(HC) Loyd v. Spearmen

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 DANIEL RAY LOYD, Case No. 18-cv-07228-HSG 8 Petitioner, ORDER GRANTING RESPONDENT’S MOTION TO DISMISS FOR FAILURE 9 v. TO EXHAUST STATE REMEDIES; REQUIRING PETITIONER TO MAKE 10 SPEARMEN, ELECTION 11 Respondent. Re: Dkt. No. 12 [12] 13 Petitioner Daniel Ray Loyd, an inmate at High Desert State Prison, in Susanville, 14 California, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a 15 conviction from Lake County Superior Court. Pending before the Court is respondent’s motion to 16 dismiss the petition for failure to exhaust state remedies. Dkt. No. 12. Petitioner has filed an 17 opposition, Dkt. No. 16, and respondent has filed a reply, Dkt. No. 17. For the reasons set forth 18 below, the Court GRANTS respondent’s motion to dismiss. 19 BACKGROUND 20 A Lake County Superior Court jury found petitioner guilty of first degree murder (Cal. 21 Penal Code § 187(a)); assault with a firearm ( Cal. Penal Code § 245 (a)(2)); possession of a 22 firearm by a felon ( Cal. Penal Code § 12021 (a)(1)); possession of ammunition by a felon (Cal. 23 Penal Code § 12316(b)(1)); and found true a special circumstance allegation that the murder was 24 committed during an attempted robbery ( Cal. Penal Code § 190.2 (a)(17)) and multiple gun use 25 allegations. The court found true prior conviction and prior prison term allegations, and sentenced 26 petitioner to a term of life in prison without the possibility of parole and an additional term of 26 27 years, 4 months. Dkt. No. 12-1 at 37. 1 sentence. Dkt. No. 12-1 at 26-62. 2 On January 12, 2018, petitioner submitted a petition for review to the California Supreme 3 Court, challenging his convictions and sentence on the following grounds: (1) the trial court’s 4 erroneous instructions on felony murder causation and the trial court’s failure to instruct on 5 provocative conduct murder deprived him of due process, a fair trial and a jury verdict under the 6 Sixth and Fourteenth Amendments, (2) the trial court’s failure to instruct on lesser-included 7 offenses to first-degree felony murder based on the conflicting evidence as to whether a robbery 8 occurred deprived him of a fair trial; (3) the trial court’s refusal to permit the jury to have defense 9 counsel’s argument regarding proximate cause reread after the jury instructions had been given 10 deprived petitioner of due process and his Sixth Amendment right to effective assistance of 11 counsel; and (4) the trial court’s erroneous admission of his custodial statement notwithstanding 12 his invocation of his right to counsel deprived him of his Fifth and Fourteenth Amendment rights 13 to freedom from self-incrimination. Dkt. No. 12-1 at 3-67. On March 14, 2018, the California 14 Supreme Court denied the petition for review. Dkt. No. 12-1 at 69. 15 On May 4, 2018, petitioner filed a habeas petition, Case No. A154216, in the California 16 Court of Appeal, First Appellate District, which was denied on May 16, 2018, without prejudice to 17 the petition first being filed in superior court.1 Dkt. No. 12-1 at 73. 18 On July 9, 2018, petitioner filed another habeas petition, Case No. A154744, in the 19 California Court of Appeal, First Appellate District, which was denied on July 12, 2018.2 Dkt. 20 No. 12-1 at 75. 21 On September 24, 2018,3 Petitioner filed a petition for review with the California Supreme 22 Court seeking review of the California Court of Appeal’s July 12, 2018 denial of his state habeas [23] 1 The May 4, 2018 habeas petition is not part of the record before the Court, so it is unclear what [24] claims were raised in this petition. 2 The July 9, 2018 habeas petition is not part of the record before the Court, so it is unclear what [25] claims were raised in this petition. 3 In determining when a pro se state or federal petition is filed, the “mailbox” rule applies. A [26] petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing. Ramirez v. Yates, 571 F.3d 993 , 996 n.1 (9th Cir. 2009); Jenkins v. Johnson, 330 F.3d 27 1146 , 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 1 petition. The petition for review challenged his conviction on the following grounds: 2 (1) deprivation of due process and Sixth Amendment right to counsel when trial counsel admitted 3 that petitioner was guilty of all charges; (2) ineffective assistance of counsel where counsel 4 acknowledged petitioner’s guilt during closing argument, failed to investigate a potentially 5 meritorious defense, and failed to cross-examine witnesses effectively; (3) ineffective assistance of 6 counsel where counsel admitted in closing argument that petitioner was guilty of robbery leaving 7 the jury with no choice but to find petitioner guilty of felony murder; (4) ineffective assistance of 8 counsel where counsel performed an inadequate investigation by failing to obtain an expert 9 witness that could testify that petitioner’s pistol could not have shot Ms. Quiett if she were 10 standing and by failing to obtain the 911 call log and the CAD log; (5) ineffective assistance of 11 counsel where counsel had inadequate knowledge of the law in that counsel failed to understand 12 the principle of felony murder; (6) ineffective assistance of counsel where trial counsel effectively 13 failed to assert a legal defense when counsel asserted a defense of foreseeability in felony murder 14 case while also admitting that petitioner committed the robbery and caused the death of the victim; 15 (7) ineffective assistance of counsel where counsel admitted petitioner was guilty of all crimes 16 without a tactical reason; (8) ineffective assistance of counsel where counsel refused to assert 17 second shooter defense; (9) ineffective assistance of counsel where counsel called petitioner to 18 testify regarding a defense that trial counsel chose to abandon; and (10) cumulative error. Dkt. 19 No. 12-1 at 77-98. 20 On September 26, 2018, the Clerk of the California Supreme Court returned the petition 21 for review to petitioner unfiled with the following cover letter: “We hereby return unfiled your 22 petition for review, which we received on September 26, 2018. A check of the Court of Appeal 23 docket shows that an order denying petition for writ of habeas corpus [was] filed on July 12, 2018. 24 This court lost jurisdiction to act on any petition for review after August 13, 2018. (See Cal Rules 25 of Court, rule 8.500(e).) Without this jurisdiction, this court is unable to consider your request for 26 legal relief.” Dkt. No. 12-1 at 101. [27] 1 On November 8, 2018,4 petitioner filed the instant petition in the Eastern District of 2 California. Dkt. No. 1. On November 29, 2018, this case was transferred from the Eastern 3 District of California to this district. Dkt. No. 3. On January 31, 2019, this Court found that the 4 petition stated the following cognizable claims for federal habeas relief: (1) the trial court erred by 5 failing to correctly instruct the jury on the causation required for felony-murder and for failing to 6 instruct the jury that if the felony-murder rule did not apply, the murder charge was governed by 7 the provocative act murder rule; (2) the trial court erred by failing to instruct the jury on lesser 8 included offenses; (3) the trial court erred in failing to read to the jury defense counsel’s closing 9 argument regarding proximate cause as requested by the jury; (4) the trial court erred by admitting 10 petitioner’s custodial statement made after he invoked his right to counsel; (5) trial counsel 11 rendered ineffective assistance on multiple grounds; and (6) trial counsel’s errors resulted in 12 cumulative error. Dkt. No. 10. 13 DISCUSSION 14 Respondent has filed a motion to dismiss this petition as unexhausted, arguing that the 15 ineffective assistance of counsel claims and the cumulative error claim are not exhausted. Dkt. 16 No. 12. Petitioner argues that the Court should not dismiss this petition as unexhausted because 17 he has made a “valiant attempt to follow court procedures and exhaust all claims in accordance to 18 rules of court,” and because the cover page of the habeas petition filed in the California Court of 19 Appeals was incorrectly labelled. Dkt. No. 16 at 3-4. In the alternative, petitioner requests that he 20 be granted leave under Rhines v. Weber, 544 U.S. 269, 277-78 (2005) to “have all claims 21 addressed in a[n] original habeas proceeding with properly titled cover page, as petitioner now 22 understands that there is a difference from a petition for review, and a petition for writ of habeas 23 corpus, with different filing timelines.” Dkt. No. 16 at 4. The parties agree that Claim Nos. 1 24 through 4 were exhausted by the January 12, 2018 petition for review of the direct appeal. 25 A. Legal Standard 26 Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings [27] 1 either the fact or length of their confinement are first required to exhaust state judicial remedies, 2 either on direct appeal or through collateral proceedings, by providing the highest state court 3 available with a fair opportunity to rule on the merits of each and every claim they seek to raise in 4 federal court. See 28 U.S.C. § 2254 (b)–(c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). The 5 state’s highest court must be given an opportunity to rule on the claims even if review is 6 discretionary. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (petitioner must invoke “one 7 complete round of the State’s established appellate review process.”). To comply with the fair 8 presentation requirement, a claim must be raised at every level of appellate review; raising a claim 9 for the first time on discretionary review to the state’s highest court is insufficient. Casey v. 10 Moore, 386 F.3d 896, 918 (9th Cir. 2004) (holding that where petitioner only raised federal 11 constitutional claim on appeal to the Washington State Supreme Court, claim not fairly presented). 12 The exhaustion-of-state-remedies doctrine reflects a policy of federal-state comity to give 13 the state “an initial opportunity to pass upon and correct alleged violations of its prisoners’ federal 14 rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation and citation omitted). 15 However, a district court may not grant the writ unless state court remedies are exhausted or 16 exhaustion there is either “an absence of available state corrective process” or such process has 17 been “rendered ineffective.” See 28 U.S.C. § 2254 (b)(1)(A)–(B). A federal district court must 18 dismiss a federal habeas petition containing any claim as to which state remedies have not been 19 exhausted. Rhines v. Weber, 544 U.S. 269, 273 (2005). 20 The exhaustion requirement is satisfied only if a federal claim has been “fairly presented” 21 to the state courts. Picard, 404 U.S. at 275 . A federal claim is “fairly presented” to the state 22 supreme court if it is raised by a procedural method which complies with the state appellate rules 23 and involves a “permissible method of raising an issue in [the state supreme court].” Farmer v. 24 Baldwin, 563 F.3d 1042, 1044 (9th Cir. 2009) (federal claims fairly presented when petitioner 25 “complied with the appellate rules” by referring to brief with attachment containing federal claims 26 in his petition for review before Oregon Supreme Court). However, it does not constitute “fair 27 presentation” if the claim is raised by a procedural method which makes it unlikely that the claim 1 by way of petition to state supreme court for allocatur, which under state procedure may be 2 considered only when “there are special and important reasons therefor,” insufficient to exhaust); 3 Kibler v. Walters, 220 F. 3d 1151, 1153 (9th Cir. 2000) (where state habeas petitioner failed to 4 satisfy procedural requirements for presentation of his claims to Washington Supreme Court, he 5 failed to fairly present his claims for purposes of federal habeas corpus review). 6 B. Analysis 7 The Court agrees that petitioner has failed to exhaust his state remedies for his claims of 8 ineffective assistance of counsel and cumulative error. Petitioner’s September 2018 petition for 9 review failed to satisfy the procedural requirements for the presentation of claims to the California 10 Supreme Court. Rule 8.500(e) of the California Rules of Courts requires that a petition for review 11 be served and filed within ten days after the Court of Appeal decision is final. Cal. R. Ct. 12 8.500(e). Under Rule 8.366(b), a Court of Appeal decision in a criminal appeal is final thirty days 13 after filing. Cal. R. Ct. 8.366(b). Petitioner’s 2018 petition for review sought review of the 14 California Court of Appeal’s July 12, 2018 denial of his habeas petition and was filed on 15 September 24, 2018, over a month after the appellate court’s decision became final. Petitioner’s 16 2018 petition for review therefore failed to comply with the procedural requirements set forth in 17 Rule 8.500(e) for the presentation of claims to the California Supreme Court. 18 Petitioner argues that his failure to exhaust should be excused because he made a sincere 19 attempt to timely exhaust his state remedies; that he did not understand that the California 20 Supreme Court’s statement that it lacked jurisdiction to consider his claims meant that his claims 21 had not been considered by the California Supreme Court; and that his petition for review would 22 have been considered by the California Supreme Court if he had not mislabeled his petition for 23 review. Dkt. No. 16. The Court does not have discretion to ignore the exhaustion requirement. 24 Federal law and the United States Supreme Court require the dismissal of a federal habeas petition 25 that contains a claim (or claims) as to which state remedies have not been exhausted. See Rhines, 26 544 U.S. at 273. The only exception to this requirement is where there is an absence of available 27 state corrective process or where such process has been rendered ineffective, which is not the case 1 confusion regarding the law does not excuse the failure to exhaust state remedies. See Rose, 455 2 U.S. at 520 (exhaustion requirement applies equally to pro se litigants because “[j]ust as pro se 3 petitioners have managed to use the federal habeas machinery, so too should they be able to 4 master this straightforward exhaustion requirement”); see also Barbarin v. Madden, No. ED CV 5 17-00257-VBF-LAL, 2018 WL 6303889 , at *1 (C.D. Cal. Nov. 29, 2018) (“Although petitioner is 6 proceeding pro se, that does not excuse his noncompliance with exhaustion and pleading 7 requirements.”). While petitioner is correct that state habeas petitions are not subject to Rule 8 8.500(e), the record does not support petitioner’s claim that the return of his September 2018 9 petition for review was solely due to an error in labelling the pleading. Petitioner clearly stated in 10 the body of the pleading that he was seeking review of the July 2018 state appellate court denial of 11 his habeas petition. In other words, his pleading clearly petitioned the California Supreme Court 12 for review of the state appellate court’s July 2018 decision. The California Supreme Court 13 properly considered the pleading as a petition for review and subjected it to the procedural 14 requirements set forth in Rule 8.500(e). Accordingly, the Court finds that petitioner has not 15 exhausted his state court remedies for his claims of ineffective assistance of counsel and 16 cumulative error. 17 C. Rhines Stay 18 The instant petition contains both exhausted and unexhausted claims and therefore is what 19 is referred to as a “mixed” petition. See Rhines, 544 U.S. at 277 . Federal courts are required to 20 dismiss mixed petitions. See Rose, 455 U.S. at 510 (every claim raised in federal habeas petition 21 must be exhausted). Due to a critical one-year statute of limitations on the filing of federal habeas 22 petitions under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), see 28 23 U.S.C. § 2244 (d), the Court is reluctant to dismiss the mixed petition (and possibly cause a later24 filed petition to be time-barred) without giving petitioner the opportunity to elect whether to 25 proceed with just his exhausted claims, or to try to exhaust the unexhausted claims before having 26 this Court consider all his claims. Accordingly, instead of an outright dismissal of the action, the 27 Court will allow Petitioner to choose whether he wants to: (1) dismiss the unexhausted claims and 1 state court to exhaust all claims before filing a new federal petition presenting all of his claims, or 2 (3) file a motion for a stay of these proceedings while he exhausts his unexhausted claims in the 3 California Supreme Court. 4 Petitioner is cautioned that the options have risks which he should take into account in 5 deciding which option to choose. If he chooses option (1) and goes forward with only his 6 exhausted claims, he may face dismissal of any later-filed petition. See 28 U.S.C. § 2244 (b). If he 7 chooses option (2), dismissing this action and returning to state court to exhaust all claims before 8 filing a new federal petition, his new federal petition might be rejected as time-barred. See 28 9 U.S.C. § 2244 (d). If he chooses option (3), he must file a motion in this court to obtain a stay and 10 (if the motion is granted) then must act diligently to file in the California Supreme Court, to obtain 11 a decision from the California Supreme Court on his unexhausted claims, and to return to this 12 court. And under option (3), this action stalls: this Court will do nothing further to resolve the 13 case while petitioner is diligently seeking relief in state court. 14 If petitioner chooses to request a stay, he may seek a stay pursuant to either Rhines v. 15 Weber, 544 U.S. 269, 277-78 (2005), or Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). A 16 petitioner seeking a stay pursuant to Rhines is required to show (1) “good cause” for his failure to 17 exhaust his claims in state court; (2) that his unexhausted claims are not “plainly meritless”; and 18 (3) that he has not engaged in “intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278 . 19 A petitioner seeking a stay pursuant to Kelly is not required to show good cause as under Rhines, 20 but rather must show that the amendment of any newly exhausted claims back into the petition 21 satisfies both Mayle v. Felix, 545 U.S. 644, 655 (2005), by sharing a “common core of operative 22 facts,” and Duncan v. Walker, 533 U.S. 167 (2001), by complying with the statute of limitations. 23 King v. Ryan, 564 F.3d 1133, 1142-43 (9th Cir. 2009) (finding district court’s dismissal of 24 unexhausted claims was improper because petitioner was not required to show good cause to avail 25 himself of the Kelly three-part procedure but affirming the dismissal as harmless because the 26 unexhausted claims did not relate back to the claims in the original petition that were fully 27 exhausted at the time of filing). “Pursuant to the Kelly procedure, (1) a petitioner amends his 1 fully exhausted petition, allowing the petitioner the opportunity to proceed to state court to exhaust 2 the deleted claims; and (3) the petitioner later amends his petition and reattaches the newly 3 exhausted claims to the original petition.” King, 564 F.3d at 1134 (citing Kelly, 315 F.3d at 1070 - 4 71). 5 In discussing Rhines stays, the United States Supreme Court has cautioned district courts 6 against being too liberal in allowing a stay because a stay works against several of the purposes of 7 the AEDPA in that it “frustrates AEDPA’s objective of encouraging finality by allowing a 8 petitioner to delay the resolution of the federal proceeding” and “undermines AEDPA’s goal of 9 streamlining federal habeas proceedings by decreasing a petitioner’s incentive to exhaust all his 10 claims in state court prior to filing his federal petition.” Rhines, 544 U.S. at 277 . A stay and 11 abeyance “is only appropriate when the district court determines there was good cause for the 12 petitioner’s failure to exhaust his claims first in state court,” the claims are not meritless, and there 13 are no intentionally dilatory litigation tactics by the petitioner. Id. at 277–78. Any stay must be 14 limited in time to avoid indefinite delay. Id. Reasonable time limits would be 30 days to get to 15 state court, as long as reasonably necessary in state court, and 30 days to get back to federal court 16 after the final rejection of the claims by the state court. See id. at 278 ; Kelly v. Small, 315 F.3d at 17 1071. If Petitioner moves for a stay, he must show that he satisfies either the Rhines criteria or the 18 King/Kelly requirements. 19 CONCLUSION 20 For the reasons stated above, the Court orders as follows. 21 1. The Court GRANTS respondent’s motion to dismiss the petition for failure to 22 exhaust state remedies. 23 2. Within twenty-eight (28) days of the date of this order, Petitioner must file a 24 notice with the Court in which he states whether he elects to: (1) dismiss the unexhausted claims 25 and go forward in this action with only the remaining claims, or (2) dismiss this action and return 26 to state court to exhaust all of his claims before returning to federal court to present all of his 27 claims in a new petition, or (3) move for a stay of these proceedings while he exhausts his state 1 If he chooses Option (1) or Option (2), his filing need not be a long document; it is 2 sufficient if he files a one-page document entitled “Election By Petitioner’ and states simply: 3 “Petitioner elects to proceed under Option ____.”” Petitioner would have to insert a number in place 4 || of the blank space to indicate which of the first two options he chooses. 5 If he chooses Option (3), Petitioner must file within twenty-eight (28) days of this order, a 6 || motion for a stay in which he explains whether he is seeking a Rhines stay or a King/Kelly stay. If 7 he seeks a Rhines stay, he must explain why he failed to exhaust his unexhausted claim(s) in state 8 court before presenting them to this court, and show that his claims are not meritless and that he is 9 || not intentionally delaying resolution of his constitutional claims. If he wants to file a motion 10 || under King/Kelly to amend his petition (to delete the unexhausted claim(s)) and to stay this action 11 while he exhausts state court remedies for the unexhausted claim(s), he must do so show that the q 12 amendment of any newly exhausted claims back into the petition would share a common core of 13 operative facts and comply with AEDPA’s statute of limitations. S 14 If petitioner does not choose one of the three options or file a motion by the deadline, this 3 15 action will proceed solely on the exhausted claims — Claim Nos. 1, 2, 3 and 4. 16 This order terminates Dkt. No. 12. 2 17 IT IS SO ORDERED. 18 || Dated: 1/15/2020 19 7 Hauparred Lh bh HAYWOOD S. GILLIAM, JR. United States District Judge