Jennifer Anne Chill v. Kimberly Hughes

Filing 15

MINUTES (IN CHAMBERS) Order Directing Petitioner to File Response Regarding Exhaustion and Denying Respondent's Motion to Dismiss Without Prejudice as Moot [Dkt. 11] by Magistrate Judge Kenly Kiya Kato: By August 3, 2015, Petitioner is ordered to respond to this Order by electing any of the five options presented (See Order). The Court warns Petitioner that failure to timely file and serve a response as directed in this Order will result in a recommendation that this action be dismissed without prejudice as a mixed petition, for failure to prosecute, and/or for failure to obey court orders. (dts)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-3558-PSG-KK

Title

Jennifer Anne Chill v. Kimberly Hughes

Present: The
Honorable

Date

July 20, 2015

Kenly Kiya Kato, United States Magistrate Judge

Deb Taylor

n/a

n/a

Deputy Clerk

Court Reporter / Recorder

Tape No.

Attorneys Present for Petitioner:

Attorneys Present for Respondent:

n/a

n/a

Proceedings:

(In Chambers) Order Directing Petitioner to File Response Regarding
Exhaustion and Denying Respondent’s Motion to Dismiss Without
Prejudice as Moot [Dkt. 11]

On May 12, 2015, Jennifer Anne Chill (“Petitioner”), a California state prisoner
proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”), pursuant to 28 U.S.C. § 2254. (ECF Docket No. (“dkt.”) 1). In
the Petition, Petitioner challenges her November 2011 convictions in San Luis Obispo
County Superior Court for: (1) vehicular manslaughter while intoxicated, in violation of
California Penal Code section 191.5(b); (2) driving under the influence of alcohol
causing injury, in violation of California Penal Code section 23153(a); and (3) driving
with a .08 percent blood alcohol level causing injury, in violation of California Vehicle
Code section 23153(b). (Id.). Petitioner sets forth four grounds for habeas relief: (1)
instructional error (“Claim One”); (2) error in response to the jury’s question by the trial
court (“Claim Two”); (3) insufficiency of the evidence (“Claim Three”); (4) cumulative
error (“Claim Four”). (Id.). Respondent has filed a Motion to Dismiss the Petition,
contending Claim Two is unexhausted. (Dkt. 11). The Court herein denies Respondent’s
Motion to Dismiss without prejudice as moot and orders Petitioner to file a response
regarding exhaustion.
A state prisoner must exhaust her state court remedies before a federal court may
consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.
Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). To satisfy the
exhaustion requirement, a habeas petitioner must fairly present her federal claims in the
state courts in order to give the State the opportunity to pass upon and correct alleged
violations of the prisoner’s federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.
Ct. 887, 130 L. Ed. 2d 865 (1995) (per curiam).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-3558-PSG-KK

Date

Title

July 20, 2015

Jennifer Anne Chill v. Kimberly Hughes

For a petitioner in California state custody, this generally means the petitioner must
have fairly presented her claims in a petition to the California Supreme Court. See
O’Sullivan, 526 U.S. at 845 (interpreting 28 U.S.C. § 2254(c)); Gatlin v. Madding, 189
F.3d 882,888 (9th Cir. 1999) (applying O’Sullivan to California). A claim has been fairly
presented if the petitioner has both “adequately described the factual basis for [the]
claim” and “identified the federal legal basis for [the] claim.” Gatlin, 189 F.3d at 888.
The inclusion of both exhausted and unexhausted claims in a federal habeas
petition renders it mixed and subject to dismissal without prejudice. See Rose v. Lundy,
455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982).
Here, Claim Two does not appear to have been fairly presented to the California
Supreme Court in Petitioner’s Petition for Review on appeal—her only filing in the
California Supreme Court. See Lodged Document No. 5.1 While Petitioner did raise the
underlying facts of Claim Two in her Petition for Review—i.e. the trial court’s error in
responding to a question by the jury—Petitioner did not identify the “federal legal basis”
underlying this claim. See id. at 13-16. As an initial matter, Petitioner identified no
federal constitutional provision supporting the claim. Petitioner cited various sources of
state law, including: (1) California Penal Code section 1138; (2) People v. Watson, 46
Cal.2d 818, 836 (1956); (3) People v. Eid, 187 Cal. App. 4th 859, 882 (Cal. Ct. App.
2010); (4) People v. Blakeley, 23 Cal.4th 82, 99 (2000). Lodged Document No. 5 at 1415. Petitioner also cited three federal court cases: (1) United States v. Anekwu, 695 F.3d
967, 986 (9th Cir. 2012); and (2) United States v. Frega, 179 F.3d 793, 809 (9th Cir.
1999); and (3) Bollenbach v. United States, 324 U.S. 837, 65 S. Ct. 915, 89 L. Ed. 1401
(1945). Lodged Document No. 5 at 15. None of these authorities—either state or federal
—indicated Petitioner’s claim was of a federal constitutional nature. In particular, the
federal authorities cited merely discussed a trial judge’s duty to answer questions from
the jury, without specifying whether this duty arose from any federal constitutional
provision. Under these circumstances, Petitioner does not appear to have fairly presented
Claim Two before the California Supreme Court. See Castillo v. McFadden, 399 F.3d
993, 999 (9th Cir. 2005) (holding that, to properly exhaust claims in state court, “the
petitioner must have either referenced specific provisions of the federal constitution or
1

The Court’s citations to lodged documents refer to the documents regarding Petitioner’s state
court proceedings lodged with the Court by Respondent. (Dkt. 12).
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-3558-PSG-KK

Date

Title

July 20, 2015

Jennifer Anne Chill v. Kimberly Hughes

cited to federal or state cases involving the legal standard for a federal constitutional
violation”).
Therefore, it appears from the record now before the Court that the instant Petition
is subject to dismissal as a mixed petition because Petitioner has not exhausted her state
remedies in regard to Claim Two. However, before deciding this matter, the Court will
first give Petitioner an opportunity to address the exhaustion issue by electing any of the
following five options:
Option 1:
If Petitioner contends she has in fact exhausted her state court remedies on Claim
Two, she should clearly explain this in a response to this Order. Petitioner should attach
to her response copies of any documents establishing that Claim Two is indeed
exhausted. (Petitioner may also file a response, and include a notice that, if the court still
finds the petition to be mixed, she alternatively selects one of the other options discussed
below.)
Option 2:
Alternatively, Petitioner may request a voluntary dismissal of this action without
prejudice pursuant to Federal Rule of Civil Procedure 41(a). A Notice of Dismissal
form is attached for Petitioner’s convenience. The Court advises Petitioner, however,
that if Petitioner should later attempt to again raise any dismissed claims in subsequent
habeas petitions, those claims may be time-barred under the one-year statute of
limitations in 28 U.S.C. § 2244(d)(1).
Option 3:
Petitioner may request a voluntary dismissal of only her unexhausted claim (Claim
Two), and elect to proceed on only her exhausted claims. Petitioner may also use the
attached Notice of Dismissal form in order to select this option. The Court advises
Petitioner, however, that if she elects to proceed now with only her exhausted claims, any
future habeas petition containing Claim Two or other claims that could have been raised
in the instant Petition may be rejected as successive (or may be time-barred).

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-3558-PSG-KK

Date

Title

July 20, 2015

Jennifer Anne Chill v. Kimberly Hughes

Option 4:
Pursuant to Rhines v. Weber, 544 U.S. 269, 277-78, 125 S. Ct. 1528, 161 L. Ed. 2d
440 (2005), Petitioner may ask the Court to stay all of the claims in a mixed petition
while she returns to the state courts to exhaust her already pled but unexhausted claim.
To obtain a stay of this case pursuant to Rhines, Petitioner is required to: (a) show good
cause for her failure to exhaust Claim Two in state court earlier; and (b) show that Claim
Two is not “plainly meritless.” See id. at 277. (Petitioner also may request a Rhines stay,
and include a notice that, if the Court denies the Rhines stay, she alternatively selects one
of the other options.)
Option 5:
Pursuant to Kelly v. Small, 315 F.3d 1063, 1070-71 (9th Cir. 2003), overruled on
other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), Petitioner may
dismiss Claim Two and ask the Court to stay her remaining, fully exhausted claims while
she returns to the state courts to exhaust Claim Two. The Court advises Petitioner,
however, that “[a] petitioner seeking to use the Kelly procedure will be able to amend
h[er] unexhausted claims back into h[er] federal petition once [s]he has exhausted them
only if those claims are determined to be timely. And demonstrating timeliness will often
be problematic under the now-applicable legal principles.” King v. Ryan, 564 F.3d 1133,
1140-41 (9th Cir. 2009). Additionally, a petitioner may only amend a new claim into a
pending federal habeas petition after the expiration of the limitations period if the new
claim shares a “common core of operative facts” with the claims in the pending petition.
Mayle v. Felix, 545 U.S. 644, 659, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005). (Petitioner
also may request a Kelly stay, and include a notice that, if the Court denies the Kelly stay,
she alternatively selects one of the other options.)
Caution: Petitioner is cautioned that if she requests a stay and the Court denies the
request for a stay, or if Petitioner contends that she has in fact exhausted her state court
remedies on Claim Two and the Court disagrees, the Court may recommend the Petition
be dismissed as a mixed petition. Accordingly, as noted above, Petitioner may select
options in the alternative.
Summary: In sum, in order to select Option 1, Petitioner must file a response to
this Order showing Claim Two is exhausted. In order to select Options 2 or 3, Petitioner
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 15-3558-PSG-KK

Date

Title

July 20, 2015

Jennifer Anne Chill v. Kimberly Hughes

may file the attached Notice of Dismissal form and fill it out according to her choice. In
order to select Options 4 or 5, Petitioner must file a written response requesting a stay
pursuant to either Rhines or Kelly. With Options 1, 4, or 5, Petitioner may select an
alternative option in the event the Court finds Claim Two unexhausted and/or denies the
request for a stay. Whichever option Petitioner selects, Petitioner must file and serve the
responding document clearly stating the option selected no later than August 3, 2015.

IT IS THEREFORE ORDERED:
1.

By August 3, 2015, Petitioner is ordered to respond to this Order by electing
any of the five options presented above. The Court warns Petitioner that
failure to timely file and serve a response as directed in this Order will
result in a recommendation that this action be dismissed without
prejudice as a mixed petition, for failure to prosecute, and/or for failure
to obey court orders.

2.

Respondent’s Motion to Dismiss the Petition is DENIED as moot.

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