King v. Davey

Filing 35

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/9/17 RECOMMENDING that the September 1, 2016 motion to dismiss (ECF No. 17 ) be granted, and that the petition be dismissed with leave to amend to allow petitioner the opportunity to file a fully exhausted petition and then seek a stay under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). Petitioner's motions to stay (ECF Nos. 27 , 30 ) be denied without prejudice. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY LEE KING,

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No. 2:16-cv-1464-WBS-EFB P

Petitioner,

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v.

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DAVE DAVEY,

FINDINGS AND RECOMMENDATIONS

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Respondent.

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Petitioner is a state prisoner proceeding without counsel in an action brought under 28

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U.S.C. § 2254. Respondent moves to dismiss the case as partially unexhausted. ECF No. 17.

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For the reasons that follow, it is recommended that the petition be dismissed without prejudice

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and that petitioner be allowed the opportunity to file an amended petition containing only his

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exhausted claims.

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I.

Background

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Petitioner was convicted of first degree murder with a sentencing enhancement in the

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Sacramento County Superior Court. ECF No. 14, Resp’t’s Notice of Lodging Documents in

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Paper, Lodged Document (hereinafter Lodg. Doc.) No. 1. He received a sentence of fifty-years-

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to-life on April 25, 2014. Id. The California Court of Appeal affirmed the conviction on May 28,

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2015. Lodg. Doc. No. 2. The California Supreme Court denied review on August 26, 2015.

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Lodg. Doc. Nos. 3, 4. Petitioner has filed one state habeas petition, in the state superior court.

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He has not filed a habeas petition in the California Supreme Court.
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In this action, petitioner asserts the following claims:

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1. That his Fifth Amendment rights were violated when he was “manipulated by the

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courts to take the stand and incriminate myself” (ECF No. 1 at 15);
2. That his Sixth Amendment confrontation clause rights were violated when the trial

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court allowed Anthony Barnes to testify regarding statements made by the victim

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before his death;

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3. That he was convicted of first-degree murder without sufficient evidence;

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4. That (a) the trial court erred by allowing mentally-incompetent witness Loretta Turpen

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to testify and (b) petitioner’s trial counsel was ineffective for not impeaching Turpen
based on her mental health issues;
5. A second claim that the evidence was insufficient to support a first-degree murder
conviction;
6. That his Sixth Amendment right to an impartial jury was violated because a juror

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knew the victim’s grandfather and “hung out” with the victim’s family outside the

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courtroom during trial;

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7. That the trial judge erred by giving instructions on lying-in-wait and pre-textual self-

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defense because (a) the evidence did not support the instructions and (b) the two

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instructions oppose each other;

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8. That trial counsel was ineffective for failing to review the instructions, particularly
CALCRIM 3472;
9. That trial counsel was ineffective for failing to request proper jury instructions,
particularly CALCRIM 522;
10. That trial counsel was ineffective because he didn’t object to the prosecutor’s

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argument that the hearsay testimony of Anthony Barnes established that the murder

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was first-degree;

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11. That trial counsel was ineffective because of various conflicts of interest and refusals
to proceed in the manner petitioner wished;

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12. That the prosecutor unlawfully testified regarding the import of the position of the

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victim’s body;

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13. That the prosecutor unlawfully influenced the jury by presenting argument that was

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not supported by the evidence;

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14. That the prosecutor unlawfully misled the jury with a power-point display that did not

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contain “the mental element” of first- and second-degree murder;

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15. That the prosecutor unlawfully presented conflicting jury instructions (on pre-textual

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self-defense and lying-in-wait);

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16. That the prosecutor unlawfully coached Loretta Turpen and knowingly allowed her to

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commit perjury;

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17. That the trial court erred by failing, sua sponte, to give CALCRIM 8.47 and 4.21

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regarding voluntary manslaughter and voluntary intoxication.

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Of the claims included in this action, eleven were not included in petitioner’s request for

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California Supreme Court review (claims one, two, four, six, ten, eleven, twelve, thirteen,

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fourteen, sixteen, and seventeen).

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II.

The Motion to Dismiss
Respondent argues that the petition should be dismissed because some of the claims raised

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by petitioner in the instant case have not been exhausted. ECF No. 17. Petitioner requests that

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the court to stay the case while he returns to state court to exhaust the unexhausted claims. ECF

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Nos. 19, 27, 30.

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A. The Exhaustion Requirement

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A district court may not grant a petition for a writ of habeas corpus unless the petitioner

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has exhausted available state court remedies. 28 U.S.C. § 2254(b)(1). A state will not be deemed

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to have waived the exhaustion requirement unless the state, through counsel, expressly waives the

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requirement. 28 U.S.C. § 2254(b)(3).

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Exhaustion of state remedies requires that petitioners fairly present federal claims to the

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highest state court, either on direct appeal or through state collateral proceedings, in order to give

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the highest state court “the opportunity to pass upon and correct alleged violations of its
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prisoners’ federal rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995) (some internal quotations

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omitted). “[A] state prisoner has not ‘fairly presented’ (and thus exhausted) his federal claims in

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state court unless he specifically indicated to that court that those claims were based on federal

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law.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000), amended by 247 F.3d 904 (9th Cir.

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2000). “[T]he petitioner must make the federal basis of the claim explicit either by citing federal

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law or the decisions of federal courts, even if the federal basis is self-evident . . . .” Id. (citations

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omitted); see also Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (“[A] claim for relief in

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habeas corpus must include reference to a specific federal constitutional guarantee, as well as a

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statement of the facts that entitle the petitioner to relief.”); Duncan, 513 U.S. at 365-66 (to

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exhaust a claim, a state court “must surely be alerted to the fact that the prisoners are asserting

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claims under the United States Constitution.”).

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In addition to identifying the federal basis of his claims in the state court, the petitioner

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must also fairly present the factual basis of the claim in order to exhaust it. Baldwin v. Reese, 541

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U.S. 27, 29 (2004); Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir. 2010). “[T]he petitioner

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must . . . provide the state court with the operative facts, that is, ‘all of the facts necessary to give

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application to the constitutional principle upon which [the petitioner] relies.’” Davis v. Silva, 511

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F.3d 1005, 1009 (9th Cir. 2008) (quoting Daugharty v. Gladden, 257 F.2d 750, 758 (9th Cir.

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1958)).

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Where a federal habeas petitioner has failed to exhaust a claim in the state courts

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according to these principles, she may ask the federal court to stay its consideration of her petition

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while she returns to state court to complete exhaustion. Two procedures may be used in staying a

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petition – one provided for by Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002) and the other by

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Rhines v. Weber, 544 U.S. 269 (2005). King v. Ryan, 564 F.3d 1133, 1138-41 (9th Cir. 2009).

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Under the Kelly procedure, the district court may stay a petition containing only exhausted claims

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and hold it in abeyance pending exhaustion of additional claims which may then be added to the

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petition through amendment. Kelly, 315 F.3d at 1070-71; King, 564 F.3d at 1135. If the federal

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petition contains both exhausted and unexhausted claims (a so-called “mixed” petition), a

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petitioner seeking a stay under Kelly must first dismiss the unexhausted claims from the petition
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and seek to add them back in through amendment after exhausting them in state court. King, 564

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F.3d at 1138-39. The previously unexhausted claims, once exhausted, must be added back into

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the federal petition within the statute of limitations provided for by 28 U.S.C. § 2244(d)(1),

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however. King, 564 F.3d at 1140-41. Under that statute, a one-year limitation period for seeking

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federal habeas relief begins to run from the latest of the date the judgment became final on direct

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review, the date on which a state-created impediment to filing is removed, the date the United

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States Supreme Court makes a new rule retroactively applicable to cases on collateral review or

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the date on which the factual predicate of a claim could have been discovered through the

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exercise of due diligence. 28 U.S.C. § 2241(d)(1). A federal habeas petition does not toll the

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limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 181-82

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(2001).

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Under Rhines, a district court may stay a mixed petition in its entirety, without requiring

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dismissal of the unexhausted claims, while the petitioner attempts to exhaust them in state court.

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King, 564 F.3d at 1139-40. Unlike the Kelly procedure, however, Rhines requires that the

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petitioner show good cause for failing to exhaust the claims in state court prior to filing the

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federal petition. Rhines, 544 U.S. at 277-78; King, 564 F.3d at 1139. In addition, a stay pursuant

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to Rhines is inappropriate where the unexhausted claims are “plainly meritless” or where the

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petitioner has engaged in “abusive litigation tactics or intentional delay.” Id.

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B. Analysis

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There is no dispute here that some of the claims raised in the petition have not been

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presented to the California Supreme Court. Accordingly, the petition is “mixed” and must be

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dismissed unless petitioner has shown good cause under Rhines to stay proceedings while he

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exhausts the unexhausted claims. King, 564 F.3d at 1140 (noting that, to obtain a stay without

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showing good cause under Kelly, the petitioner must first file an amended petition that contains

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only exhausted claims). Petitioner states only that he “was under the understanding my appeal

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attorney did everything he was suppose to do [sic].” ECF No. 19 at 1. Petitioner’s mistaken

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impression that his attorney had exhausted the claims does not constitute “good cause” under

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Rhines. Wooten v. Kirkland, 540 F.3d 1019, 1023-24 (9th Cir. 2008). Petitioner also states that
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he thought that a federal habeas petition was “the next thing” after filing a habeas petition in the

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state superior court. Petitioner’s ignorance of the law is also not “good cause.” Hamilton v.

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Clark, No. CIV S-08-1008 EFB P, 2010 U.S. Dist. LEXIS 20035, at *4 (E.D. Cal. Feb. 9, 2010)

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(“Ignorance of the law and limited access to a law library are common among pro se prisoners

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and do not constitute good cause for failure to exhaust.”).

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Because the petition contains unexhausted claims and petitioner has not provided good

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cause for staying the case, the undersigned recommends that the petition be dismissed. The

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dismissal should be without prejudice and with leave to amend, however, to allow petitioner to

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file an amended petition containing only his exhausted claims (and he may thereafter seek a stay

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under Kelly while he presents the remaining claims to the California Supreme Court).
III.

Conclusion and Recommendation

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For the foregoing reasons, it is hereby RECOMMENDED that:

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1. The September 1, 2016 motion to dismiss (ECF No. 17) be granted, and that the

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petition be dismissed with leave to amend to allow petitioner the opportunity to file a

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fully exhausted petition and then seek a stay under Kelly v. Small, 315 F.3d 1063 (9th

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Cir. 2002).

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2. Petitioner’s motions to stay (ECF Nos. 27, 30) be denied without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 9, 2017.

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