(HC) Myers v. Phillips

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY JAMES MYERS, Case No. 1:23-cv-00409-JLT-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO GRANT IN PART RESPONDENT’S 13 v. MOTION TO DISMISS 14 BRYAN D. PHILLIPS, et al., (ECF No. 13) 15 Respondents. ORDER VACATING JULY 19, 2023 HEARING [16] 17 Petitioner, represented by counsel, is a state prisoner proceeding with a petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254 . 19 I. 20 BACKGROUND 21 On August 16, 2018, Petitioner was found guilty by a jury in the Tulare County Superior 22 Court of multiple sex crimes against three minor victims. (LD 1–2;1 ECF No. 1 at 10–11.2) On 23 October 12, 2018, Petitioner was sentenced to an imprisonment term of 225 years to life plus 13 24 years. (LD 1–2; ECF No. 1 at 11.) On December 21, 2021, the California Court of Appeal, Fifth 25 Appellate District, stayed the sentence imposed on count 10 and affirmed the judgment in all 26 other respects. (LD 2.) On March 16, 2022, the California Supreme Court denied Petitioner’s [27] 1 “LD” refers to the documents lodged by Respondent on May 17, 2023. (ECF No. 14.) 1 petition for review. (LD 3–4.) Petitioner did not file any state post-conviction collateral 2 challenges. (ECF No. 1 at 13.) 3 On March 19, 2023, Petitioner, through counsel, filed a federal petition for writ of habeas 4 corpus in this Court. (ECF No. 1.) The petition raises the following claims for relief: (1) 5 violation of Petitioner’s right to confrontation; (2) violation of Petitioner’s right to a fair trial; 6 and (3) cumulative error. (ECF No. 1.) On May 12, 2023, Respondent filed a motion to dismiss 7 the petition because the cumulative error claim is unexhausted. (ECF No. 13.) Petitioner filed an 8 opposition, and Respondent filed a reply. (ECF Nos. 15, 16.) 9 II. 10 DISCUSSION 11 A. Exhaustion 12 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 13 must exhaust state judicial remedies. 28 U.S.C. § 2254 (b)(1). The exhaustion doctrine is based 14 on comity to the state court and gives the state court the initial opportunity to correct the state’s 15 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 16 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 17 providing the highest state court with a full and fair opportunity to consider each claim before 18 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 19 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 20 “[F]or purposes of exhausting state remedies, a claim for relief in habeas corpus must 21 include reference to a specific federal constitutional guarantee, as well as a statement of the facts 22 that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152 , 162–63 (1996). Accord 23 Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008) (“Fair presentation requires that the 24 petitioner ‘describe in the state proceedings both the operative facts and the federal legal theory 25 on which his claim is based so that the state courts have a “fair opportunity” to apply controlling 26 legal principles to the facts bearing upon his constitutional claim.’” (citations omitted)). “Mere 27 ‘general appeals to broad constitutional principles, such as due process, equal protection, and the 1 right to a fair trial,’ do not establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th 2 Cir. 2005) (quoting Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999)). 3 In the motion to dismiss, Respondent argues that Petitioner’s cumulative error claim is 4 unexhausted because it was not fairly presented to the California Supreme Court in Petitioner’s 5 petition for review. (ECF No. 13 at 2.) Petitioner contends that his cumulative error claim was 6 sufficiently related and intertwined with his exhausted confrontation and due process claims such 7 that it was fairly presented to the California Supreme Court. (ECF No. 15 at 7–9.) 8 Here, Petitioner’s petition for review filed in the California Supreme Court set forth the 9 following as the “question presented”: 10 Does a trial court violate a defendant’s Sixth Amendment right of Confrontation when it circumvents the individualized findings required by Maryland v. Craig 11 (1990) 497 U.S. 836, 856 [ 110 S.Ct. 3157 , 111 L.Ed.2d 666 ] (Craig) and statutory protocol pursuant to Penal Code 1347 by having a known recalcitrant 12 child witness testify before a jury and then when the child melts down in front of a jury - only then authorizing an examination by close-circuit television? [13] 14 (ECF No. 14-3 at 6 (footnote omitted).) The heading for the argument section reads: “THIS 15 PETITION SHOULD BE GRANTED BECAUSE THE TRIAL COURT’S ORDER 16 PERMITTING CHILD WITNESS TESTIMONY OUTSIDE THE COURTROOM 17 BY MEANS OF TWO-WAY CLOSED-CIRCUIT TELEVISION WITHOUT 18 PARTICULARIZED FINDINGS DENIED MYERS HIS CONSTITUTIONAL 19 RIGHT TO CONFRONTATION, DUE PROCESS AND RIGHT TO A FAIR 20 TRIAL.” (Id. at 7 (capitalization and emphasis in original).) 21 The Court finds Solis v. Garcia, 219 F.3d 922 (9th Cir. 2000), and Wooten v. Kirkland, [22] 540 F.3d 1019 (9th Cir. 2008), instructive. In Solis, the petitioner wrote in the penultimate 23 paragraph of his twenty-one-page brief in the California Supreme Court: 24 If review is granted, appellant wishes to brief the issues raised below and asserted here, 1) that important admissible and trustworthy defense evidence was kept 25 from the jury which evidence also showed that 2) a consciousness of guilt instruction based on hiding of the gun should never have been given; 3) A valid 26 defense instruction pinpointing appellant’s theory of the case was refused; 4) A defective reasonable doubt instruction, CALJIC 2.90, was used and that issue is 27 presently before the Supreme Court of the United States in Sandoval v. California, (1993) 509 U.S. 954 , [ 114 S.Ct. 40 ], 125 L.Ed.2d 788 [789]; 5) 1 Finally, the errors complained of above, individually and cumulatively denied appellant Due Process and a fair trial under federal and state constitutions. [2] 3 Solis, 219 F.3d at 930 (emphasis in original) (citation omitted). The Ninth Circuit found that the 4 petitioner did not fairly present his cumulative error claim to the California Supreme Court, 5 noting that “Solis’ petition did not label his cumulative error claim as an ‘issue’ in the contents 6 section of his brief, nor did he argue the claim or cite authority for it.” Id. 7 In Wooten, the petitioner “admit[ted] that his cumulative error claim was not set forth in 8 his petition for review before the California Supreme Court” but argued that a claim not named 9 in a petition is fairly presented if it is sufficiently related to or intertwined with an exhausted 10 claim. 540 F.3d at 1025 . The Ninth Circuit acknowledged “that a petitioner has ‘fairly presented’ 11 a claim not named in a petition if it is ‘sufficiently related’ to an exhausted claim. Claims are 12 ‘sufficiently related’ or ‘intertwined’ for exhaustion purposes when, by raising one claim, the 13 petition clearly implies another error.” Id. (citing Lounsbury v. Thompson, 374 F.3d 785 , 788 14 (9th Cir. 2004)). However, the Ninth Circuit found that Wooten’s cumulative error claim was not 15 sufficiently intertwined with his exhausted claims because “[c]umulative error comes into play 16 when no single trial error is, on its own, sufficiently prejudicial to warrant reversal” and 17 “[b]riefing a number of isolated errors that turn out to be insufficient to warrant reversal does not 18 automatically require the court to consider whether the cumulative effect of the alleged errors 19 prejudiced the petitioner.” Wooten, 540 F.3d at 1025 . 20 Wooten also relied on Solis, which it described as “suggest[ing] that a cumulative error 21 claim must be clearly identified in a petitioner’s brief before a state court to be exhausted” 22 because although “the petitioner in Solis explicitly mentioned his cumulative error claim in the 23 conclusion of his brief to the California Supreme Court . . . the isolated reference to cumulative 24 error was not sufficient to exhaust the claim.” Wooten, 540 F.3d at 1026 (citing Solis, 219 F.3d 25 at 930 ). Regarding the deficiencies of the petition set forth in Solis—“the cumulative error was 26 not labeled as an issue in the brief's table of contents and the petitioner did not argue cumulative 27 error or cite any authority on cumulative error”—the Ninth Circuit noted that “[t]he same can be said of Wooten’s petition before the California Supreme Court.” Wooten, 540 F.3d at 1026 . 1 Similar to Solis and Wooten, Petitioner’s petition for review in the California Supreme 2 Court “did not label his cumulative error claim as an ‘issue’ in the contents section of his brief, 3 nor did he argue the claim or cite authority for it.” Solis, 219 F.3d at 930 . Although Petitioner 4 attempts to excuse the fact that a cumulative error claim was not explicitly raised in the petition 5 for review by noting that “the Court of Appeal found no error, and therefore prejudice was never 6 addressed,” (ECF No. 15 at 5 (emphasis in original)), “[a]ll petitions must be read in context and 7 understood based on the particular words used,” and “for purposes of exhaustion, counseled 8 petitions in state court may, and sometimes should, be read differently from pro se petitions,” 9 Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc) (emphasis added). See Slack 10 v. McDaniel, 529 U.S. 473, 487 (2000) (“[T]he complete exhaustion rule is not to trap the 11 unwary pro se prisoner.”); Sanders v. Ryder, 342 F.3d 991, 999 (9th Cir. 2003) (“Peterson 12 makes clear that, for the purposes of exhaustion, pro se petitions are held to a more lenient 13 standard than counseled petitions.”). Although the Court recognizes that the issue of prejudice 14 was never addressed by the California Court of Appeal and appellate counsel argued that if the 15 California Supreme Court found error the matter should be remanded to allow the lower court to 16 assess prejudice, (ECF No. 14-3 at 21), appellate counsel still could have explicitly raised the 17 cumulative error claim for purposes of exhaustion. See Wooten, 540 F.3d at 1026 (“Wooten 18 recited three out of the four alleged substantive errors in his brief to the California Supreme 19 Court without developing any argument on those errors. Indeed, Wooten specified that he 20 included those errors in order to exhaust them for the purpose of bringing a federal habeas 21 petition.”). 22 Like the petitioner in Wooten, Petitioner contends that his cumulative error claim is 23 “intertwined” with his exhausted confrontation and due process claims such that his cumulative 24 error claim is exhausted as well, citing to Lounsbury, 374 F.3d 785 . (ECF No. 15 at 7.) 25 Lounsbury recognized that “[c]ompetency disputes can give rise to two distinct claims— 26 substantive and procedural—that trigger different analyses under the general heading of due 27 process.” 374 F.3d at 788 . “[T]he question [wa]s whether Lounsbury’s state court petition for 1 “Lounsbury worded his petition for review as a procedural challenge.” Lounsbury, 374 F.3d at 2 788. The Ninth Circuit found that “the clear implication of his claim was that by following a 3 constitutionally defective procedure, the state court erred in finding him competent,” and thus 4 concluded that “[w]here the substantive and procedural claims are as intertwined as they are 5 here, we hold that Lounsbury made a fair presentation to the state courts of his claim that he was 6 not competent to stand trial.” Id. (emphasis added). 7 Here, like in Wooten, the Court finds that Petitioner’s cumulative error claim is not 8 sufficiently related to or intertwined with the confrontation and due process claims that were 9 presented to the California Supreme Court to be considered fairly presented for exhaustion 10 purposes. The federal petition sets forth the cumulative error claim as follows: 11 GROUND THREE: If this Court finds that the individual errors are not so prejudicial as to amount to a deprivation of due process when considered 12 alone, Petitioner asks that this Court find that the errors complained of cumulatively produce a trial setting that is fundamentally unfair, resulting in 13 violations of Petitioner’s right to a fair trial under the Due Process clause of the Fifth and Fourteenth Amendments to the U.S. Constitution. Alcala v. 14 Woodford, 334 F.3d 862 (9th Cir. 2003). 15 Such errors include but are not limited to the trial court’s failure to follow the procedures set forth in Craig, supra, and California Penal Code section 1347; 16 denying Petitioner an opportunity to determine whether S.M. should testify at all at trial because she was an unavailable witness ( Cal. Evid. Code § 240 (a)(3), (6) 17 and (c)), or not competent to testify (§ 701(a)(1), (2)), before ruling whether she should testify via CCTV; denying Petitioner’s request for discovery of the 18 identities and reports of the counselors or therapists treating S.M. to determine the availability and competency as a witness and to determine why S.M. could not 19 testify in court; compelling S.M. to testify before the jury to determine her availability and whether she should testify via CCTV resulting in her emotional 20 meltdowns before the jurors; and failing to declare a mistrial after S.M.’s two emotional outbursts in front of the jury. [21] 22 (ECF No. 1 at 28.) Some of the errors encompassed in the cumulative error claim—denying an 23 opportunity to determine whether S.M. should testify because she was an unavailable witness or 24 not competent to testify pursuant to California Evidence Code sections 240 and 701 and denying 25 Petitioner’s request for discovery of the identities and reports of the counselors or therapists 26 treating S.M.—were not mentioned at all in the petition for review filed in the California 27 Supreme Court. Therefore, the Court finds that the cumulative error claim is not sufficiently 1 unexhausted. See Wooten, 540 F.3d at 1025 (“Claims are ‘sufficiently related’ or ‘intertwined’ 2 for exhaustion purposes when, by raising one claim, the petition clearly implies another error.” 3 (emphasis added) (citing Lounsbury, 374 F.3d at 788 )). 4 B. “Mixed” Petition 5 “Federal courts may not adjudicate mixed habeas petitions, that is, those containing both 6 exhausted and unexhausted claims.” Henderson v. Johnson, 710 F.3d 872, 873 (9th Cir. 2013). 7 The Court must dismiss without prejudice a mixed petition containing both exhausted and 8 unexhausted claims to give a petitioner an opportunity to exhaust the claims if he can do so. 9 Lundy, 455 U.S. at 522 . However, a petitioner may, at his option, withdraw the unexhausted 10 claims and go forward with the exhausted claims. See Anthony v. Cambra, 236 F.3d 568 , 574 11 (9th Cir. 2000) (“[D]istrict courts must provide habeas litigants with the opportunity to amend 12 their mixed petitions by striking unexhausted claims as an alternative to suffering dismissal.”). A 13 petitioner may also move to withdraw the entire petition and return to federal court when he has 14 finally exhausted his state court remedies. Additionally, a petitioner may also move to stay and 15 hold in abeyance the petition while he exhausts his claims in state court. See Rhines v. Weber, [16] 544 U.S. 269, 277 (2005); Kelly v. Small, 315 F.3d 1063 , 1070–71 (9th Cir. 2002). 17 Here, Petitioner contends that “[t]o stay the petition and require the petitioner to go back 18 and ask the state court to review for cumulative error, when they have already found no errors at 19 all, is a waste of time and judicial resources and would place an unreasonable burden on the 20 petitioner for no legitimate purpose.” (ECF No. 15 at 10.) Accordingly, the Court will 21 recommend that Petitioner be allowed to delete the unexhausted cumulative error claim and 22 proceed with his exhausted claims. 23 III. 24 RECOMMENDATION & ORDER 25 Based on the foregoing, the Court HEREBY RECOMMENDS that: 26 1. Respondent’s motion to dismiss (ECF No. 13) be GRANTED IN PART; and 27 2. Petitioner be allowed to delete the unexhausted cumulative error claim and proceed with 1 Further, the Court HEREBY ORDERS that the motion hearing scheduled for July 19, 2 | 2023, is VACATED. 3 This Findings and Recommendation is submitted to the United States District Court 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 5 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 6 | Within FOURTEEN (14) days after service of the Findings and Recommendation, any party 7 | may file written objections with the Court and serve a copy on all parties. Such a document 8 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies 9 |to the objections shall be served and filed within fourteen (14) days after service of the 10 | objections. The assigned District Judge will then review the Magistrate Judge’s ruling pursuant 11 | to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the 12 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 13 | 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [14] 15 IT IS SO ORDERED. FA. ee 16 | Dated: _ July 12, 2023 UNITED STATES MAGISTRATE JUDGE