federal Petition and Petitioner’s affirmance of 27 that stipulation as fact in the reply brief, the Court accepts the stipulation notwithstanding 28 the inclusion of Claims 1-3 and 64 in the list of unexhausted claims in the motion. 1 exhaust his previously unexhausted claims.” Id. at 275-77. The Supreme Court also 2 counseled that “stay and abeyance should be available only in limited circumstances” and 3 was only appropriate where: (1) “there was good cause for the petitioner’s failure to exhaust 4 his claims first in state court,” (2) the “unexhausted claims are potentially meritorious” and 5 (3) “there is no indication that the petitioner engaged in intentionally dilatory litigation 6 tactics.” Id. at 277-78. 7 Because, as noted above, the parties have each indicated their agreement as to the 8 exhaustion status of the claims in the federal Petition, including that fifty-eight claims 9 and/or subclaims are exhausted and nine claims are unexhausted (see ECF No. 53 at 2), the 10 Court finds that the federal Petition is clearly a mixed petition. Accordingly, a Rhines 11 analysis appears appropriate under the circumstances presented in this case. 12 1. Good cause 13 The Supreme Court has cautioned: “Because granting a stay effectively excuses a 14 petitioner’s failure to present his claims first to the state courts, stay and abeyance is only 15 appropriate when the district court determines there was good cause for the petitioner’s 16 failure to exhaust his claims first in state court.” Rhines, 544 U.S. at 277. However, “[t]he 17 caselaw concerning what constitutes ‘good cause’ under Rhines has not been developed in 18 great detail.” Dixon v. Baker, 847 F.3d 714, 720 (9th Cir. 2017), citing Blake v. Baker, 19 745 F.3d 977, 980 (9th Cir. 2014) (“There is little authority on what constitutes good cause 20 to excuse a petitioner’s failure to exhaust.”) The Ninth Circuit has indicated that the
21 showing required for “good cause” is less than “extraordinary circumstances.” See Jackson 22 v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005) (“Although examination into Jackson’s failure 23 to exhaust was proper, and indeed, necessary, under Rhines, we hold that the application 24 of an ‘extraordinary circumstances’ standard does not comport with the ‘good cause’ 25 standard prescribed by Rhines.”) 26 The Ninth Circuit has also provided that “good cause turns on whether the petitioner 27 can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure.” 28 Blake, 745 F.3d at 982, citing Pace, 544 U.S. at 416. “While a bald assertion cannot amount 1 to a showing of good cause, a reasonable excuse, supported by evidence to justify a 2 petitioner’s failure to exhaust, will.” Blake, 745 F.3d at 982; contrast with Wooten v. 3 Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008) (rejecting good cause showing where a 4 petitioner indicated he was “under the impression” that counsel had presented all claims 5 presented in the state appellate court to the state supreme court, reasoning that “[t]o accept 6 that a petitioner’s ‘impression’ that a claim had been included in an appellate brief 7 constitutes ‘good cause’ would render stay-and-obey [sic] orders routine.”) 8 Petitioner advances numerous arguments in support of his assertion that he has good 9 cause for the previous failure to exhaust claims or the additional facts and/or law now 10 presented in support of several already exhausted claims. For one, Petitioner notes that 11 “[t]hrough the course of the federal habeas investigation, petitioner discovered and 12 presented additional evidence that was not presented in state court in support of claims that 13 were presented in state court” and “pleaded additional unexhausted claims that were not 14 previously raised in state court.” (ECF No. 54-1 at 11) (emphasis in original.) Petitioner 15 contends that “[a]dditional information and evidence that supports constitutional 16 challenges to California’s death penalty generally, and as applied to petitioner, which was 17 not available until recently, is included in many of the claims brought in the second and 18 third state petitions,” and cites to Claims 1-3, 7, 44-45, 60, 64-65, and 71. (Id. at 12-14.) 19 Petitioner also contends that several claims in the most-recently filed third state petition 20 rely on changes in science and/or the law that have occurred since the first state habeas 21 petition was filed, namely Claims 7, 44, 45 and 70, and that he was unable to raise Claim 22 62, which alleges dysfunction in the state review process generally and as applied to 23 Petitioner, until his first state habeas petition had been denied. (Id. at 14.) Finally, 24 Petitioner argues that “California’s unspecific and sometimes incoherent timeliness rules 25 create a ‘reasonable confusion’ regarding whether subsequent state petitions will be 26 deemed untimely,” and also provide good cause for a stay. (Id. at 15.) 27 /// 28 /// 1 a. New Evidence and Changes in Law 2 Petitioner asserts that he has good cause for failing to exhaust because several of his 3 previously-raised claims now rely on new evidence not previously available when the first 4 state petition was filed and because several unexhausted claims rely on new evidence 5 and/or changes in the law since the filing of the first state petition. With respect to Claims 6 1-3, Petitioner contends that “[e]ach claim relies on the fruits of an investigation into the 7 District Attorney’s charging practices that did not conclude until December 2018” and that 8 Claim 7, 44, and 45 “each rely on newly-available advances in brain science and scientific 9 research regarding physical brain maturity and its psychological consequences.” (ECF No. 10 54-1 at 12-13.) Petitioner notes that Claim 60 relies on “Governor Gavin Newsom’s 11 November 9, 2019 Executive Order placing a moratorium on executions in California,” 12 “commentary on the executive order by a justice of the California Supreme Court,” “the 13 ongoing aftermath of California’s 2016 ballot initiative to accelerate death penalty review 14 in the state,” and “the ever-increasing record of delays and disparities in the processing of 15 state capital post-conviction review.” (Id. at 13.) Petitioner argues Claim 64 is “based on 16 new facts indicating that national support for and application of the death penalty has 17 plummeted in recent years,” Claim 65 “relies on the August 6, 2019 acknowledgment by 18 California Supreme Court justice Goodwin Liu that the state Court’s standards for 19 evaluating clemency recommendations are inadequate and suspect,” and Claim 71 “raises 20 cumulative prejudice and therefore relies on all of the new facts relied on in the underlying 21 claims.” (Id. at 13-14.) Petitioner also contends that “Claims 7, 44, and 45 rely on newly- 22 available advances in brain science and scientific research regarding physical brain 23 maturity and its psychological consequences” as well as “recent developments in the law 24 in response to this growing body of scientific research,” and Claim 70 “relies on the 25 September 30, 2018 passage of California Senate Bill 1437.” (ECF No. 54-1 at 14.) 26 First, with respect to Claims 1-3 alleging selective prosecution, Respondent 27 maintains that the “December 2018 completion of an investigation into the district 28 attorney’s charging practices does not constitute good cause,” pointing out that “[t]he same 1 counsel has continuously represented Weaver for over twenty years but made no effort to 2 obtain discovery relating to selective prosecution until eleven years after he was 3 appointed,” noting that counsel was appointed in 1999, began informal discovery in 2007, 4 but did not request information concerning such a potential claim until 2010. (ECF No. 55 5 at 10.) Respondent also notes that even prior to completion of this investigation, Petitioner 6 presented claims relating to that investigation in his first state petition and fails to show the 7 new evidence substantially alters the claims. (Id. at 11.) Respondent asserts that the 8 allegation in the state petition and instant federal Petition are “similar” and that “[t]he 9 results of Weaver’s investigation that are discussed in his Petition do nothing more than 10 provide additional data showing a correlation between a defendant’s race and the district 11 attorney’s decision to seek the death penalty during the relevant time period.” (Id.) 12 In so arguing, Petitioner relies heavily on the Ninth Circuit’s decision in Gonzalez 13 v. Wong, 667 F.3d 965, 980 (9th Cir. 2011), to contend that “a stay is available to present 14 new evidence in state court regarding exhausted claims so long as the petitioner has good 15 cause for not presenting the evidence in the original state petition.” (ECF No. 59 at 13) 16 (emphasis in original.) In Gonzalez, the Ninth Circuit held that it was unable to view 17 previously-undisclosed records obtained during the pendency of the federal habeas 18 proceedings, given that the Supreme Court had recently held in Pinholster that section 19 2254(d)(1) review under AEPDA was limited to the record before the state court, and in 20 Gonzalez, the state court had not been provided with an opportunity to review the records 21 in question. See Gonzalez, 667 F.3d at 979. Reasoning that “[f]or us simply to ignore the 22 materials that did not emerge until the federal habeas proceedings would be to reward the 23 prosecutor for withholding them,” and recognizing the potential merit of the claim, the 24 Gonzalez Court “conclude[d] that the appropriate course for us at this point is to remand 25 to the district court with instructions that it stay and abey the habeas proceedings to allow 26 [Petitioner] to present to state court his Brady claim including the subsequently-disclosed 27 materials.” Id. at 980. 28 /// 1 However, Gonzalez is factually distinguishable from the instant case in a crucial 2 respect. Unlike in Gonzalez, where the new evidence was only uncovered during the 3 federal proceedings and the state court was never provided an opportunity to consider that 4 evidence, the California Supreme Court was clearly aware of the evidence and materials at 5 issue in Petitioner’s case. A full year prior to the California Supreme Court’s decision 6 denying habeas relief, Petitioner requested a stay of the state habeas proceedings in order 7 to complete the discovery, and painstakingly detailed both the investigation into the 8 charging practices and the discovery proceedings conducted in his case to that point, as 9 well as the efforts Petitioner’s counsel made to keep the California Supreme Court apprised 10 of the status and progress of those proceedings. 11 Petitioner asserts that “[t]he California Supreme Court waited almost 12 full months 12 before it denied the Stay Motion,” and while “[a]ware that petitioner was on the verge of 13 completing the investigation, litigation, and expert analysis-and aware that Petitioner’s 14 preliminary analysis established that racial discrimination had infected the capital charging 15 decisions in San Diego County-the California Supreme Court nevertheless denied the stay 16 motion on November 14, 2018 without explanation or comment” and “summarily denied 17 the first habeas petition on the same day.” (ECF No. 59 at 12.) Yet, again, the instant 18 situation is distinguishable from the one presented in Gonzalez. In Petitioner’s case, the 19 state court was not only kept apprised throughout the progression of the discovery 20 proceedings, but the information obtained from those proceedings was also known to the 21 California Supreme Court, albeit in a “preliminary” fashion. Indeed, in the motion for a 22 stay of the state proceedings, Petitioner discussed the work completed to date and the 23 expectation that the data obtained would provide “supplemental evidentiary support” for 24 the state claims. (ECF No. 59-1 at 11-12.) The accompanying declaration of counsel 25 similarly indicated that the data was not complete, but that “we have obtained sufficient 26 data to provide to the experts for their preliminary analysis.” (ECF No. 59-1 at 78.) 27 Petitioner contends that “[u]nder the comity principle, the state court should be given 28 a chance to consider this new evidence before the federal habeas proceeding proceeds.” 1 (ECF No. 54-1 at 12.) Unlike in Gonzalez, the new evidence at issue here was not unknown 2 to the state court. At least with respect to the evidence resulting from Petitioner’s 3 investigation into the San Diego County charging practices and decisions, it is apparent 4 that the state court was already provided the opportunity to consider that evidence and 5 declined after being provided with the “preliminary analysis.” Moreover, as Petitioner 6 indicates (see id. at 6), the California Supreme Court granted Petitioner’s application for 7 leave to file a motion for reconsideration and Petitioner filed both a motion for 8 reconsideration of denial of stay and summary denial of habeas corpus petition claims 12, 9 13 and 14 (Claims 1-3 in the federal Petition) without allowing the presentation of relevant 10 supporting evidence and an application to supplement his petition; after those filings, the 11 state court subsequently denied both the motion and application. (See ECF No. 29, 12 Lodgment Nos. 103-05.) Given that the state court had more than one opportunity to hear 13 the selective prosecution claims together with the results of the investigation and declined 14 to do so, the Court is not persuaded Gonzalez provides grounds for a stay. 15 Although Gonzalez does not support Petitioner’s position, the Court is not presently 16 persuaded that a stay of the federal proceedings to first allow the state court to consider the 17 completed results of the selective prosecution investigation supporting Claims 1-3 is 18 foreclosed. The Court recognizes that Petitioner and Respondent agree the Court cannot 19 review new evidence under AEDPA unless it is first presented to the state court. (See ECF 20 No. 53 at 4) (“[B]ecause [Claims 1-3 and 64] are exhausted, this Court’s consideration of 21 them is limited to the evidence presented to the California Supreme Court in Weaver’s first 22 state habeas petition.”), citing Vasquez v. Hillery, 474 U.S. 254, 257-58 (1986), 28 U.S.C. 23 § 2254(d)(2) and Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011); (see also ECF No. 54- 24 1 at 9) (“Under Cullen v. Pinholster, 563 U.S. 170 (2011), this Court may not consider the 25 new evidence in evaluating [Claims 1-3] under 28 U.S.C. §2254(d) unless the evidence is 26 first presented to the state court,” and “[a]ccordingly, petitioner filed the second state 27 petition presenting the new evidence.”) Comity concerns appear to counsel in favor of a 28 stay to first allow the state court to consider the unpresented evidence in support of these 1 claims, particularly given that the exhaustion petitions are currently pending in that court. 2 Were Petitioner able to demonstrate the state court decision is not entitled to deference 3 under section 2254(d)(2), consideration of Claims 1-3 would be de novo and the Court 4 could consider the results of the selective prosecution investigation. See Taylor v. Maddox, 5 366 F.3d 992, 1001 (9th Cir. 2004) (“[T]he state-court fact-finding process is undermined 6 where the state court has before it, yet apparently ignores, evidence that supports 7 petitioner’s claim.”), overruled on other grounds by Murray v. Schriro, 745 F.3d 984, 999- 8 1000 (9th Cir. 2014), citing Miller-El v. Cockrell, 537 U.S. 322, 346 (2003); see also Milke 9 v. Ryan, 711 F.3d 998, 1007 (9th Cir. 2013) (“Section 2254(d)(2) authorizes federal habeas
10 relief when the state-court decision was ‘based on an unreasonable determination of the 11 facts in light of the evidence presented in the State court proceeding.’ Such unreasonable 12 determinations ‘come in several flavors,’ one of them being ‘where the fact-finding process 13 itself is defective.’”), citing Taylor, 366 F.3d at 1000, 1001. Alternately, were Petitioner 14 first able to satisfy section 2254(d)(1) based only on the evidence presented to the state 15 court, review would also then be de novo and Pinholster would not thereafter preclude the 16 Court from considering the finalized results of the selective prosecution investigation in 17 support of Claims 1-3. Even in that situation, under a de novo review, the Court’s 18 consideration of Petitioner’s claims could be further informed by any discussion or analysis 19 offered by the state court in the adjudication of the exhaustion petitions. See Frantz v. 20 Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc) (holding that even under de novo 21 review, reasoning of state court remains relevant to reviewing court’s consideration of 22 whether a constitutional violation occurred). In any event, by permitting a stay, which is 23 supported by not only comity considerations but also the Court’s analysis of Petitioner’s 24 good cause argument for Claims 7, 44 and 45 discussed below, Pinholster would no longer 25 present any obstacle to the Court’s consideration of the new evidence. 26 With respect to Claims 7, 44 and 45, Petitioner contends that these claims “rely on 27 newly-available advances in brain science and scientific research regarding physical brain 28 maturity and its psychological consequences” as well as “recent developments in the law 1 in response to this growing body of scientific research.” (ECF No. 54-1 at 14.) Claim 7 2 alleges Petitioner’s jury waiver was constitutionally infirm and that alternatively, trial 3 counsel was ineffective in advising Petitioner to waive the jury without investigation into 4 his mental health and cognitive condition as they related to impairment of his ability to 5 make such a waiver. (ECF No. 52 at 64-79.) Claim 44 alleges that Petitioner’s death 6 sentence is cruel and unusual because he was 23 at the time of the offense and his brain 7 development was incomplete and his culpability thus reduced, and Claim 45, relying on 8 the facts outlined in Claim 44, alleges that the imposition of a mandatory sentence of life 9 in prison without the possibility of parole constitutes cruel and unusual punishment because 10 Petitioner was 23 at the time of the offense. (Id. at 317-40.) 11 Respondent argues that any such changes do not provide good cause, noting that 12 “Weaver cites scientific literature that existed before he filed his first state habeas petition 13 in 2011” and maintains that “[a]lthough there may be additional support for his claims now, 14 he provides no explanation for why he could not bring these claims in that first petition.” 15 (ECF No. 55 at 15.) Petitioner argues the relevant science “had not reached the 16 mainstream” until after the filing of the first state petition and that “most of the studies 17 petitioner cited in support of the claim that Roper v. Simmons should be extended to 18 individuals such as petitioner were published after Dr. Pablo Stewart signed his declaration 19 in support of the first state petition in May 2011.” (ECF No. 59 at 15, citing ECF No. 52 20 at 317-29, ECF No. 52-1.) Petitioner contends that “[u]nderstanding of the science of brain 21 development ‘substantially’ evolved during the first decade of the millennium” and 22 “[w]hile the theory that ‘emerging adulthood’ continued until age 25 was the subject of 23 scientific investigation, the body of research did not produce a scientific consensus until 24 after the petition was filed.” (Id.) 25 Several experts who provided declarations in connection with the first state habeas 26 petition have also provided supplemental declarations in support of the federal Petition. 27 The experts appear to each agree that a scientific consensus on the matter of brain 28 development in younger adults has only been reached in recent years. The experts largely 1 and consistently indicate that “a significant portion of the literature pertaining to the brain 2 development of individuals age 21 or older . . . is the product of research conducted 3 subsequent to the signing of my declaration in 2011.” (ECF No. 52-1 at 424 (supplemental 4 declaration of Dr. Sontag)); (see also ECF No. 52-1 at 429 (declaration of Susan Audap) 5 (same); ECF No. 52-1 at 434 (declaration of Dr. Stewart) (same).) Dr. Stewart, who 6 submitted a declaration in support of the first state habeas petition, states that “this is an 7 emerging field of research and many of the most seminal studies in the field, particularly 8 with regard to brain development during the decade of the twenties, were published in the 9 last decade.” (ECF No. 52-1 at 435.) Dr. Stewart also states that “based on the materials 10 I reviewed prior to signing my original declaration in 2001 [sic], and based on the state of 11 the scientific and medical research as it existed at that time, I would have been able to 12 testify at the time I signed that declaration that, to a reasonable degree of medical certainty, 13 Mr. Weaver’s cognitive deficits and mental disorders substantially impaired his ability to 14 enter a knowing, intelligent, and voluntary waiver of his right to a jury,” and that the recent 15 research “further supports” his conclusion concerning the infirmities of the jury waiver. 16 (Id.) Moreover, Dr. Sontag’s 2011 declaration submitted in support of the first state 17 petition, and attached in support of the federal Petition, asserts that: “La Twon at age 23 18 was not, functionally, an adult. His history precluded him from consolidating the 19 developmental base required to meet adult challenges, and his current level of functioning 20 was severely compromised.” (ECF No. 52-1 at 266) (footnote omitted.) 21 While it appears clear that some research on this matter existed prior to the filing of 22 the 2011 petition, given that the experts agree and indicate much of the research was 23 conducted after 2011 and scientific consensus was not reached until recently (see ECF No. 24 52-1 at 424, 429, 434), and legal recognition followed even later (see ECF No. 59 at 16, 25 18-19), it is unclear how Petitioner could reasonably have brought such claims earlier. In 26 view of the recent scientific research and consensus discussed in the expert declarations 27 coupled with subsequent legal developments and changes in the law concerning Claims 7, 28 44 and 45, as well as the arguments addressed above with respect to Claims 1-3, the Court 1 is persuaded Petitioner has “set forth a reasonable excuse, supported by sufficient evidence, 2 to justify th[e] failure” to exhaust. Blake, 745 F.3d at 982, citing Pace, 544 U.S. at 416. 3 b. Remainder of good cause arguments 4 Because the Court has found good cause for Petitioner’s failure to exhaust based on 5 the scientific developments and changes in law discussed above, the Court need not address 6 whether Petitioner’s additional arguments, including but not limited to recent 7 developments in the administration of the death penalty in California and allegations 8 concerning the confusing nature of California’s timeliness rules, could also satisfy the good 9 cause requirement. 10 2. Potential Merit of Unexhausted Claims 11 In Rhines, the Supreme Court specified “even if a petitioner had good cause for that 12 failure [to exhaust], the district court would abuse its discretion if it were to grant him a 13 stay when his unexhausted claims are plainly meritless.” Id., 544 U.S. at 277, citing 28 14 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the 15 merits, notwithstanding the failure of the applicant to exhaust the remedies available in the 16 courts of the State.”) Yet, the Supreme Court also advised “it likely would be an abuse of 17 discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner 18 had good cause for his failure to exhaust, his unexhausted claims are potentially 19 meritorious, and there is no indication that the petitioner engaged in intentionally dilatory 20 litigation tactics.” Id. at 278. With respect to this second Rhines prong, the Ninth Circuit 21 has since instructed that: 22 A federal habeas petitioner must establish that at least one of his unexhausted claims is not “plainly meritless” in order to obtain a stay under Rhines, 544 23 U.S. at 277, 125 S.Ct. 1528. In determining whether a claim is “plainly 24 meritless,” principles of comity and federalism demand that the federal court refrain from ruling on the merits of the claim unless “it is perfectly clear that 25 the petitioner has no hope of prevailing.” Cassett v. Stewart, 406 F.3d 614, 26 624 (9th Cir. 2005). “A contrary rule would deprive state courts of the opportunity to address a colorable federal claim in the first instance and grant 27 relief if they believe it is warranted.” Id. (citing Rose v. Lundy, 455 U.S. 509, 28 515, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). 1 Dixon, 847 F.3d at 722. 2 While Respondent acknowledges the Ninth Circuit’s holding in Dixon, he 3 nonetheless first argues “the standard must be something higher than this,” asserts “[s]uch 4 a low threshold would permit a stay in virtually every capital case” and contends “[t]his 5 does not comport with Rhines’s mandate that a stay and abeyance should be available only 6 in limited circumstances.” (ECF No. 55 at 19.) Respondent maintains Petitioner’s 7 unexhausted claims in any event also fail to satisfy the standard set forth in Dixon. (Id.) 8 The Court agrees Respondent appears to accurately note the less than onerous plainly 9 meritless standard outlined by the Ninth Circuit in Dixon, but the Court disagrees with 10 Respondent’s assertion that such a standard “would permit a stay in virtually every capital 11 case” or that the standard should not be applied in the instant case. This is primarily 12 because a showing that a claim is not plainly meritless cannot, on its own, warrant a stay 13 under Rhines. Instead, the Supreme Court has explicitly set out three separate prongs 14 which a reviewing court must evaluate, and each of which must be satisfied, in deciding 15 the propriety of stay and abeyance in any specific case. Also, the standard set forth by the 16 Ninth Circuit remains a threshold that some claims, such as those previously foreclosed or 17 rejected under clearly established federal law, would fail to meet. In any event, because 18 this Court is obliged to adhere to Ninth Circuit case law, the Court must and will 19 accordingly follow the direction that “the federal court refrain from ruling on the merits of 20 the claim unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’” Dixon, 21 847 F.3d at 722, quoting Cassett, 406 F.3d at 624. 22 Respondent also contends Petitioner “cannot show the unexhausted claims raised in 23 the Petition are not plainly meritless given the requirements of California Penal Code 24 section 1509,” and states that “[n]one of Weaver’s unexhausted claims nor any of the 25 exhausted claims included in the Petition allege Weaver is actually innocent or is ineligible 26 for a death sentence as required for relief under California Penal Code section 1509.” (ECF 27 No. 55 at 19.) Section 1509(d) provides in relevant part that “a successive petition 28 whenever filed shall be dismissed unless the court finds, by the preponderance of all 1 available evidence, whether or not admissible at trial, that the defendant is actually innocent 2 of the crime of which he or she was convicted or is ineligible for the sentence.” Cal. Penal 3 Code § 1509(d). Other courts in this District, as well as other district courts in California, 4 have reasonably refrained from attempting to reach a conclusion as to how the California 5 Supreme Court or other reviewing state courts might treat unexhausted claims in view of 6 the recent state law changes, and the Court agrees with this approach. (See e.g. ECF No. 7 59 at 17-18 in Prince v. Davis, S.D. Cal. Case No. 16-cv-0871-BAS-KSC) (“In accord with 8 other district courts which have considered this matter, the Court declines an invitation to 9 speculate how the state court may treat his unexhausted claims, given that the California 10 Supreme Court, in upholding the statute at issue, “explicitly reserved ‘as-applied’ 11 challenges to the statute by individual prisoners.” Seumanu v. Davis, 2019 WL 1597518, 12 at *2 (N.D. Cal. Apr. 15, 2019), citing Briggs v. Brown, 3 Cal. 5th 808, 827 (2017) (‘We 13 review here a facial challenge to the constitutionality of Proposition 66, and express no 14 view on claims that may be presented by individual prisoners based on their own 15 circumstances.”); see also Stanley v. Ayers, 2018 WL 2463383, at *6 (N.D. Cal. June 1, 16 2018) (“[T]he Court cannot rule at this time that returning to state court would be futile 17 based on § 1509(d).”)”) Petitioner also indicates Respondent requested a stay of at least 18 one of the state exhaustion petitions in San Diego Superior Court pending the California 19 Supreme Court’s decision in a separate case concerning the definition of “successive 20 petition” in California Penal Code section 1509. (See ECF No. 59 at 22, citing In re Jack 21 Wayne Friend, California Supreme Court Case No. S256914.) For these reasons, the Court 22 will abstain from any supposition as to how the state court may decide this matter or apply 23 that state statute to Petitioner’s unexhausted claims. 24 Upon cursory initial review of Petitioner’s unexhausted claims, it is clear that at least 25 one of those claims is not plainly meritless, which again, is sufficient to satisfy this second 26 Rhines prong. See Dixon, 847 F.3d at 722 (“A federal habeas petitioner must establish that 27 at least one of his unexhausted claims is not “plainly meritless” in order to obtain a stay 28 under Rhines, 544 U.S. at 277, 125 S.Ct. 1528.”) Petitioner contends in Claim 7 that the 1 jury waiver was constitutionally infirm because he was not a fully-developed adult and 2 alternatively that trial counsel was ineffective for advising Petitioner to enter a jury waiver 3 without investigation as to whether Petitioner was impaired in his ability to enter a 4 knowing, intelligent and voluntary waiver. (ECF No. 52 at 64.) Clearly established law 5 requires a defendant’s waiver of the right to a jury trial be knowing, voluntary and 6 intelligent. See Patton v. United States, 281 U.S. 276, 311-12 (1930), abrogated on other 7 grounds by Williams v. Florida, 399 U.S. 78, 90 (1970); see also Florida v. Nixon, 543 8 U.S. 175, 187 (2004) (“A defendant, this Court affirmed, has ‘the ultimate authority’ to 9 determine ‘whether to plead guilty, waive a jury, testify in his or her own behalf, or take 10 an appeal.’”), citing Jones v. Barnes, 463 U.S. 745, 751 (1983); Wainwright v. Sykes, 433 11 U.S. 72, 93, n. 1 (1977) (Burger, C. J., concurring). Given the scientific developments and 12 expert declarations discussed previously in the instant Order, as well as the recent legal 13 developments on this subject, the Court cannot conclude at this time that “‘it is perfectly 14 clear that the petitioner has no hope of prevailing’” on his contention that he was impaired 15 in his ability to enter a knowing, voluntary and intelligent jury waiver such that the claim 16 is plainly meritless. See Dixon, 847 F.3d at 722, quoting Cassett, 406 F.3d at 624. 17 Nor can the Court conclude at this time that the related allegations of ineffective 18 assistance of trial counsel are plainly meritless. With respect to the latter contention, the 19 Court recognizes that under clearly established federal law, “a defendant must show both 20 deficient performance by counsel and prejudice in order to prove that he has received 21 ineffective assistance of counsel.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009), 22 citing Strickland v. Washington, 466 U.S. 668, 687 (1984). While this is a challenging 23 standard to meet, Petitioner indicates records reflect trial counsel retained and consulted 24 with mental health experts to determine whether Petitioner was competent to stand trial, 25 but at the same time trial counsel failed to consider or explore whether Petitioner was also 26 potentially impaired in his ability to knowingly, voluntarily and intelligently waive his right 27 to a jury trial. (See ECF No. 52 at 64-80.) The Court cannot at this time conclude “‘it is 28 perfectly clear that the petitioner has no hope of prevailing’” on his contention trial counsel 1 acted ineffectively in connection with the jury waiver. See Dixon, 847 F.3d at 722, quoting 2 Cassett, 406 F.3d at 624. Accordingly, the Court finds Petitioner has satisfied the second 3 Rhines prong because at least one of his unexhausted claims is not “plainly meritless.” See 4 Dixon, 847 F.3d at 722, citing Rhines, 544 U.S. at 277. 5 3. Intentional Delay or Abusive Tactics 6 With respect to the third Rhines prong, the Supreme Court stated that “if a petitioner 7 engages in abusive litigation tactics or intentional delay, the district court should not grant 8 him a stay at all,” acknowledging “[i]n particular, capital petitioners might deliberately 9 engage in dilatory tactics to prolong their incarceration and avoid execution of the sentence 10 of death.” Id., 544 U.S. at 277-78. 11 On this matter, Respondent indicates only that “[t]he remaining Rhines requirement 12 appears to have been satisfied.” (ECF No. 55 at 20.) Upon consideration of the fact that 13 Respondent does not specifically assert or argue that Petitioner has engaged in any 14 intentional delay or abusive tactics and instead simply indicates this third prong appears 15 satisfied, and in view of the fact Petitioner has already returned to state court to exhaust a 16 second and third state habeas petition (see ECF No. 43), the Court finds Petitioner has 17 satisfied the third Rhines prong. 18 III. CONCLUSION AND ORDER 19 For the reasons discussed above, the Court ACCEPTS the stipulation of the parties 20 [ECF No. 53] and FINDS that Claims 7, 44-45, 60, 62, 65, 69-70, and 71 (to the extent 21 Claim 71 relies on unexhausted claims) are unexhausted and that Claims 1-6, 8-43, 46-59, 22 61, 63-64, and 66-68 are exhausted. The Court GRANTS Petitioner’s renewed motion 23 [ECF No. 54] to stay the federal proceedings and hold the mixed federal petition in 24 abeyance pursuant to Rhines. 25 The Rhines Court also instructed that “district courts should place reasonable time 26 limits on a petitioner’s trip to state court and back.” Id. at 278. Meanwhile, the local rules 27 of this district provide that: “If the petition indicates that there are unexhausted claims from 28 which the state court remedy is still available, petitioner may be granted a thirty (30) day 1 || period in which to commence litigation on the unexhausted claims in state court.” CivLR 2 ||HC.3(g)(5); see also Rhines, 544 U.S. at 278 (indicating approval of a procedure that 3 || provided a petitioner 30 days to commence state court proceedings and 30 days to return 4 ||to federal court after conclusion of the state court exhaustion proceedings), citing Zarvela 5 Artuz, 254 F.3d 374, 381 (2nd Cir. 2001). 6 In view of the fact that Petitioner has already returned to state court to present his 7 unexhausted claims to that court for exhaustion purposes and has provided proof of those 8 || filings to this Court (see ECF No. 43), Petitioner will, on or before December 23, 2020, 9 a brief report with this Court concerning the status of the state habeas petitions. 10 || Petitioner will also file a brief report with this Court every 90 days thereafter to keep the 11 |}Court updated on the status of the state petitions. During the pendency of these state 12 || proceedings, proceedings on the federal case will be stayed. Any amended petition filed 13 this case must be filed within 30 days of the final state court resolution of the exhaustion 14 petition. If Petitioner fails to file any amended petition in this Court within the deadline 15 forth in the instant order, the stay will be lifted. 16 || IT ISSO ORDERED. 17 || Dated: December 14, 2020 18 19 Tle Honorable Barry Ted Moskov 20 United States District Judge 21 22 23 24 25 26 27 28