Tidwell v. Martel

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/24/11 ORDERING that 7 Motion to Stay is GRANTED, pending exhaustion of Claim 3; and Petitioner is directed to inform this court and file a request to lift the stay within 30 days of a decision by the California Supreme Court concluding state court habeas review. Clerk shall administratively close this case for purposes of case status pending exhaustion.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JUAN M. TIDWELL, SR.,

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Petitioner,

No. CIV S-11-0489 CKD P

vs.
M. MARTEL, Warden,
Respondent.

ORDER
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Petitioner is a state prisoner proceeding pro se and seeking a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner seeks federal habeas relief concerning his 2006 trial and

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conviction for kidnapping to commit rape or robbery, forcible rape, and related offenses,

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resulting in a sentence of 151 years to life. (Dkt. No. 1 at 1.) On March 3, 2011, the magistrate

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judge previously assigned to this action found that petitioner had failed to exhaust state court

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remedies with respect to Claim 3, alleging that petitioner was denied due process of law and his

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Sixth Amendment right to confront the witnesses against him. The magistrate judge gave

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petitioner leave to file either an amended petition with all unexhausted claims omitted, or a

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motion pursuant to Rhines v. Weber, 544 U.S. 269 (2005) seeking to stay the petition pending

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state court exhaustion of Claim 3. (Dkt. No. 5.) On March 15, 2011, petitioner filed a motion

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seeking a Rhines stay of the petition pending exhaustion of Claim 3. (Dkt. No. 7.)
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I. Merits
The court will first consider whether Claim 3 is potentially meritorious, as
required for a Rhines stay. 544 U.S. at 277-278. The petition sets forth Claim 3 as follows:
Prior to trial petitioner[’s] DNA was allegedly found in the crotch
areas of the complaining witness[’] panties. Petitioner contested
the results of the prosecutor’s forensic analysts, and expressed
concerns for trial counsel to investigate the DNA evidence in a
Marsden motion. Trial counsel stipulated for the admission of the
DNA evidence over petitioner[’]s objection.

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(Dkt. No. 1 at 6.) Petitioner asserts that he did not “waive his right to confront the prosecutor’s

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forensic analysts, nor did petitioner agree to trial counsel stipulation of the DNA evidence....This

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violated petitioner’s due process right to present a defense and his right to confrontation and

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cross examination.” (Id., Attachment at 10)

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The Confrontation Clause of the Sixth Amendment requires that a criminal

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defendant be afforded the right to confront and cross-examine witnesses against him. See Pointer

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v. Texas, 380 U.S. 400, 403 (1965). The Confrontation Clause applies to all out-of-court

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testimonial statements offered for the truth of the matter asserted, i.e., “testimonial hearsay.” See

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Crawford v. Washington, 541 U.S. 36, 51 (2004). However, the Supreme Court in Crawford

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singled out business records as an example of non-testimonial hearsay. Id. at 56; see also United

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States v. Miller, 830 F.2d 1073, 1077 (9th Cir.1987).

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In Melendez-Diaz v. Massachusetts, --- U.S. ----, 129 S.Ct. 2527, 2531-32 (2009),

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the Supreme Court held that “certificates of analysis” stating that a tested substance was cocaine

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were testimonial and could not be admitted without cross-examination of the document’s author.

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Regarding forensic evidence generally, the Supreme Court observed that “an analyst’s lack of

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proper training or deficiency in judgment may be disclosed in cross-examination,” and that,

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while there might be “other ways – and in some cases better ways – to challenge or verify the

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results of a forensic test[,] . . . the Constitution guarantees one way: confrontation.” Id. at 2356-

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2357. The Court further held that the forensic reports at issue were not “business records” under
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Crawford, as they were “calculated for use essentially in the court, not in . . . business.” Id. at

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2538. Because Melendez-Diaz may be reasonably interpreted to apply to the DNA evidence at

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issue here, the court concludes that petitioner’s Confrontation Clause claim is at least potentially

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meritorious.

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As to the due process aspect of this claim, the question on federal habeas review is

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“whether the admission of the evidence so fatally infected the proceedings as to render them

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fundamentally unfair.” Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). For

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purposes of ruling on petitioner’s Rhines motion, the court concludes that petitioner’s due

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process allegations as to the stipulated admission of DNA evidence without petitioner’s consent

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have sufficient potential merit to go forward.

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II. Good Cause

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The next question is whether petitioner has shown good cause for his earlier
failure to exhaust state remedies. 544 U.S. at 278-279.
Petitioner asserts that he did not learn of the Supreme Court’s decision in

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Melendez-Diaz, supra, until August 2010, when he received an issue of Cell Door Magazine in

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which an article discussed the Court’s recent holding concerning the Confrontation Clause and

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forensic evidence. (Dkt. No. 7.) At the time, petitioner was serving a seven-month stint in

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Administrative Segregation, which lasted between May 24, 2010 and December 28, 2010. (Dkt.

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No. 7 at 3.) Petitioner states that he was limited to two hours of law library use per week while

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in Administrative Segregation, and was not given direct access to the material but had to put in

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written requests “to check references, which prolonged my research.” (Id. at 8.) Petitioner

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further asserts that his placement in Administrative Segregation worsened his ongoing problems

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with depression, such that “[a]lthough petitioner continued to utilize the law library, I couldn’t

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comprehend what I was reading.” (Id.) Between his limited law library access and depression,

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petitioner claims, he “could not effectively represent himself” during this period. (Id. at 9.) On

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December 28, 2010, petitioner was transferred to Mule Creek State Prison and was unable to
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access his property until February 3, 2011. (Id. at 9.) He filed the instant federal habeas petition

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on February 18, 2011, including the unexhausted Claim 3. (Id.)

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Rhines does not go into detail as to what constitutes good cause for failure to

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exhaust, and the Ninth Circuit has provided no clear guidance beyond holding that the test is less

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stringent than an “extraordinary circumstances” standard. Jackson v. Roe, 425 F.3d 654, 661-62

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(9th Cir. 2005). Several district courts have concluded that the standard is more generous than

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the showing needed for “cause” to excuse a procedural default. See, e.g., Rhines v. Weber, 408

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F. Supp. 2d 844, 849 (D.S.D. 2005) (applying the Supreme Court’s mandate on remand). This

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view finds support in Pace v. DiGuglielmo, 544 U.S. 408, 416-417 (2005) where the Supreme

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Court acknowledged that a petitioner’s “reasonable confusion” about the timeliness of his federal

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petition would generally constitute good cause for his failure to exhaust state remedies before

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filing his federal petition.

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This court finds, in this instance and based on the circumstances described, that

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petitioner has shown sufficient cause to meet the “good cause” standard under Rhines.

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Moreover, it does not appear that petitioner engaged in intentionally dilatory litigation tactics.

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See 544 U.S. at 277-278.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Petitioner’s motion for a stay under Rhines, supra, filed on March 15, 2010, is

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granted, pending exhaustion of Claim 3; and

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2. Petitioner is directed to inform this court and file a request to lift the stay within

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thirty days of a decision by the California Supreme Court concluding state court habeas review.

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Failure to timely inform the court will result in dismissal of the federal claim; and

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3. The Clerk shall administratively close this case for purposes of case status
pending exhaustion.
Dated: October 24, 2011

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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