Clifton Perry v. Acting Warden Michael Martel

Filing 58

ORDER Granting 52 Abeyance and Directing Petitioner's Counsel to File Quarterly Status Reports, signed by District Judge Anthony W. Ishii on 7/18/13. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLIFTON PERRY,

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Petitioner,
v.
KEVIN CHAPPELL, Warden of California
State Prison at San Quentin,
Respondent.

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Case No.: 1:11-cv-01367 AWI
ORDER GRANTING ABEYANCE AND
DIRECTING PETITIONER’S COUNSEL TO FILE
QUARTERLY STATUS REPORTS

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Petitioner Clifton Perry (“Perry”) filed a motion to hold federal proceedings in abeyance on April

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29, 2013. The motion was opposed by Respondent Kevin Chappell, Warden of California State Prison

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at San Quentin (the “Warden”). After considering the arguments of the parties, the Court entered an

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order on June 3, 2013 (Doc. 56) requesting further briefing from the Warden concerning the following

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matters:

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1. Perry’s claim that the good cause requirement for abeyance under Rhines v. Weber, 544
U.S. 269 (2005), is satisfied by a showing of excusable neglect;
2. An explanation as to how the presentation of evidentiary support for existing claims
fundamentally alters those claims so as to render them unexhausted; and
3. Clarification of the position taken by the State during state habeas proceedings as to the
importance of the argument that claims were not properly substantiated.
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I. PRIOR PROCEEDINGS

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As more fully explained in the Court’s June 3, 2013 order, the Warden argued in his answer and

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supporting points and authorities that Claims 4, 5, and 6 of Perry’s federal petition are unexhausted

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because the presentation of supporting factual documentation fundamentally alters the legal claims

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presented to and considered by the state court. Although Perry took the position when the federal

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petition was filed, on September 4, 2012, that the petition was fully exhausted, an intervening change

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in controlling precedent convinced him otherwise.

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The standard for abeyance was fully briefed in the papers preceding the June 3, 2013 order. Of

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the two factors justifying abeyance, “good cause” for failure to exhaust the claims in state court in the

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first instance and that the claims are “not plainly meritless,” the Court determined that Perry had met

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the threshold for the “not plainly meritless” standard. The Court also was persuaded that the “good

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cause” component probably was met because of funding issues in state court. Because Perry raised an

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additional element of good cause, that is excusable (or inexcusable) neglect of state habeas counsel,

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the Court invited the Warden to address it.

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In his supplemental papers, the Warden neither argues against utilizing this excusable neglect

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standard, nor that Perry cannot establish it. Instead he reiterates prior arguments that abeyance is a

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limited procedure which is inappropriate in this case. The Court is not persuaded by these arguments

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any more now that it was on June 3, 2013. Accordingly, the Court finds that Perry has met both the

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“good cause” and “not plainly meritless” requirements. The Court notes that Perry’s diligence in

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conducting his pre-petition investigation informs the “good cause” requirement.

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The Court’s hesitation in granting abeyance on June 3, 2013 was largely based in its uncertainty

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that additional factual support for Claims 4, 5, and 6 rendered them unexhausted under Vasquez v.

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Hillery, 474 U.S. 254 (1986). That case held that the presentation of supporting evidence for existing

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claims in federal court does not necessarily require exhaustion where the petitioner previously

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presented the substance of the claims to the state court. Id. at 257-58, 260. After reviewing the state

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habeas claims on which Claims 4, 5, and 6 are based, the Court tentatively concluded that the federal

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claims did appear to be exhausted.

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And if the claims are exhausted, there would be no occasion to hold federal proceedings in

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abeyance. The matter would proceed to further briefing, first with Perry’s traverse and then the

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anticipated motion for an evidentiary hearing. Following the rule in Cullen v, Pinholster, ___ U.S.

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___, 131 S.Ct. 1388 (2011), however, the additional evidence appended to the federal petition would

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not be considered by the Court in assessing reasonableness of the state court denial under 28 U.S.C.§

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2254(d)(1).

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II. THE WARDEN’S ARGUMENT AS TO EXHAUSTION

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As to each of the claims, the Warden argues that the allegations and materials appended to the state

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petition are quite general in comparison with the case-specific declarations and reports accompanying

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the federal petition. In each instance, the Warden persuasively argues that the new evidence places

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Perry’s case in a significantly different and stronger evidentiary posture than it was when the state

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court considered it.

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This is not a standard the Court applied prior to the June 3, 2013 order. It is clear, however, that it

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is to be considered. As cited by the Warden, in the recent Ninth Circuit opinion, Dickens v. Ryan, 688

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F.3d 1054, 1067 (9th Cir. 2012), the court holds that a claim has not been fairly presented in state

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court if new factual allegations either fundamentally alter the legal claim already considered in state

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court (citing Vasquez v. Hillery, 474 U.S. at 260), or place the case in a “significantly different and

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stronger evidentiary posture” than when the state court considered it (citing Aiken v. Spalding, 841

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F.3d 881, 883 (9th Cir. 1988)). The authority cited by the Warden establishes that Perry’s federal

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Claims 4, 5, and 6 may properly be considered unexhausted.

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III. ORDER

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Having determined that Claims 4, 5, and 6, are unexhausted, and further that Perry has established

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good cause for his failure to exhaust this claims in the first instance, the claims are not plainly

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meritless, and Perry has been pursuing his claims diligently, the Court orders federal proceedings to be

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held in abeyance.

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Perry is directed to present his unexhausted claims to the California Supreme Court without delay,

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and in no event more than 45 days from the entry of this order. In addition, beginning September 1,

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2013, continuing on a quarterly basis thereafter, Perry, through his counsel shall file status reports of

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the pending state proceedings until those proceedings are concluded.

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IT IS SO ORDERED.

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Dated: July 18, 2013
/s/ Anthony W. Ishii
Anthony W. Ishii
United States District Judge

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