Smith v. Gamboa

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA — 10 — 11 RONALD J. SMITH, Case No.: 22-cv-00856-JLS-DDL 12 Petitioner, REPORT AND RECOMMENDATION 13 v. FOR ORDER CONDITIONALLY GRANTING RESPONDENTS’ 14 MARTIN GAMBOA, Warden, and MOTION TO DISMISS ROB BONTA, Attorney General, — 15 — Respondents. [Dkt. No. 7] — 16 — — 17 — 18 Before the Court is Respondents Martin Gamboa’s and Rob Bonta’s 19 (“Respondents”) Motion to Dismiss Petition for Writ of Habeas Corpus (the “Motion 20 to Dismiss”) by. Dkt. No. 7. Petitioner Ronald J. Smith (“Petitioner”), a state 21 prisoner proceeding pro se, opposes. Dkt. No. 9. This Report and 22 Recommendation to United States District Judge Janis L. Sammartino pursuant to — 23 — 28 U.S.C. § 636 (b) and Civil Local Rules 72.1 and HC 2. For the reasons stated 24 below, the undersigned RECOMMENDS that the District Court conditionally 25 GRANT Respondents’ Motion to Dismiss and DISMISS the Petition unless 26 Petitioner can timely cure his Petition. 27 /// 28 /// 1 I. 2 BACKGROUND1 3 In April 2019, a jury convicted Petitioner of 13 counts of lewd acts on a child 4 for molesting his daughter and stepdaughter. Dkt. No. 8-1 at 22;2 Dkt. No. 8-6 at 5 2. After denying Petitioner’s motion for a new trial, the trial court sentenced him to 6 two concurrent terms of 15 years to life. Dkt. No. 8-1 at 22. 7 Petitioner, through counsel, appealed the judgment to the California Court of 8 Appeal. See Dkt. No. 8-1. Petitioner raised six challenges to his conviction: One, 9 that a prospective juror’s statements during voir dire were likely to bias other jurors 10 and deprived Petitioner of his constitutional right to an impartial jury; two, that the 11 trial court unreasonably restricted the evidence Petitioner could present at trial;3 12 three, that the trial court erred by allowing inadmissible, irrelevant and highly 13 prejudicial testimony from a child sexual abuse expert; four, that California Criminal 14 Jury Instruction (“CALCRIM”) No. 1193 impermissibly reduces the prosecution’s 15 burden of proof and should not have been used; five, that the trial court’s 16 cumulative errors undermined the fundamental fairness of Petitioner’s trial; and 17 six, that the trial court violated Petitioner’s due process rights in imposing certain 18 fines and penalties upon him. See generally id. On September 7, 2021, the Court 19 of Appeal affirmed the judgment (with one exception not relevant to the issues — 20 — — 21 — — 22 — 1 The following factual and procedural summary is taken from the exhibits to the 23 Petition and Respondents’ Lodgments. See Dkt. Nos. 1, 8. 24 2 All citations are to the page numbers generated by the Court’s CM/ECF system. 25 3 This argument referred specifically to records collected from the global positioning system (“GPS”) in Petitioner’s work truck (hereafter the “GPS — 26 — Evidence”), which he claimed “provided, for any given date, the starting address 27 and time the vehicle first moved, and then an ending address and time when the vehicle reached the end of that trip” and could be used to test one victim’s — 28 — 1 before the Court), finding Petitioner’s “arguments on appeal [were] without merit.” 2 Dkt. No. 8-6 at 2. 3 Petitioner, again through counsel, filed a petition for review by the California 4 Supreme Court. The petition for review raised two issues, stated as follows: — 5 — 1. Did the trial court commit error by excluding [the GPS Evidence] 6 proffered by the defense that went to directly refuting the testimony 7 of the complaining witness, J.? 8 2. Did the trial court violate petitioner’s federal and state due process 9 rights and the Equal Protection Clause by imposing fines and fees without determining if he had the ability to pay? — 10 — 11 See Dkt. No. 8-7 at 7. On November 10, 2021, the California Supreme Court 12 denied Petitioner’s petition for review without discussion. See Dkt. No. 8-8. 13 On June 9, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this 14 District, challenging his conviction (the “Petition”). Dkt. No. 1. Petitioner raises 15 four grounds for federal habeas corpus relief: (1) that the trial court denied him his 16 constitutional right to present a complete and effective defense by excluding the 17 GPS Evidence; (2) that the “Attorney General’s Brief . . . in all contents . . . were 18 wrong” because witnesses either “changed” their “story” or denied the charges 19 against Petitioner; (3) that the trial court’s use of CALCRIM No. 1193 was 20 unconstitutional; and (4) that the trial court’s determination that a prospective 21 juror’s comments did not taint the jury pool was erroneous and deprived him of the 22 right to a fair trial. See id. at 6-9 . 23 On August 30, 2022, Respondents filed the Motion to Dismiss now before 24 the Court. Respondents argue that Petitioner’s second, third and fourth grounds — 25 — — 26 — — 27 — 4 The Court of Appeal vacated certain unpaid fees levied against Petitioner due to — 28 — 1 for relief “have never been presented to the California Supreme Court for 2 consideration.” See Dkt. No. 7-1 at 2-3. As such, Respondents contend the 3 Petition includes both exhausted and unexhausted claims – a so-called “mixed” 4 petition – and must be dismissed. See id. at 3 . 5 On October 20, 2022, the Court docketed Petitioner’s “Opposition to Grant 6 This Federal Writ of Habeas Corpus,” dated October 16, 2022, which the Court 7 construes as an opposition to Respondents’ Motion to Dismiss. In his Opposition, 8 Petitioner reiterates his arguments regarding the exclusion of GPS Evidence at 9 trial. See generally id. 10 The Court has reviewed the Petition, the parties’ moving papers and the 11 lodgments thereto. As set forth below, the Court RECOMMENDS that the District 12 Court conditionally GRANT Respondents’ Motion to Dismiss unless Petitioner 13 elects to take steps to cure his Petition. 14 II. 15 LEGAL STANDARDS 16 “An application for a writ of habeas corpus on behalf of a person in custody 17 pursuant to the judgment of a State court shall not be granted unless it appears 18 that . . . the applicant has exhausted the remedies available in the courts of the 19 State . . ..” 28 U.S.C. § 2254 (b)(1)(A). “[W]hile not a jurisdictional requirement,” 20 the rule requiring complete exhaustion “is grounded in principles of comity” and 21 recognizes the role of state courts in enforcing federal constitutional rights. See 22 Castille v. Peoples, 489 U.S. 346, 349 (1989) (citations omitted). 23 To satisfy the exhaustion requirement, a petitioner must “provid[e] the 24 highest state court with an opportunity to rule on the merits of his federal claims,” 25 or “show[] that at the time petitioner filed a habeas petition in federal court, he had 26 no state remedies available and had not deliberately bypassed them.” McQuown 27 v. McCartney, 795 F.2d 807, 809 (9th Cir. 1986) (citation omitted). The 28 requirement that a petitioner has exhausted his state court remedies is satisfied 1 when the petitioner has “ʻfairly presented’ his federal claim to the highest state 2 court with jurisdiction to consider it,” meaning that he has “described to the state 3 courts not only the operative facts upon which the claim is based, but also the 4 specific federal constitutional right allegedly violated.” See Roberts v. DiCarlo, 296 5 F. Supp. 2d 1182, 1186 (C.D. Cal. 2003) (citing Picard v. Connor, 404 U.S. 270 , 6 275 (1971) and Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). 7 The Supreme Court mandates that “a district court must dismiss habeas 8 petitions containing both unexhausted and exhausted claims.” Rose v. Lundy, 455 9 U.S. 509, 522 (1982) (emphasis added). Stated simply, “[f]ederal courts may not 10 adjudicate mixed habeas petitions, that is, those containing both exhausted and 11 unexhausted claims[,]” on their merits. Henderson v. Johnson, 710 F.3d 872 , 873 12 (9th Cir. 2013); accord Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) 13 (noting that the Court “may review the merits of Petitioner’s habeas petition only if 14 he exhausted state court remedies”). This directive is longstanding and 15 unambiguous. See Szeto v. Rushen, 709 F.2d 1340, 1341 (9th Cir. 1983) (noting 16 that the “direction to dismiss such ‘mixed petitions’ is clear and unequivocal, and 17 leaves no discretion to consider hypothetically the claims which had been 18 exhausted.”). 19 III. 20 DISCUSSION 21 A. The Petition Must Be Dismissed for Failure to Exhaust State Remedies 22 Respondents assert that the Petition “must be dismissed because it contains 23 unexhausted claims.” Dkt. No. 7-1 at 5. The Court agrees. As noted, Petitioner 24 raises four grounds for relief in his Petition. Dkt. No. 1. Although Petitioner 25 indicated in his Petition that he raised each of these grounds for relief in the 26 California Supreme Court, see id. at 6-9, a review of the record demonstrates 27 otherwise. 28 /// 1 It is readily apparent from the record that Petitioner exhausted his first ground 2 for relief, the assertedly improper exclusion of the GPS Evidence. In the Court of 3 Appeal, Petitioner argued that those records were “highly probative,” that their 4 probative value was not outweighed by their potential to cause prejudice or waste 5 time, and that any prejudicial risk was insufficient to eclipse Petitioner’s 6 “constitutional right to present a complete defense.” See Dkt. No. 8-1 at 55-64. 7 The Court of Appeal considered these arguments, explicitly recognizing that 8 Petitioner’s argument “implicate[d] his constitutional right to present a defense,” 9 see Dkt. No. 8-6 at 26 n.8, but ultimately disagreed with Petitioner. See id. at 2810 29. Seeking review in the California Supreme Court, Petitioner again argued that 11 the trial court’s exclusion of the GPS Evidence “denied petitioner his constitutional 12 right to present a full defense” and that “the error was prejudicial and requires 13 reversal.” Dkt. No. 8-7 at 12; see also id. at 12-15 (Petitioner’s argument in support 14 of reversal). The Court finds, therefore, that Petitioner “alerted the state court that 15 his claims rested on the federal Constitution,” and gave the state courts “an 16 opportunity to pass upon and correct [any] violation of [his] federal rights.” See 17 Fields, 401 F.3d at 1020-21 (describing prerequisites to proper exhaustion) 18 (citations omitted). 19 The same cannot be said, however, for Petitioner’s other three asserted 20 grounds for relief. For example, Petitioner’s second ground for relief is that the 21 case against him was based on “lies.” Dkt. No. 1 at 7. Petitioner states that one of 22 his victims (his stepdaughter) stated she “hated him” and that the other victim (his 23 daughter) stated “over 20 times . . . that this child molestation allegation never 24 happened to her.”5 Id. Petitioner further states that “the charges” against him — 25 — — 26 — 27 5 The Court also observes that Petitioner appears to have highlighted in the trial transcript appended to the Petition instances in which his daughter denied that he — 28 — 1 “should have been dropped” and urges the Court to “throw out the [w]hole trial.” 2 Dkt. No. 1 at 7. It is difficult to discern precisely what constitutional error Petitioner 3 complains of, but regardless, he does not appear to have presented the issue in 4 either of his state court appeals. See generally Dkt. No. 8-1 (Petitioner’s Opening 5 Brief in the Court of Appeal); Dkt. No. 8-7 (Petitioner’s Petition for Review to the 6 California Supreme Court). Exhaustion requires that the Petitioner give notice to 7 the state court that “he [is] making a claim under the U.S. Constitution 8 . . . and describe ‘both the operative facts and the federal legal theory on which his 9 claim is based,’” thereby providing the state court “a ‘fair opportunity’ to apply 10 controlling legal principles to the facts bearing upon his constitutional claim.” 11 Castillo v. McFadden, 399 F.3d 993, 998-99 (9th Cir. 2005) (citations omitted). As 12 to his assertion that the case against him was based on “lies,” Petitioner did none 13 of those things. The Court therefore finds that Petitioner failed to exhaust his 14 available remedies in state court with respect to his second ground for relief, as 15 required by the statute. See 28 U.S.C.A. § 2254 (b)(1)(A). 16 Petitioner’s third and fourth grounds for relief are likewise not exhausted. “A 17 state prisoner seeking relief with respect to a California conviction is required to 18 ‘fairly present’ his federal claims to the California Supreme Court.” Pombrio v. 19 Hense, 631 F.Supp.2d 1247, 1250 (C.D. Cal. 2009) (citations omitted). Here, 20 Petitioner argued in the Court of Appeal that the use of CALCRIM No. 1193 21 violated his constitutional rights (third ground for relief), see Dkt. No. 8-1 at 99-112, 22 and that a prospective juror’s unchecked comments during voir dire deprived 23 Petitioner of a constitutionally mandated impartial jury (fourth ground for relief). 24 See id. at 34-50. However, these arguments were rejected by the Court of Appeal, — 25 — — 26 — 27 did anything to make her feel “uncomfortable,” and statements by his stepdaughter demonstrating that she at times did not remember details of his abuse. See — 28 — 1 see Dkt. No. 8-6 at 13-24 and 41-46, and Petitioner did not thereafter present them 2 to the California Supreme Court for review. See generally Dkt. No. 8-7. “[A] claim 3 is unexhausted where the petitioner did not fairly present either the factual or the 4 legal basis for the claim to the state’s highest court.” Rollins v. Super. Ct. of Los 5 Angeles, 706 F. Supp. 2d 1008, 1011 (C.D. Cal. 2010) (citation omitted). 6 Accordingly, the Court finds that Petitioner failed to exhaust his third and fourth 7 grounds for relief. 8 B. Petitioner Should Be Afforded an Opportunity to Cure His Petition 9 Because Petitioner failed to exhaust his second, third and fourth grounds for 10 habeas relief as stated in his Petition, the Court finds that the Petition must be 11 dismissed pursuant to the foregoing controlling authority. However, the Supreme 12 Court and the Ninth Circuit each hold that a petitioner should be given the 13 opportunity to amend or otherwise cure a mixed petition for habeas corpus and 14 return to federal court with a petition that states only fully exhausted claims. See, 15 e.g., See Rose, 455 U.S. at 510 (holding that district courts must “leav[e] the 16 petitioner with the choice of returning to state court to exhaust his claims or . . . 17 amending or resubmitting the habeas petition”); Ybarra v. McDaniel, 656 F.3d 984 , 18 997 (9th Cir. 2011) (holding that “[i]f a habeas petition is ‘mixed’ . . . a district court 19 must dismiss it, leaving the petitioner an option to either abandon the unexhausted 20 claims or return to state court to exhaust them”) (citing Rose, 455 U.D. at 510); 21 Henderson, 710 F.3d at 873 (“a petitioner who files a mixed petition must, at a 22 minimum, be offered leave to amend the petition to delete any unexhausted claims 23 and to proceed on the exhausted claims”); Anthony v. Cambra, 236 F.3d 568 , 574 24 (9th Cir. 2000) (same); accord Butler v. Long, 752 F.3d 1177, 1181 (9th Cir. 2014), 25 as amended on denial of reh’g and reh’g en banc (June 24, 2014) (finding error 26 where the district court dismissed petition without leave to amend). 27 Petitioner may try to cure his Petition in one of several ways. In describing 28 these options, the undersigned makes no finding as to whether Petitioner could or 1 should avail himself of any of them. It is not the Court’s role to provide legal advice 2 to Petitioner and the decision as to how to proceed belongs to Petitioner and 3 Petitioner alone. See Pliler v. Ford, 542 U.S. 225, 231 (2004) (noting that “[d]istrict 4 judges have no obligation to act as counsel or paralegal to pro se litigants” or to 5 deliver “personal instruction . . . [regarding] procedure”). 6 First, Petitioner may elect to proceed only on his exhausted claims by filing 7 an amended petition as to his first ground for relief only, and deleting the second, 8 third and fourth grounds for relief. The Court notes that if Petitioner abandons his 9 unexhausted claims, he may lose the ability to ever raise them in federal court. 10 See 28 U.S.C. § 2244 (a)-(b). 11 Second, Petitioner may file a motion to stay-and-abey under Rhines v. 12 Weber, 544 U.S. 269 (2005), if Petitioner believes he can make the required 13 showings that: (1) there is good cause for his failure to exhaust grounds two, three 14 and four in state court; (2) his unexhausted claims are not “plainly meritless;” and 15 (3) he has not engaged in “abusive litigation tactics or intentional delay.” See id. 16 at 277-78. 17 Third, Petitioner may seek a stay under Kelly v. Small, 315 F.3d 1063 (9th 18 Cir. 2003) (as amended), overruled on other grounds as recognized by Robbins v. 19 Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). This would require Petitioner to 20 voluntarily dismiss grounds two, three, and four, request the Court stay the then21 fully exhausted Petition, and return to state court to attempt to exhaust the 22 unexhausted claims while the federal proceeding is held in abeyance – with the 23 understanding that Petitioner will be allowed to amend any newly exhausted claim 24 back into the Petition only if it is timely under 28 U.S.C. § 2244 (d)(1) or “relat[es] 25 back” to the original exhausted claim. See Mayle v. Felix, 545 U.S. 644 , 664 26 (2005). 27 Fourth, Petitioner may move to voluntarily dismiss his entire federal petition 28 and return to state court to exhaust his unexhausted claims. Petitioner may then 1 file a new federal petition containing only exhausted claims. See Rose, 455 U.S. 2 at 510 . Any new federal petition must be filed within the statute of limitations, which 3 expires one year from when Petitioner’s conviction became final unless he can 4 show that statutory or equitable tolling applies. See 28 U.S.C. §2244 (d)(1)(A)-(D); 5 see also Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that AEDPA’s one6 year statute of limitations is subject to equitable tolling in “extraordinary 7 circumstances”). 8 IV. 9 CONCLUSION and RECOMMENDATION 10 For the reasons stated above, the Court finds that the Petition contains a mix 11 of exhausted and unexhausted claims and must be dismissed pursuant to 12 controlling Supreme Court and Ninth Circuit authority. In recognition of the 13 Supreme Court’s and Ninth Circuit’s instructions to allow Petitioner the chance to 14 cure his Petition, however, the undersigned further finds that Petitioner should be 15 allowed the opportunity to amend or otherwise attempt to cure within a reasonable 16 amount of time from the District Court’s disposition of the Motion to Dismiss. 17 Accordingly, the undersigned RECOMMENDS that the District Court enter 18 an Order: 19 (1) Adopting this Report and Recommendation in its entirety; and 20 (2) Finding that the Petition contains both exhausted and unexhausted 21 claims and is subject to dismissal pursuant to the authorities cited 22 herein; and 23 (3) Conditionally GRANTING the Motion to Dismiss, dismissing the 24 Petition and this action without prejudice, and directing that 25 judgment be entered accordingly unless Petitioner notifies the Court 26 within 21 days of entry of the District Court’s Order that he intends 27 to avail himself of one of the options described above for curing his 28 Petition; and 1 (4) Depending on Petitioner's election, setting a date certain for 2 Petitioner to file an amended petition, a motion for voluntarily 3 dismissal, or a motion to stay or stay-and-abey. 4 IT IS HEREBY ORDERED that any objection to this Report and 5 Recommendation must be filed with the Court and served on all parties by 6 ||December 30, 2022. Replies to any objection must be filed with the Court and 7 served on all parties by January 13, 2023. The parties are advised that failure to 8 ||file objections within the specified time may waive the right to raise those 9 ||objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449 , 10 ||455 (9th Cir. 1998). 11 || IT IS SO ORDERED. 12 || Dated: November 28, 2022 it Ctl edb " “Hon. David D. Leshner 15 United Stated Magistrate Judge — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —