Price v. California Department of Corrections & Rebiliatation, et al

Filing 50

ORDER signed by Senior Judge James K. Singleton on 1/4/13 ORDERING that, within twenty-one (21) days of the date of this Order, Respondent must provide Price at no cost with copies of Lodged Documents Numbered 1 through 18, inclusive, as identified i n the Notice of Lodging Paper Documents at Docket No. 44 , and provide proof of service; IT IS FURTHER ORDERED THAT Price has thirty (30) days after Respondent complies with this Order within which to serve and file his Traverse; IT IS FURTHER ORDERED THAT to the extent that Price requests return of his legal papers that were not part of the records in the California state courts, the motion is DENIED; IT IS FURTHER ORDERED THAT the motion for a stay is DENIED as moot. (Becknal, R)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
GABRIEL W. PRICE,
No. 2:11-cv-01315-JKS
Petitioner,
ORDER
[Re: Motion at Docket No. 47]

vs.
MATTHEW CATE,1 Secretary, California
Department of Corrections and
Rehabilitation,
Respondent.

Gabriel W. Price, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2254. Price is currently in the custody of the California Department of
Corrections and Rehabilitation, incarcerated at the Pleasant Valley State Prison. Respondent has
answered. Price has not replied. At Docket No. 47 Price filed a Motion to Hold the Petition in
Abeyance. Respondent has opposed the motion, and Price has replied.
PENDING MOTION
In his motion Price alleges that during a move from the California State Prison, Los
Angeles, to the California Substance Abuse Treatment Facility in May 2010, a box containing his
legal papers was lost and has not been replaced. Respondent does not dispute this fact. Price
requests that this Court hold this proceeding in abeyance and order the Respondent to provide
him the legal papers lost at no cost, including his trial papers and documents on appeal.

1

Matthew Cate, Secretary, California Department of Corrections and Rehabilitation is
substituted for the Department of Corrections and Rehabilitation. Fed. R. Civ. P. 25(d).

The record reflects that Price exhausted his administrative remedies within the
Department of Corrections and Rehabilitation.2 At the Director Level, his appeal was denied:
A. FINDINGS: The Director’s Level of Review (DLR) finds that CDC Form
128-B, General Chrono dated January 13, 2011 indicates that on said date the
appellant was escorted to the SATF R&R to receive items from R&R staff. The DLR
notes that the issuance of the items was to comply with the decision made at the SLR.
The DLR acknowledges that the compensation that was offered was a 13 inch RCA
television valued at $149.95 and approximately $100 worth of cosmetic and canteen
items. The DLR notes that the appellant refused to accept compensation and chose
to take his appeal to the next level. The appellant is advised that according to
California Code of Regulations, Title 15, Section (CCR) 3084.7(e)(2)(B), an
appellant's refusal to accepl repair, replacement. or substitution of like items and
value shall be cause to deny the appeal. Furthermore, the DLR notes that the
appellant has not provided any documentation to indicate that the compensation
offered by the institution did not suitably replace the items that were lost. In view of
the above, justification for intervention at the DLR has not been established.3
In his opposition Respondent contends that Price’s motion should be denied. First,
Respondent contends that because all of his grounds are unexhausted the Petition must be
dismissed because Price he has not shown good cause for a stay. Second, with respect to Price’s
contention that Respondent should be compelled to replace his documents, Respondent argues:
While it appears that prison officials admitted their error and attempted to
compensate [Price] for the value of his lost property, [Price] refused to accept the
compensation and failed to provide documentation to indicate that the institution’s
compensation did not suitably replace the lost items. (See Exh. AA.) Certainly due
diligence would have required that [Price] contact the superior court to determine the
cost to recreate the record and provide that information to prison officials if he
believed that he had not been offered reasonable compensation for his loss.
Moreover, the lack of transcripts did not prevent [Price] from attempting to exhaust
Grounds 3, 5, and 10 of the federal petition, which demonstrates that [Price] could

2

It does not appear from the record that Price sought further review from the California
Victims Compensation and Government Claims Board. This Court is of the opinion that to
compel Price to further exhaust his state remedies in this regard would simply further delay these
proceedings and be of no benefit to the parties or in the interests of judicial efficiency.
3

Docket No. 47 at 8-9.
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have presented his remaining claims to the state court to satisfy the exhaustion
requirement.
In addition, [Price] has failed to show that his unexhausted claims are not
plainly meritless. Regarding his claim of jury tampering (Ground 1), [Price] has
failed to identify when the incident occurred, the document that the juror found, how
the court resolved the issue, and how he suffered any prejudice. As to his claim of
juror misconduct (Ground 2), [Price] has failed to identify when he became aware of
the alleged bias, whether the information came to light during voir dire, or how the
court responded to the allegation of juror bias. Regarding his claim of mental
incompetency (Ground 4), [Price] has failed to attach any medical records or other
evidence showing that he suffered from a severe mental illness during the
proceedings. As for his claim that he suffered improper dual punishment in violation
of double jeopardy principles (Ground 6), [Price] has failed to identify what conduct
he received double punishment for, or what the double punishment was, or how he
was doubly punished. With regard to his claim that the prosecutor committed
misconduct (Ground 7), [Price] has failed to reference specific instances when the
prosecutor engaged in conduct that rendered his trial fundamentally unfair, or how
any alleged misconduct had a “substantial and injurious effect or influence on the
jury’s verdict.” In addition, as Respondents explained in both the original and
supplemental answer, [Prices’s] claim of “state interference” (Ground 8) does not
challenge the legality of his custody and, therefore, is not cognizable on federal
habeas. And finally, with regard to his claim that the trial court should have granted
a mistrial (Ground 9), [Price] has failed to state whether trial counsel ever made a
motion for a mistrial on the basis that the victim and a witness were present in the
courtroom during jury selection, when these individuals were in the courtroom and
for how long, whether any prospective jurors came into contact with these
individuals, or how he suffered any prejudice.4
This Court rejects Respondent’s arguments. While it may be true that Price’s grounds
may be at least partially unexhausted and/or procedurally barred and possibly meritless, in the
absence of his state-court records preceding the date he filed his second petition for habeas relief
in the state courts in June 2011,5 Price is not only hampered in his ability to seek habeas relief in
this Court, he was hampered in seeking relief in the state courts in his second round of habeas
petitions. While Price may very well may have requested the superior court provide him with an

4

Docket No. 48 at 4-5.

5

Lodged Document No. 19.
3

estimated cost of replacing his legal papers, Price did request that his legal papers be returned.
Nowhere in the administrative appeal process was Price ever advised that he needed to obtain the
estimated cost of replacing his legal papers; indeed, the request for return of his legal papers was
never addressed at all. In the interests of justice, Price must be given every reasonable
opportunity to seek appropriate relief in this Court, which includes access to the state-court
records necessary to formulate, support with factual allegations, and cogently argue his grounds
for relief. That opportunity is severely impaired when the State declines to replace a petitioner’s
legal papers that would permit the petitioner to intelligently develop the legal issues and provide
the facts Respondent contends were omitted, papers the State was admittedly responsible for
losing. This Court would be remiss if it were to deny Price relief on the basis of a record that,
through no fault of his own, Price does not and did not have access to at the time he filed his
Petition. The Court declines to take such action.
While replacement of those legal papers copies of which that may be obtained from the
records of the California state courts is possible, Respondent obviously lacks the ability to
replace Price’s personal papers, e.g., his notes, research, work product and similar items that are
not part of the state-court records. This Court cannot order Respondent to do an act that is a
practical impossibility.
ORDER
IT IS THEREFORE ORDERED THAT, within twenty-one (21) days of the date of
this Order, Respondent must provide Price at no cost with copies of Lodged Documents
Numbered 1 through 18, inclusive, as identified in the Notice of Lodging Paper Documents at
Docket No. 44, and provide proof of service.
4

IT IS FURTHER ORDERED THAT Price has thirty (30) days after Respondent
complies with this Order within which to serve and file his Traverse.
IT IS FURTHER ORDERED THAT to the extent that Price requests return of his legal
papers that were not part of the records in the California state courts, the motion is DENIED.
IT IS FURTHER ORDERED THAT the motion for a stay is DENIED as moot.
Dated: January 4, 2013.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
United States District Judge

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