Raymond Lequan Gibbs v. W. L. Montgomery

Filing 12

ORDER TO SHOW CAUSE by Magistrate Judge Douglas F. McCormick. Response to Order to Show Cause due by 5/7/2015. See Order for more information. (twdb)

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April 9, 2015
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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RAYMOND LEQUAN GIBBS,

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Petitioner,

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v.
W.L. MONTGOMERY,

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Respondent.

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) Case No. CV 15-00949-AB (DFM)
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) ORDER TO SHOW CAUSE
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On February 10, 2015, Petitioner filed a Petition for Writ of Habeas

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Corpus by a Person in State Custody. Dkt. 1 (“Petition”). Respondent has

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moved to dismiss the Petition on the basis that Petitioner has not exhausted his

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state-court remedies with respect to the cumulative-error claim presented in

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Ground Seven of the Petition. Dkt. 10.

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Under 28 U.S.C. § 2254(b), habeas relief may not be granted unless a
petitioner has exhausted the remedies available in the state courts.1 Exhaustion
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28 U.S.C. § 2254(b)(1) provides that a habeas petition brought by a
person in state custody “shall not be granted unless it appears that (A) the
applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or (ii)

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requires that the prisoner’s contentions be fairly presented to the state courts

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and be disposed of on the merits by the highest court of the state. See James v.

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Borg, 24 F.3d 20, 24 (9th Cir. 1994). Moreover, a claim has not been fairly

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presented unless the prisoner has described in the state court proceedings both

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the operative facts and the federal legal theory on which his claim is based.

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See Duncan v. Henry, 513 U.S. 364, 365-66 (1995); Picard v. Connor, 404

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U.S. 270, 275-78 (1971). As a matter of comity, a federal court will not

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entertain a habeas corpus petition unless the petitioner has exhausted the

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available state judicial remedies on every ground presented in the petition. See

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Rose v. Lundy, 455 U.S. 509, 518-22 (1982). Petitioner has the burden of

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demonstrating that he has exhausted available state remedies. See, e.g., Brown

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v. Cuyler, 669 F.2d 155, 158 (3d Cir. 1982).

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It appears that the claim of cumulative error in Ground Seven was not

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presented in Petitioner’s petition for review to the California Supreme Court.

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See Respondent’s Notice of Lodging, Lodged Document (“LD”) 2. Moreover,

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although Petitioner joined the petitions filed by his co-defendants Wallace and

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Khalill, neither of those petitions raised a claim of cumulative error. See LD 3,

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4. Nor did Petitioner satisfy the exhaustion requirement by challenging each

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error separately before the California Supreme Court. Although a claim may

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be deemed fairly presented for exhaustion purposes where a petitioner asserted

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a “sufficiently related” or “intertwined” claim in his state-court briefing—such

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that, by raising one claim, the petition clearly implies another error—that

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exception does not apply to cumulative-error claims. See Wooten v. Kirkland,

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540 F.3d 1019, 1025 (9th Cir. 2008) (“Briefing a number of isolated errors that

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turn out to be insufficient to warrant reversal does not automatically require

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circumstances exist that render such process ineffective to protect the rights of
the applicant.”
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the court to consider whether the cumulative effect of the alleged errors

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prejudiced the petitioner.”).

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If it were nonetheless clear here that Petitioner’s unexhausted claim was

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procedurally barred under state law, then the exhaustion requirement would be

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satisfied. See Castille v. Peoples, 489 U.S. 346, 351-52 (1989); Johnson v.

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Zenon, 88 F.3d 828, 831 (9th Cir. 1996); Jennison v. Goldsmith, 940 F.2d

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1308, 1312 (9th Cir. 1991). However, the Court concludes that it is not clear

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that the California Supreme Court will hold that Petitioner’s unexhausted

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claim is procedurally barred under state law if Petitioner were to raise it in a

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habeas petition to the California Supreme Court, as such a proceeding is an

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original proceeding is not subject to the same timeliness requirement as a

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Petition for Review of a Court of Appeal decision. See, e.g., In re Harris, 5

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Cal. 4th 813, 825 (1993) (granting habeas relief where petitioner claiming

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sentencing error, even though the alleged sentencing error could have been

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raised on direct appeal); People v. Sorensen, 111 Cal. App. 2d 404, 405 (1952)

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(noting that claims that fundamental constitutional rights have been violated

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may be raised by state habeas petition). The Court therefore concludes that this

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is not an appropriate case for invocation of either statutory “exception” to the

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requirement that a petitioner’s federal claims must first be fairly presented to

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and disposed of on the merits by the state’s highest court. See 28 U.S.C. §

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2254(b)(1)(B).

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Accordingly, Petitioner’s inclusion of his cumulative error claim in

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Ground Seven of his Petition renders the Petition a “mixed petition”

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containing both exhausted and unexhausted claims. Under the total

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exhaustion rule, if even one of the claims being alleged by a habeas petitioner

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is unexhausted, the petition must be dismissed. See Rose, 455 U.S. at 522; see

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also Coleman v. Thompson, 501 U.S. 722, 731 (1991); Castille, 489 U.S. at

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349. However, in Rhines v. Weber, 544 U.S. 269, 277 (2005), the Supreme
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Court held that, in certain “limited circumstances,” a district court may stay a

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mixed petition and hold it in abeyance while the petitioner returns to state

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court to exhaust his unexhausted claims. Under Rhines, the prerequisites for

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obtaining a stay while the petitioner exhausts his state remedies are: (1) that

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the petitioner show good cause for his failure to exhaust his claims first in state

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court; (2) that the unexhausted claims not be “plainly meritless”; and (3) that

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petitioner not have engaged in “abusive litigation tactics or intentional delay.”

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See id. at 277-78.

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Here, Petitioner has not even requested that the Court hold the Petition

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in abeyance until after he exhausts his state remedies with respect to his

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unexhausted claim, let alone purported to make the three necessary showings

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under Rhines. Per Rhines, where the petitioner has presented the Court with a

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mixed petition and the Court determines that stay and abeyance is

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inappropriate, the Court must “allow the petitioner to delete the unexhausted

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claims and to proceed with the exhausted claims if dismissal of the entire

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petition would unreasonably impair the petitioner’s right to obtain federal

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relief.” See Rhines, 544 U.S. at 278; see also Henderson v. Johnson, 710 F.3d

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872, 873 (9th Cir. 2013).

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IT THEREFORE IS ORDERED that, on or before May 7, 2015,

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Petitioner either (a) file a stay-and-abeyance motion if he believes he can make

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the requisite three showings under Rhines; (b) file a Notice of Withdrawal of

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Ground Seven; or (c) show cause in writing, if he has any, why this action

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should not be dismissed without prejudice for failure to exhaust state remedies

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unless Petitioner withdraws his unexhausted claim.

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Dated: April 9, 2015
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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