Leroy Thompson v. Daniel Paramo

Filing 39

ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED by Magistrate Judge Steve Kim. Petitioner is ORDERED TO SHOW CAUSE why the Petition should not be dismissed as unexhausted, procedurally defaulted, untimely, and/or not cognizable on federal habeas review. Petitioner's response is due within 30 days of the date of this order. Failure to respond to the order may result in dismissal of this action for lack of prosecution and failure to obey court orders. IT IS SO ORDERED. (mkr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LEROY THOMPSON,
Petitioner,

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v.
DANIEL PARAMO, Warden,

CASE NO. 2:15-cv-05725-JVS (SK)
ORDER TO SHOW CAUSE WHY
PETITION SHOULD NOT BE
DISMISSED

Respondent.

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Petitioner is a California state prisoner serving a sentence of 236 years

18 to life, plus 38 years, for second-degree robbery, assault with a firearm, and
19 attempted second-degree robbery. (LD 1 at 480-82; LD 2 at 1366–76). On
20 appeal, Petitioner raised three state-law claims, which the California Court
21 of Appeal denied in a written opinion. (LD 3). Petitioner did not file a
22 petition for review in the California Supreme Court. (LD 4). Instead, he
23 later filed a state habeas petition in the California Supreme Court by
24 attaching and resubmitting his direct-appeal opening briefs to the California
25 Court of Appeal. (LD 5). The California Supreme Court denied the habeas
26 petition with citation to In re Waltreus, 62 Cal. 2d 218, 225 (1965). (LD 6).
27 Petitioner then filed his federal habeas petition here in the same way that he
28 had filed his state habeas petition – by attaching without change and

1 incorporating by reference the opening briefs submitted to the California
2 Court of Appeal on direct review. (ECF No. 1 at 11–37). For the reasons
3 below, it plainly appears that Petitioner is not entitled to habeas relief. See
4 28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases; L.R. 72-3.2.
5 Thus, he is ordered to show cause why the Petition should not be dismissed.
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First, Petitioner’s claims are not exhausted. A federal court may not

7 grant habeas relief to a state prisoner unless he has properly exhausted his
8 remedies in state court. See 28 U.S.C. § 2254(b)(1). To satisfy this
9 requirement, a petitioner must “fairly present” the substance of his claim to
10 the state court. Picard v. Connor, 404 U.S. 270, 275 (1971). It is not
11 sufficient to raise only the facts supporting the claim; rather, “the
12 constitutional claim . . . inherent in those facts” must be brought to the
13 attention of the state court. Id. at 277. “If state courts are to be given the
14 opportunity to correct alleged violations of prisoners’ federal rights, they
15 must surely be alerted to the fact that the prisoners are asserting claims
16 under the United States Constitution.” Duncan v. Henry, 513 U.S. 364,
17 365–66 (1995). Here, none of Petitioner’s claims in state court alleged a
18 violation of the Constitution or federal law. Thus, his claims are
19 unexhausted because “a claim for relief in habeas corpus must include
20 reference to a specific federal constitutional guarantee[.]” Gray v.
21 Netherland, 518 U.S. 152, 162–63 (1996).
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Second, Petitioner’s claims were procedurally defaulted in state court.

23 See Coleman v. Thompson, 501 U.S. 722, 729–30 (1991). The California
24 Supreme Court denied his claims on collateral review with citation to In re
25 Waltreus, 62 Cal. 2d 218, 225 (1965), which bars claims on state habeas
26 (subject to exceptions not applicable here) that were raised and rejected on
27 direct appeal. Ordinarily, a Waltreus denial is considered neither a ruling of
28 procedural default nor a ruling on the merits where the claim at issue has
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1 been decided on the merits by the California Supreme Court on direct
2 appeal. See Hill v. Roe, 321 F.3d 787, 790 (9th Cir. 2003). But there
3 remains an exception where, as here, the petitioner fails to file a petition for
4 review on direct appeal, thereby procedurally forfeiting “his only chance to
5 present properly his claim to the California Supreme Court.” Forrest v.
6 Vasquez, 75 F.3d 562, 564 (9th Cir. 1996). In that narrow circumstance,
7 which is present here, Petitioner has “deprived the highest state court of an
8 opportunity to address his claim in the first instance, and his claim is
9 procedurally defaulted.” Id. (citing Coleman, 501 U.S. at 732). 1

Procedural default may be excused if “the prisoner can demonstrate

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11 cause for the default and actual prejudice as a result of the alleged violation
12 of federal law, or demonstrate that failure to consider the claims will result
13 in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. Cause
14 is established where “the prisoner can show that some objective factor
15 external to the defense impeded counsel’s efforts to comply with the State’s
16 procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To establish
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A handful of lower courts have suggested that Forrest applies only in cases where the
18 California Supreme Court has expressly denied a petition for review as untimely and then
later issued a Waltreus denial. See, e.g., Watts v. Adams, 2013 WL 501189, at *4 (E.D.
19 Cal. Feb. 11, 2013); Lima v. Kramer, 2012 WL 4109096, at *8 n.11 (S.D. Cal. Mar. 26,
20 2012); Rabb v. Lopez, 2012 WL 5289576, at *16 (C.D. Cal. July 2, 2012). But while the
denial of a late petition for review happened to be sufficient to find procedural default in
21 Forrest, there is no indication it is necessary. Whether a petitioner defaults his claim on
direct appeal by filing no petition or by filing a late petition that is rejected as untimely, a
22 Waltreus denial has the same result: the petitioner has forfeited the only chance to have
the California Supreme Court address his claim on the merits. There is no reason to find
23 procedural default in the second scenario but not in the first, because either way the claim
24 has never been presented properly to the California Supreme Court. Otherwise, the
distinction would lead to perverse incentives because “it rewards petitioners who do not
25 file anything with the California Supreme Court . . . , and punishes those who do, albeit in
an untimely fashion.” Davis v. Butler, 2005 WL 1490283, at *7 (E.D. Cal. June 17,
26 2005). Hill, 321 F.3d at 789, is reconcilable because it only makes sense that when the
California Supreme Court has denied the merits of a claim presented in a timely petition
27 for review, a Waltreus denial of that same claim should not result in procedural default
since the petitioner has “exhausted his [] claim by presenting it on direct appeal, and was
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not required to go to state habeas at all.” Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991).
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1 prejudice “[t]he habeas petitioner must show ‘not merely that the errors at
2 . . . trial created a possibility of prejudice, but that they worked to his actual
3 and substantial disadvantage, infecting his entire trial with error of
4 constitutional dimensions.’” Id. at 494 (emphasis omitted) (quoting United
5 States v. Frady, 456 U.S. 152, 170 (1982)). And a fundamental miscarriage
6 of justice occurs only when a constitutional violation probably resulted in the
7 conviction of a defendant who is actually innocent. See id. at 495–96.
8 Petitioner has not demonstrated that either of these exceptions applies here.
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Third, the Petition is barred by the statute of limitations. Petitioner

10 concedes that his petition is untimely because it was filed more than one
11 year after his conviction became final (accounting for statutory tolling) in
12 October 2013. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). However, he argues he
13 is entitled to equitable tolling from October 2013 to November 2015 because
14 of various mental limitations and health problems. (ECF No. 19). To obtain
15 equitable tolling, Petitioner must show both (1) “that some extraordinary
16 circumstance stood in his way and prevented timely filing,” and (2) “that he
17 has been pursuing his rights diligently.” Holland v. Florida, 560 U.S. 631,
18 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Here,
19 although Petitioner has attempted to make the case for extraordinary
20 circumstances based on his alleged mental and physical limitations, he has
21 not explained how those limitations (even if true and assumed to be
22 extraordinary) stood in the way of timely filing, nor has he indicated the
23 ways in which he was diligently pursuing his rights. See Luna v. Kernan,
24 784 F.3d 640, 649–50 (9th Cir. 2015).
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To establish that his mental and physical limitations “prevented” him

26 from timely filing, Petitioner must meet the “causation” requirement and
27 show that “[b]ut for” his impairments, he would have filed his federal habeas
28 petition on time. Id. at 649. Here, Petitioner generally describes his mental
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1 and physical conditions, but provides no evidence that his petition was filed
2 late specifically because of – and not merely in spite of – those conditions.
3 Further, to establish reasonable diligence, Petitioner must “show diligence
4 through the time of filing, even after the extraordinary circumstances have
5 ended.” Id. at 651. Petitioner fails to supply any medical timing evidence of
6 when his mental or physical impairments started or stopped, making it
7 impossible to determine if reasonable diligence was exercised and, if so, for
8 what periods of time. Given that Petitioner eventually filed his (late) federal
9 habeas petition by just attaching and referencing the opening briefs filed in
10 the California Court of Appeal, it is hard to see why such a facile task could
11 not have been done much sooner during the one-year limitations period
12 notwithstanding his alleged mental and physical challenges.
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Finally, Petitioner’s claims are not cognizable on federal habeas review.

14 Just as he argued on direct appeal, Petitioner challenges here (1) the denial
15 of his request under People v. Marsden, 2 Cal. 3d 118 (1970), to substitute
16 appointed counsel in the middle of trial; (2) the denial of his motion under
17 People v. Superior Court (Romero), 13 Cal. 4th 497 (1996), to strike his
18 prior convictions in the interests of justice for sentencing; and (3) the trial
19 court’s failure to sua sponte stay his sentence for attempted robbery under
20 California Penal Code § 654 on the ground that it punished him for the same
21 conduct underlying his robbery convictions. (ECF No. 1 at 11–37). Because
22 these claims attack only the California state court’s application of its own
23 state’s laws, they raise no constitutional claims cognizable on federal habeas
24 corpus. See Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); see also Brown
25 v. Mayle, 283 F.3d 1019, 1040 (9th Cir. 2002) (claim for resentencing under
26 Romero not cognizable on federal habeas), vacated and remanded on other
27 grounds, Mayle v. Brown, 538 U.S. 901 (2003); Watts v. Bonneville, 879
28 F.2d 685, 687 (9th Cir. 1999) (alleged violation of Cal. Penal Code § 654 is
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1 state-law claim not cognizable in federal habeas proceeding). Indeed, the
2 Court of Appeal’s conclusions rejecting Petitioner’s claims under California
3 state law are binding here. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005).
4 Hence, “it is perfectly clear that the petitioner has no chance of obtaining
5 relief” on any of these unexhausted state-law claims. 2 Cassett v. Stewart,
6 406 F.3d 614, 624 (9th Cir. 2005).

THEREFORE, Petitioner is ORDERED TO SHOW CAUSE why the

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8 Petition should not be dismissed as unexhausted, procedurally defaulted,
9 untimely, and/or not cognizable on federal habeas review. Petitioner’s
10 response is due within 30 days of the date of this order. Failure to respond
11 to the order may result in dismissal of this action for lack of prosecution and
12 failure to obey court orders.

IT IS SO ORDERED.

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15 DATED: August 18, 2017
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HON. STEVE KIM
U.S. MAGISTRATE JUDGE

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While Marsden claims can be construed as Sixth Amendment claims (where, unlike
here, a petitioner asserts that constitutional ground in state court), the Supreme Court
has never clearly established that “a denial of a motion to substitute counsel can be
unconstitutional.” Johnson v. Long, 2014 WL 496921, at *10 (E.D. Cal. Feb. 6, 2014)
(construing Marsden claim as state-law claim). Nor has the Supreme Court squarely
ruled that mere disagreements and distrust between attorney and client can violate the
Constitution. See Plumlee v. Masto, 512 F.3d 1204, 1210–11 (9th Cir. 2008) (en banc).
Moreover, no Supreme Court case has endorsed the Ninth Circuit rule from Stenson v.
Lambert, 504 F.3d 873, 886 (9th Cir. 2007), that an “irreconcilable conflict” based on a
“complete breakdown in communication” can amount to a denial of the right to counsel.
See Lopez v. Smith, 135 S. Ct. 1, 4 (2014); Owsley v. Bowersox, 234 F.3d 1055, 1057 (8th
Cir. 2000). But even under the Ninth Circuit’s “irreconcilable conflict” standard,
“[d]isagreements over strategical or tactical decisions do not rise to level of a complete
breakdown in communication.” Stenson, 504 F.3d at 886.
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