Jastraub v. Barnes

Filing 32

ORDER signed by Magistrate Judge Gregory G. Hollows on 10/20/2015 ORDERING petitioner may file a supplemental traverse, within 30 days, in accordance with this order. After receipt of the traverse, the court will determine whether, in fairness, respondent need make any further elaboration of his discussion on the merits; respondent may advise the court of any desire for further response within 10 days after the traverse is filed. (Yin, K)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

MICHAEL JAUSTRAUB,

11

Petitioner,

12
13

No. 2:13-cv-1036 JAM GGH

v.

ORDER

SCOTT FRAUENHEIM,
Respondent.1

14
15
16
17

Introduction and Summary

18

As set forth by the Court of Appeal:

19

[Petitioner] was charged with second degree murder, two counts of
driving under the influence causing injury, unlawful possession of
methamphetamine, unlawful possession of clonazepam, being
under the influence of methamphetamine, possession of
clonazepam pills without a prescription, possession of drug
paraphernalia, driving without a valid license, driving without
insurance, and leaving the scene of an accident. It was further
alleged that, with respect to the murder and driving under the
influence, defendant personally inflicted great bodily injury, and
had a prior serious felony conviction, a strike.

20
21
22
23
24

A jury found defendant guilty of all charges and found the special
allegations true with the exception of two of the personal infliction
of great bodily injury allegations. The trial court found the prior
strike allegation true.

25
26
27
28

1

It appears that petitioner has transferred prisons, and that the above named person is the warden
of the prison at which plaintiff currently resides.
1

1

The trial court sentenced defendant to state prison for an
indeterminate term of 30 years to life, plus a consecutive
determinate term of 11 years and 4 months, imposed specified fees
and fines….

2
3
4

People v. Jaustrab, 2012 WL 1353554 *2 (Cal. App. 2012).

5

Issues

6

Petitioner filed a federal petition listing numerous claims; however, the rendition of the

7

issues in the petition is unnecessarily confusing. The federal petition lists as issues:
1. Federal Constitutional error, Prejudicial Error, and under supporting facts “Following

8

in it’s entirety. Table of Contents (A) A1-A23.”

9

2. Petitione[r] is innocent of the crimes against him, and under supporting facts:

10
11

“Followin table of contents A, will be table of contents B following the federal

12

Constitutional error A-A23.”
3. I.A.C. attorney refused to recall Destiny Estrada in my defence (sic) (supporting fact

13

given)

14

4. Trial court denied Marsden motion, and in supporting facts: “outlined in table of

15

contents B as ground 8. All grounds 1-8 in Table of Contents B.”

16
17

Respondent interpreted these vague statements as incorporating the eight issues raised in

18

each state habeas motion—Superior Court, Court of Appeal, and Supreme Court. The traverse,

19

evidently written by a person other than petitioner, adopted this delineation of issues. This had

20

the effect, however, of abandoning the admission of prejudicial evidence issue raised on direct

21

appeal and on petition for review before the California Supreme Court.

22

However, in the traverse, petitioner conceded that all but two of the eight issues should be

23

dismissed because of procedural default. See Traverse at 1-2, para 8 withdrawing claims.2 Thus,

24

only two claims were discussed on the merits.
After the traverse was filed, the Ninth Circuit eviscerated the basis of the procedural

25
26
27
28

2

Petitioner concluded that the claims should be dismissed without prejudice. However, because
a successive petition would almost always be barred, the effective result is that the claims are
dismissed—period—whether with or without prejudice.
2

1

default, the Dixon bar, i.e., one cannot raise in state habeas corpus issues which should have been

2

raised on direct review. Lee v. Jacquez, 788 F.3d 1124 (9th Cir. 2015). Although not banning

3

the use of this procedural default per se, the opinion leaves little doubt that the Dixon procedural

4

default is completely ineffectual in federal habeas-- absent a statistical analysis of enormous time

5

and expense (a case-by-case analysis for a set of thousands of state habeas cases when the bar

6

should have been utilized by the state courts, but was not, and then compared to cases in which

7

the bar was utilized), or some other undefined, non-statistical analysis or event which the

8

undersigned cannot conceive of at the present time.

9

If the undersigned allowed petitioner’s concession in the traverse to stand, it is predictable

10

that the case would be inevitably returned for review on the merits of the claims abandoned by the

11

traverse’s ill advised concession. Rather than waste that time, the undersigned will order that

12

petitioner be given an opportunity to respond on the merits in a supplemental traverse.

13

Accordingly, IT IS HEREBY ORDERED:

14

1. If Petitioner desires to file a supplemental traverse, such shall be filed within thirty days;

15

2. The supplemental traverse shall include a discussion of every claim on the merits which

16

petitioner desires to have reviewed on the merits; each claim shall be singularly listed in a

17

heading along with a following discussion of that issue;

18

3. Petitioner shall not incorporate by reference any discussion in any previous document

19

concerning any issue; that is, the traverse shall be inclusive in itself of a discussion of all

20

claims;

21

4. After receipt of the traverse, the court will determine whether, in fairness, respondent

22

need make any further elaboration of his discussion of the issues on the merits; respondent

23

may advise the court of any desire for further response within 10 days after the traverse is

24

filed.

25

Dated: October 20, 2015

26

/s/ Gregory G. Hollows

27
28

UNITED STATES MAGISTRATE JUDGE
GGH:Justraub

3