Bucci v. Busby

Filing 17

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/12/2012 RECOMMENDING that petitioner's # 10 motion to stay be granted and this action be administratively closed; Petitioner's motion to stay claim four pursuan t to Rhines be granted; petitioner's motion to stay claims three, five, six, seven and eight pursuant to Rhines be denied; Petitioner's motion to stay claims three, five, six, seven and eight pursuant to Kelly be granted; these claims should be stricken from the petition. Referred to Judge Garland E. Burrell, Jr.; Objections due within 20 days after being served with these F & R's. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICOLA CHRISTOPHER BUCCI,

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Petitioner,
vs.
TIMOTHY E. BUSBY, et al.,

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Respondents.

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No. 2: 11-cv-3147 GEB KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction
Petitioner is a state prisoner, proceeding through counsel, with a petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for

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two counts of second degree murder. He is serving a sentence of twenty-three years to life.

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On February 16, 2012, a hearing was held regarding petitioner’s motion to stay

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this action pending exhaustion of additional claims. William L. Schmidt appeared on petitioner’s

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behalf. Dorian C. Jung appeared on respondent’s behalf. For the following reasons, petitioner’s

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motion should be granted.

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II. Factual Background

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Knowledge of the factual background of petitioner’s offenses is helpful in
evaluating the pending motion. For that reason, the factual summary contained in the opinion of
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the California Court of Appeal is set forth herein:

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A. Prosecution Case

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1. Eye-witnesses Johnson and Fender

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Witness Kim Johnson testified that around 6:30 p.m. on November
17, 2006, she was driving eastbound on Highway 12, a two-lane
highway. Traffic was heavy in both the eastbound and westbound
lanes. Johnson was driving at the 55-mile-per-hour speed limit. She
looked in her rear view mirror and saw a silver SUV pass her
vehicle in the westbound lane, then pull in front of her vehicle in
the eastbound lane. The silver SUV was “driving really fast.”
Johnson estimated its speed at 65 to 70 miles per hour.

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Passing was prohibited in this section of Highway 12.
Nevertheless, the silver SUV pulled back into the westbound lane
and accelerated up a hill, attempting to pass more vehicles. At the
crest of the hill, the SUV collided head-on with a small red car in
the westbound lane. The SUV flipped in the air and landed in a
field. The small car was severely damaged and burning in the
westbound lane.

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Johnson pulled over and ran to the small red car. The driver was
screaming, and Johnson said she would get her out of the vehicle.
A man (whom Johnson identified at trial as Bucci) also approached
the small vehicle, and Johnson asked him “to go check the SUV to
see if anybody was in the SUV was okay [ sic ].” Bucci responded,
“It was me, I was driving.” Johnson asked Bucci to help her extract
the driver from the burning vehicle. Bucci threw up his hands and
said, “Oh, my God. What I have done [ sic ]?” When Johnson
again asked Bucci to help her, Bucci responded, “I can't,” and
walked away. Another person at the scene (Jerry Fender) helped
Johnson remove the driver from the burning red car.

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Jerry Fender testified that he was driving eastbound on Highway 12
around 6:30 p.m. on November 17, 2006. He confirmed that
Highway 12 is a two lane highway with one eastbound lane and
one westbound lane, with a speed limit of 55 miles per hour.
Fender was travelling about 50 miles per hour behind two “semi
tractor trail[e]rs.” An SUV passed his vehicle at about 70-80 miles
per hour, even though there was “a solid yellow line on the east
bound lane indicating no passing.” FN2 The SUV did not veer or
move erratically, but proceeded in a “straight-ahead, aggressive
passing maneuver like you would normally do on a flat stretch of
road.” The SUV accelerated eastbound in the westbound lane,
passing one of the semi-trailers and attempting to pass the second.
When the SUV reached the crest of a hill, it collided head-on with
a red Toyota.

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FN2. On the night of the accident, Fender told the police he

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believed that Bucci's vehicle was traveling 65 to 70 miles per hour.
By either account, it was at least 10 miles per hour over the posted
speed limit.

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After passing the collision, Fender made a U-turn, stopped his
vehicle, and turned on his hazard lights to prevent other vehicles
from colliding with the wrecked Toyota, which had come to a stop
in the westbound lane. The SUV ended up in a field. When Fender
saw that the Toyota was on fire, he retrieved a fire extinguisher
from his vehicle and approached the Toyota, where he saw a
woman and three young children inside.

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2. Victim Jackson

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Victim Regina Jackson testified that, around 6:30 p.m. on
November 17, 2006, she was returning home to Fairfield from Rio
Vista in her red Toyota Corolla. In the car with her were three
passengers: her children Jordan and Immanuel; and Demari H., the
child of a friend.

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As Jackson drove westbound on Highway 12, she suddenly saw a
“car coming head-on into us passing two diesel trucks-trying to
pass two diesel trucks coming over a hill.” Jackson testified, “I
tried to go over to the right, but I couldn't. There was nowhere I
could go.” There was a head-on collision just as she crested the
hill.

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As a result of the collision, Jackson suffered debilitating injuries,
including a broken femur, knee, hip, and foot, with additional
injuries to her forehead, eye, and mouth. She remained in the
hospital for over two months. Imannuel and Demari H. died as the
result of the injuries they suffered in the accident; Jordan became
paralyzed from the waist down.

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3. Investigation

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Jason Bryant, an emergency medical technician, responded to the
scene. Bryant contacted Bucci and found him to be uninjured
except for pain in his elbow and back. Bucci stated he was the
driver of one of the vehicles in the collision. He told Bryant that he
believed he “fell asleep at the wheel.” Bucci appeared emotionally
upset and in tears, but was “cogent and responsive” to questions
and gave “logical, reasonable answers.”

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California Highway Patrol Officer Patricia Rodriguez conducted an
accident investigation at the scene. She confirmed there was a solid
yellow line indicating a no-passing zone for eastbound traffic going
up the hill where the collision occurred. She concluded that the red
Toyota was going westbound and was struck head-on by the SUV
that was travelling eastbound in the westbound lane.

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California Highway Patrol Officer Michael Ervin also responded to
the scene. Ervin contacted Bucci, who was cogent and lucid and
admitted he was the owner and driver of the SUV. According to
the officer's report, Bucci told the officer: He “momentarily fell
asleep, dozed off, realized he was traveling in the wrong lane.
Tried to speed up to pass a truck that was alongside of him. Saw
the victim vehicle coming towards him. And swerved to the left,
and the impact took place.”

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Officer Ervin asked Bucci if he had any health problems that might
have contributed to the accident. Bucci replied that he had sleep
apnea, but he denied being tired at the time of the accident. He did
not claim to have been exposed to any substance that could cause
him to lose consciousness.

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Based upon witness interviews and investigation of the scene,
Officer Ervin concluded that Bucci had violated the Vehicle Code
by crossing over a solid yellow roadway line that prohibited
passing and by attempting to pass while going up a hill. In short,
Ervin asserted, Bucci was “attempting to pass a passenger vehicle
and two semi-trucks uphill going the wrong way.” The officer
acknowledged that it was highly dangerous to drive well in excess
of the posted speed limit in order to pass multiple vehicles
approaching the crest of the hill.

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It was stipulated that testing found no drugs or alcohol in Bucci's
system. There were no skid marks on the road indicating that Bucci
tried to apply his brakes before the collision.

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4. Bucci's Prior Fatal Collision in 1994
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The prosecutor introduced evidence that Bucci was involved in a
head-on collision on Highway 80 in January 1994. Travelling
westbound, Bucci's pickup truck proceeded on the right shoulder
for over one thousand feet, then veered across the two westbound
lanes and the dirt center median before colliding head-on with a
Cadillac sedan in the eastbound lane. The occupants of the Cadillac
died as a result of the collision. At the scene, Bucci told California
Highway Patrol Officer Ty Brown that he had been up all night
gambling at casinos in Reno. He also admitted drinking alcohol
and smoking marijuana. Bucci stated that he apparently fell asleep
or blacked out while driving and awoke just before the collision.
Officer Brown concluded that the circumstances of the accident
were consistent with Bucci's claim.

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B. Defense Case
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1. Bucci
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As to the 1994 traffic accident, Bucci explained that he had been
awake for over 30 hours and fell asleep at the wheel; when he
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woke up, his car was out of control and he collided with another
car.

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As to the charged crimes, Bucci testified that on Friday, November
17, 2006, he was working as a sous chef at Google's main
headquarters in Mountain View. Over the weekend Google was
going to conduct tests related to transferring from electrical power
to solar power, and during those tests, the electrical energy would
be shut off. Therefore, 150 pounds of dry ice had been placed in a
10-foot by 20-foot walk-in freezer. Bucci was not warned of any
hazards of exposure to dry ice.
On November 17, Bucci inspected the food inventory of the
walk-in freezer containing the dry ice. After 10-15 minutes inside
the freezer, he became dizzy and short of breath. He left the freezer
and, when he went back in to complete his work, experienced the
same thing. He testified, “I really don't remember a lot of stuff after
that second time.” He had never experienced any adverse effects
after being in the walk-in freezer before.FN3
FN3. Other Google employees confirmed at trial that dry ice was
placed in the refrigerators and freezers and no safety instructions or
information concerning the proper handling of dry ice were given
to Bucci. One employee testified that Bucci had appeared healthy
and normal at work, but later in the day he appeared drawn, pale,
and ill. Bucci told him that while in one of the walk-in freezers, he
experienced dizziness that caused him to fall on a rack and hurt his
arm. He also complained of a severe headache.

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Around 3:00 p.m., Bucci left work and began driving from
Mountain View to Lodi. He testified that he could recall only “bits
and pieces” of the evening. He did not know how he found his
vehicle in the parking lot. He did not know how he got to Highway
12, which was not his intended route. He denied any recollection of
driving up an incline or trying to pass a truck. He remembered “a
Jack-in-the-Box and, uh, a tractor-trailer [to the right of him] and
then, uh, lights, and I, uh-I had swerved, I swerved to the left and I
saw the lights.” Then the collision occurred. The next thing he
remembered was being in an ambulance.
On cross-examination, Bucci acknowledged that he learned from
the 1994 incident that you can likely kill someone if you fall asleep
at the wheel. Bucci denied any recollection of telling EMT Bryant,
at the scene of the 2006 accident, that he fell asleep at the wheel.
Bucci also acknowledged knowing, as of November 2006, that
passing on a two-lane highway could be dangerous, and passing in
the wrong lane on a two-lane highway can be extremely dangerous
to oncoming traffic. He was also aware that “passing uphill over a
solid no-pass line towards the crest of a hill where you can't see is
life-endangering,” and “passing multiple vehicles at night uphill in
excess of a speed limit over the solid line is likely to kill
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somebody.” Bucci asserted that he would never pass uphill in a
no-passing zone and could not remember it happening.

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2. Expert Witnesses
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Bucci presented medical experts who testified that exposure to
large amounts of carbon dioxide can result in hypoxia, or oxygen
deprivation to the brain. Hypoxia can cause mental impairment and
loss of cognitive function. Specific symptoms could include loss of
memory and difficulties in attention and concentration. It might
affect a person's ability to perform complex tasks such as driving
an automobile at night and passing other motor vehicles.

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Neuropsychologist Darcy Cox opined that Bucci's actions after
being exposed to dry ice were consistent with his having a severe
hypoxic episode: his lack of memory, changes in vision, feeling
tired, feeling dizzy and confused, and driving out of his way. Dr.
Cox also opined that Bucci was clinically depressed and was
suffering from post-traumatic stress disorder based on his
involvement in the previous fatal accident in 1994. Because of this
disorder, she reasoned, Bucci must have assumed that the second
accident in 2006 was caused because he fell asleep at the wheel
again, and this may have been the reason he stated at the scene of
the 2006 accident that he believed he fell asleep.

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On November 28, 2011, petitioner filed the original petition raising
the following claims: 1) denial of due process by admission of
irrelevant and prejudicial evidence (claim one); 2) prosecutorial
misconduct (claims two and seven); 3) denial of due process as a
result of exclusion of evidence (claim three); 4) ineffective
assistance of counsel (claims 4-6); 5) cumulative error (claim
eight).

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People v. Bucci, 2010 WL 2512732 at *1-5 (2010).

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III. Discussion

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The instant action raises the following claims: 1) admission of irrelevant evidence

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(claim one); 2) prosecutorial misconduct (claims two and seven); 3) improper exclusion of

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evidence (claim three); 3) ineffective assistance of counsel (claims four, five and six); and 4)

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cumulative error (claim eight).

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Petitioner requests that this action be stayed while he exhausts his unexhausted

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claims pursuant to the procedures set forth in Rhines v. Weber, 544 U.S. 269 (2005). In the

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alternative, petitioner requests that this action be stayed pursuant to the procedures set forth in
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Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003).

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A. Procedural Background

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Knowledge of the procedural background of petitioner’s post-conviction

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proceedings is relevant to the court’s evaluation of the instant motion. Accordingly, the

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procedural background is set forth herein.

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Petitioner was convicted on February 9, 2009. (Dkt. No. 1 at 1.) Petitioner

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appealed to the California Court of Appeal, raising the following issues: 1) trial court erred in

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admitting prior bad act evidence in violation of petitioner’s federal constitutional rights; 2)

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insufficient evidence to sustain the murder convictions in violation of petitioner’s constitutional

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rights; 3) jury instruction error (2 claims); 3) trial court erred in excluding evidence that

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petitioner had been convicted and punished for prior bad acts; 4) prosecutorial misconduct; and

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5) improper application of enhancements. (Dkt. No. 1 at 2) On June 23, 2010, the California

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Court of Appeal upheld petitioner’s conviction. (Id.)

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On September 1, 2010, the California Supreme Court denied petitioner’s petition

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for review. (Id. at 2.) The petition for review raised the following claims: 1) improper

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application of enhancements; 2) trial court erred in admitting prior bad act evidence in violation

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of petitioner’s federal constitutional rights; 3) implied malice second degree murder in vehicular

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homicides should not apply to non-driving under the influence cases; and 4) prosecutorial

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misconduct. (Id. at 3.)

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On November 23, 2010, petitioner filed a habeas corpus petition in the Solano

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County Superior Court. (Id. at 3.) This petition alleged that the trial court erred in excluding

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receipts/invoices showing that dry ice was delivered to petitioner’s place of employment on the

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day in question. (Id.) On January 21, 2011, the Superior Court denied the petition. (Id.)

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Petitioner filed a habeas corpus petition in the California Court of Appeal raising

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two claims: 1) the trial court erred in excluding receipts/invoices showing that dry ice was

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delivered to petitioner’s place of employment on the day in question; 2) appellate counsel was
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ineffective for failing to raise this question on appeal. (Id. at 4.) On March 24, 2011, the

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California Court of Appeal denied this petition without prejudice to petitioner raising ground two

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in a petition filed in the Superior Court. (Id. at 4.)

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On April 29, 2011, petitioner filed a second petition in the Superior Court raising
the same two claims raised in his petition filed in the California Court of Appeal. (Id.)

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A civil wrongful death case was filed against petitioner and the State of California

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regarding the incident on which his conviction is based. (Dkt. No. 10-6 at 2.) The trial in this

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case was held in June and July of 2011. (Id. at 5.) The jury assessed damages of 29 million

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dollars. (Id.)

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In late September 2011, petitioner’s family retained the lawyer who is

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representing petitioner in the instant action, Mr. William L. Schmidt, to assess whether grounds

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existed to prosecute a habeas action. (Dkt. No. 10-5 at 2.) Mr. Schmidt reviewed documents

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from the civil action, including depositions taken of expert witnesses in June 2011. (Id.)

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According to Mr. Schmidt, the expert testimony revealed that petitioner had not committed an

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illegal act by crossing a double-yellow line when he initiated his passing maneuver, but also that

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Highway 12 was defective in its design, construction and maintenance, and that the State of

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California was aware of those deficiencies for several years preceding the November 2006

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incident on which petitioner’s conviction is based. (Id.) According to Mr. Schmidt, the evidence

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at the civil trial established, as conceded by the State of California, that an adequate line-of-sight

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in the area of the collision for a two-lane highway at 55 mph was at least 1,950 feet, but on

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Highway 12 it was only 300-350 feet; that the shoulders on either side of the roadway should

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have been at least 8 feet wide, but in fact did not exist on Highway 12. (Id.)

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Mr. Schmidt also represents that petitioner’s memory of the accident was so faulty

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that he could not swear that he had not crossed the double yellow line. (Id. at 2.) Mr. Schmidt

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states that petitioner still lacks personal knowledge of that fact. (Id.)

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On November 28, 2011, Mr. Schmidt filed the instant petition on petitioner’s
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behalf. (Dkt. No. 1.) On or around January 6, 2012, Mr. Schmidt filed a habeas corpus petition

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in the Solano Superior Court raising the unexhausted claims. (Dkt. No. 10-2.)

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B. Legal Standard for Stay and Abeyance

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In Rhines v. Weber, 544 U.S. 269 (2005), the United States Supreme Court held

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that a district court is permitted to stay a mixed petition – a petition containing both exhausted

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and unexhausted claims – in “limited circumstances,” so that a petitioner may present his

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unexhausted claims to the state court without losing his right to federal habeas review due to the

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relevant one-year statute of limitations. 544 U.S. at 273–275, 277–28. The “stay and abeyance is

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only appropriate when the district court determines there was good cause for the petitioner’s

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failure to exhaust his claims first in state court.” Id. at 277. Under Rhines, a district court must

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stay a mixed petition only if: (1) the petitioner has “good cause” for his failure to exhaust his

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claims in state court; (2) the unexhausted claims are potentially meritorious; and (3) there is no

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indication that the petitioner intentionally engaged in dilatory litigation tactics. Id. at 278.

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“Pursuant to the Kelly procedure, (1) a petitioner amends his petition to delete any

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unexhausted claims; (2) the court stays and holds in abeyance the amended, fully exhausted

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petition, allowing the petitioner the opportunity to proceed to state court to exhaust the deleted

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claims; and (3) the petitioner later amends his petition and re-attaches the newly-exhausted

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claims to the original petition.” King v. Ryan, 564 F.3d 1133, 1135 (2009) (citing Kelly, 315

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F.3d at 1070–71.) Kelly requires the petitioner to delete unexhausted claims such that only

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exhausted claims are stayed. See King, 564 F.3d at 1135 (outlining the Kelly procedure).

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In step three of the Kelly procedure, a petitioner is only allowed to add his

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newly-exhausted claims back into the federal petition if the claims either are independently

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timely under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) or “relate back” to

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the exhausted claims in the pending petition. See King, 564 F.3d at 1140–41. “An amended

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habeas petition does not relate back (and thereby escape AEDPA’s one-year time limit) when it

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asserts a new ground for relief supported by facts that differ in both time and type from those the
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original pleading set forth.” Mayle v. Felix, 545 U.S. 644, 650 (2005). A new claim “relates

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back” to an existing claim if the two claims share a “common core of operative facts.” Id. at 659.

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A new claim does not “relate back” to an existing claim simply because it arises from “the same

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trial, conviction or sentence.” Id. at 663–64.

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In contrast, under a stay predicated on Rhines, a petitioner need not worry about

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the statute of limitations because his unexhausted claims never leave federal court. See King,

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564 F.3d at 1139, 1140, citing Rhines, 544 U.S. at 277.

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C. Description of Unexhausted Claims

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Claim 3

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Claim 3 alleges that the trial court improperly excluded evidence that petitioner

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had, in fact, been convicted of crimes and punished for a 1994 accident in violation of

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petitioner’s right to due process, right to present a defense and right to confront witnesses. The

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background to this claim is contained in petitioner’s description of claim one, set forth herein:

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Petitioner was charged with 2 counts of second degree murder
under an implied malice theory based on a 2006 vehicle accident in
which it was stipulated that no alcohol or drugs were a factor. The
trial court, over objection, allowed the prosecution to introduce
evidence that in 1994 defendant had fallen asleep at the wheel,
abruptly awoke when his vehicle ran off the right shoulder,
overcorrected and crossed the center line, hitting another vehicle
head-on and killing the 2 occupants. The 2006 trial court
instructed the jury to consider the 1994 other act evidence only for
the purpose of proving that Petitioner “knew that falling asleep
while driving is dangerous to human life.” The defense theory
asserted in the 2006 case was involuntary intoxication by hypoxia,
not that petitioner fell asleep, and petitioner testified that he was
driving while sleepy was and is dangerous. The prosecutor
successfully objected to effort by Petitioner’s counsel to admit
evidence that Petitioner had been convicted/punished for 1994
accident, then argued to jury that “there’s 4 dead bodies and 2
ruined bodies behind him;” “I submit to you, he got away with it
before, when he dozed off, and he used the same excuse again.”
(Dkt. No. 1 at 5.)
In unexhausted claim three, petitioner alleges that the trial court improperly
excluded evidence that petitioner had, in fact, been convicted of crimes and punished for the
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1994 accident in violation of his constitutional rights. Petitioner contends that when defense

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counsel attempted to elicit from petitioner that he had not “gotten away with it,” as argued by the

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prosecutor, the prosecutor objected and the trial court said, “Sustained, let’s not go any further.”

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As noted above, petitioner alleges that while the factual basis of claim three was

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alleged in state court on direct appeal, the federal constitutional basis was not asserted, rendering

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this claim unexhausted. Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails

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to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim

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is unexhausted regardless of its similarity to the issues raised in state court.”)

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Claim Four
Claim four alleges that counsel was ineffective for failing to adequately

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investigate the facts and circumstances of the 2006 accident. The petition describes the

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supporting facts of this claim as set forth herein:

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At a pretrial hearing, the then-assigned judge asked counsel if the
trial would include testimony by “an accident reconstruction type
of person.” Defense counsel employed 2 neuropsychologicalmedical experts in support of the involuntary-intoxication-byhypoxia theory. After Petitioner’s conviction, a civil wrongful
death action was commenced against Petitioner and the California
Transportation Department (“CALTRANS”). Three accident
reconstruction experts, testifying for plaintiffs and the
defendant/Petitioner, opined, without contradiction, that when
Petitioner moved into the on-coming (Westbound) lane of traffic to
pass, he crossed a broken line on his side, indicating a lawful pass.
This is directly contrary to the theory of the prosecution in the
criminal case, which was that Petitioner had deliberately crossed a
“double line” to pass. This evidence would not only have disputed
the testimony of prosecution witnesses, it would have been solid
foundation for the admission of the proffered-but-excluded defense
evidence about flawed engineering of the highway, the substandard
distances for passing and line of sight. Indeed, one of the juror’s in
the criminal case had emphatically averred, “[W]e convicted him
for willfully and intentionally crossing the double yellow line in an
effort to get around two big rigs and a passenger vehicle.”
(Dkt. No. 1 at 10.)
Petitioner alleges that this claim is not exhausted because the factual basis of this
claim did not become known until on or around June 2011 when experts testified in the related
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civil case.

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Claims Five, Six, Seven and Eight

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In claim five, petitioner alleges that counsel was ineffective for failing to object

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and request curative instructions. The background to this claim is contained in the petition:
The prosecutor argued to the jury that petitioner had “killed before
and gotten away with it,” even though the prosecutor knew
petitioner had been convicted and punished for the 1994 accident.
The prosecutor also argued that petitioner had to be in the wrong
lane for 20 to 25 second; that the jurors should time how long that
is; that the prosecutor had “never, ever been over in somebody
else’s lane ... for that long People like us would never have
attempted that pass. We know that that’s dangerous.” As to the
defense experts, the prosecutor told the jury, “... they’re paid
thousands and thousands of dollars to try and come in here and
convince you of something that this [petitioner] didn’t even tell the
cops ... make no misunderstanding about it, these people are
bought.”
(Dkt. No. 1 at 12.)
In claim six, petitioner alleges that counsel was ineffective for failing to properly

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introduce evidence that petitioner had, in fact, been convicted and punished for the 1994

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homicides. The background to this claim is contained in the petition:

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The prosecutor succeeded in introducing a prolonged (50 pages of
Reporter’s Transcript) description of the 1994 accident that
resulted in the deaths of 2 people. On direct examination,
petitioner’s counsel did not ask petitioner if he had been convicted
and sentenced for those fatalities. On recross examination, the
prosecutor asked petitioner whether, with respect to the 2006
accident, he had thought back to the 1996 accident and decided to
come up with an excuse for the 2006 incident as well. Petitioner’s
objection was sustained, but on sur-redirect examination, defense
counsel asked petitioner if with respect to the 1994 accident he had
got away with it. The prosecutor’s objection was sustained. The
jury was never advised that petitioner had been convicted and
punished for the 1994 homicides.
(Dkt. No. 1 at 14.)
In claim seven, petitioner alleges that the prosecutor committed misconduct by

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urging the jury to consider the 1994 accident for purposes other than that instructed by the trial

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court. The background to this claim is contained in the petition:
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The prosecutor succeeded in introducing a prolonged (50 pages of
Reporter’s Transcript) description of the 1994 accident that
resulted in the deaths of 2 people to prove petitioner’s knowledge
of the dangerousness of driving while sleepy. The trial court
instructed the jury that this evidence could only be considered for
the purpose of showing whether or not petitioner knew that driving
while falling asleep was dangerous. The prosecutor argued to the
jury that the 1994 accident wasn’t introduced to show that
petitioner was acting in conformity with his character when he
again killed 2 people in 2006, but that if the jury looked at the
evidence, it would see that petitioner was acting in conformity with
his character.

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4
5
6
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8

(Dkt. No. 1 at 16.)

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In claim eight, petitioner alleges that the multiple constitutional errors deprived
him of his constitutional right to a fair trial. (Dkt. No. 1 at 18.)

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Petitioner alleges that claims five through eight were not exhausted due to the
“failings” of state appellate counsel.

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D. Analysis

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Claim Four

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Petitioner argues that he did not exhaust claim four, alleging ineffective assistance

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of counsel based on counsel’s failure to obtain an accident reconstruction expert, prior to filing

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this action due to ineffective assistance of counsel. Petitioner argues that several district courts

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have found that ineffective assistance of counsel constitutes good cause for a Rhines stay. In

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particular, petitioner cites Judge Hollows’ opinion in Abel v. Chavez, 2011 WL 4928689 (E.D.

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Cal. 2011).

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In Abel, Judge Hollows found that a petitioner may be able to demonstrate good
cause pursuant to Rhines if he can demonstrate that post-conviction counsel was ineffective.1

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1

Petitioner cites the following portion of Judge Hollows’ opinion in Abel:
It has elsewhere been observed that some courts have adopted the
procedural default standard as the cause standard in Rhines
context. Riner v. Crawford, 415 F.Supp.2d 1207, 1209–10 (D.Nev.
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Judge Hollows cited other cases finding that ineffective assistance by post-conviction counsel

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constituted good cause. In the instant case, petitioner does not claim that his appellate counsel

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was ineffective for failing to raise a claim alleging ineffective assistance of counsel based on trial

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counsel’s failure to obtain an accident reconstruction expert.2

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2006) (citing as the only in-circuit case, Hernandez v. Sullivan,
397 F.Supp.2d at 1207). However, the Riner court also went on to
note that, cases “such as Jackson v. Roe, 425 F.3d 654 (9th Cir.
2005), and the remanded Rhines v. Weber, 2005 WL 3466015,
*2–3 (D.S.D., December 19, 2005), conclude that the cause
standard of Rhines requires a lesser showing than that for
procedural default.” Id., 415 F.Supp.2d at 1210. The district judge
in Riner also noted, among the districts courts, a split of authority
on the question of whether ineffective assistance of post-conviction
counsel constitutes good cause to allow a stay of a federal petition,
observing that at least five district courts have found that such a
claim did qualify as good cause for failing to exhaust in state court
and at least three did not. Id., at 1210–11. The Riner court
concluded that:

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the good cause standard applicable in consideration
of a request for stay and abeyance of a federal
habeas petition requires the petitioner to show that
he was prevented from raising the claim, either by
his own ignorance or confusion about the law or the
status of his case, or by circumstances over which
he had little or no control, such as the actions of
counsel either in contravention of the petitioner's
clearly expressed desire to raise the claim or when
petitioner had no knowledge of the claim's
existence.

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Riner, 415 F.Supp.2d at 1211.
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Abel v. Chavez, 2011 WL 4928689 at *2-3 (emphasis added).

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2

In fact, petitioner’s appellate counsel would not have been unable to raise this claim as
it involved consideration of matters outside of the appellate record. People v. Anderson, 25
Cal.4th 543, 569 (2001) (where the record on direct appeal “does not show the reason for
counsel’s challenged actions or omissions, the conviction must be affirmed unless there could be
no satisfactory explanation.”) Because petitioner’s claim four involves matters outside the trial
record, it is more appropriately raised in a state habeas corpus petition. People v. Mayfield, 5
Cal.4th 142, 188 (1993) (claims of ineffective assistance are generally rejected on direct appeal
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2

For the following reasons, the undersigned finds that petitioner has shown good
cause for failing to exhaust claim four because this claim is based on newly discovered evidence.

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“Good cause” under Rhines is not clearly defined. However, the Ninth Circuit

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has explained that the Rhines “good cause” standard does not require a petitioner to show that

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“extraordinary circumstances” prohibited him from exhausting his claims. See Jackson v. Roe,

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425 F.3d 654, 661–62 (9th Cir. 2005) (“good cause” appears to be less stringent than

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“extraordinary circumstances”) (citation omitted). Nevertheless, the Ninth Circuit has indicated

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that although “extraordinary circumstances” are not required, a court must interpret Rhines’s

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“good cause” requirement “in light of the Supreme Court's instruction in Rhines that the district

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court should only stay mixed petitions in ‘limited circumstances.’” Wooten v. Kirkland, 540

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F.3d 1019,1024 (2008). In particular, where a petitioner was well aware of the factual basis of

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claims that could have been raised and exhausted in the state courts before petitioner filed a

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federal habeas petition, “good cause” for a stay may not have been shown under Rhines. See,

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e.g., Jackson v. Roe, 425 F.3d 654, 661–62 (9th Cir. 2005) (remanding case to district court for,

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inter alia, evaluation of petitioner’s reasons for not exhausting claims); Frluckaj v. Small, 2009

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WL 393776, at *5–6 (C.D. Cal. 2009) (finding that where petitioner was aware of claim and

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could have presented claim to California state courts before filing federal habeas petition,

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petitioner had not shown either “cause” or “good cause” to satisfy Rhines).

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The factual basis of claim four was discovered during a civil wrongful death suit

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filed against petitioner and the State of California. The factual basis of claim four was

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discovered well after petitioner had been convicted. Therefore, the factual basis of claim four

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was not known at the time petitioner filed his first round of state habeas petitions. In addition,

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petitioner admits that he, personally, did not and still does not know that he had not crossed a

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double yellow line. Petitioner did not become aware of this circumstance until the time of the

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and more properly raised in a petition for habeas corpus, which can include declarations and
other information outside the appellate record that reveal the reasons for the challenged conduct).
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1

civil action. Under these circumstances, petitioner cannot be faulted for failing to exhaust this

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claim prior to filing the instant action. See Fetterly v. Paskett, 997 F.2d 1295, 1301 (9th Cir.

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1993) (abuse of discretion found when court denied stay to exhaust newly discovered claims).

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Further, the fact that petitioner has already filed his petition with the Superior Court presenting

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his newly discovered claim weighs towards supporting AEDPA’s objective of encouraging

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finality and undermines AEDPA’s objective of streamlining federal habeas proceedings. Id. at

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1534.

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Finally, the undersigned finds that claim four is potentially meritorious and there
is no indication that petitioner intentionally engaged in dilatory litigation tactics regarding this
claim. Accordingly, petitioner’s motion to stay claim four pursuant to Rhines should be granted.

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Claim Three

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Turning to claim three, petitioner suggests that appellate counsel was ineffective

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for failing to allege a constitutional claim in the state appeal.3 As noted by respondent in the

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answer, petitioner was obviously aware of the factual basis of claim three. Petitioner has not

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demonstrated that he could not have exhausted this claim in a state habeas petition prior to filing

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the instant action. The alleged ineffective assistance of appellate counsel in failing to raise this

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claim did not prevent petitioner from exhausting this claim. Accordingly, the undersigned finds

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that petitioner has not demonstrated good cause for his failure to exhaust claim three prior to

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filing the instant action.

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Claims Five, Six and Seven

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Claims five, six and seven all concern the handling of petitioner’s 1994 accident.

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Petitioner suggests that good cause under Rhines exists for his failure to exhaust these claims

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prior to filing the instant action because appellate counsel was ineffective for failing to raise

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these claims. However, the undersigned agrees with respondent that petitioner was aware of the

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3

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It is not clear that this claim, alleging state law error only, was raised in the petition for
review filed in the California Supreme Court.
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1

factual basis of these claims because he was present at trial and personally observed the alleged

2

constitutional violations. In addition, these claims are based on claims litigated in the direct

3

appeal, of which petitioner was aware. Petitioner could have filed a habeas corpus petition to

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exhaust these claims. In addition, two of these claims allege ineffective assistance of counsel

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which are more appropriately raised in a state habeas petition. Accordingly, the undersigned

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does not find that petitioner has demonstrated good cause for his failure to exhaust these claims

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prior to filing the instant action.

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Claim Eight

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In claim eight, petitioner alleges cumulative error based on all of the claims raised

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in the instant action. Because petitioner has not demonstrated good cause for his failure to

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exhaust his other unexhausted claims prior to filing this action, the undersigned does not find that

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petitioner has demonstrated good cause for failing to exhaust claim eight.

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E. Conclusion

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For the reasons discussed above, the undersigned recommends that petitioner’s

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motion to stay claim four pursuant to Rhines be granted. Petitioner’s motion to stay the

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remaining unexhausted claims pursuant to Rhines should be denied. However, petitioner’s

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request that these claims be stayed pursuant to the procedures set forth in Kelly should be

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granted. Rather than ordering petitioner to file an amended petition containing his exhausted

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claims and claim four only, the claims stayed pursuant to Kelly should be stricken. Following

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exhaustion of these claims, petitioner should be permitted to file an amended petition containing

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all of his exhausted claims.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s motion to stay (Dkt. No. 10) be granted and this action be

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administratively closed;
2. Petitioner’s motion to stay claim four pursuant to Rhines be granted;
petitioner’s motion to stay claims three, five, six, seven and eight pursuant to Rhines be denied;
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3. Petitioner’s motion to stay claims three, five, six, seven and eight pursuant to
Kelly be granted; these claims should be stricken from the petition.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 12, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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buc147.157

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