King v. Davey

Filing 50

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 07/11/17 ORDERING that respondent's 06/05/17 request to stay the briefing schedule 48 is granted and the briefing schedule set forth in ECF 39 is hereby V ACATED. Also, RECOMMENDING that the 4/14/17 motiion to stay 40 be denied, and the amended 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). Motion to Stay 40 referred to Judge William B. Shubb. Objections due within 14 days. (Plummer, 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,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
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. The court dismissed the petition on March 27, 2017 as partially unexhausted.

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ECF No. 36. Petitioner filed an amended petition on March 31, 2017 (ECF No. 38) and a motion

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to stay the case on April 14, 2017 (ECF No. 40). Respondent opposes the motion to stay, arguing

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that the amended petition includes an unexhausted claim and that a stay would be futile because

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any claims that would be added back after exhaustion in the California Supreme Court would not

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be timely. ECF No. 44. For the reasons that follow, it is recommended that the motion to stay be

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denied as premature. It is further recommended that the case be dismissed without prejudice and

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

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exhausted claims. Accordingly, the court vacates the schedule set in the order filed April 6, 2017

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(ECF No. 39) directing respondent to file an answer to the amended petition. A new briefing

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schedule will issue when appropriate.

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I.

Background
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.’s Notice of Lodging Document in Paper,

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Lodged Document (hereinafter Lod. Doc.) No. 1. He received a sentence of fifty-years-to-life on

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April 25, 2014. Id. The California Court of Appeal affirmed the conviction on May 28, 2015.

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

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Nos. 3, 4. Petitioner has filed one state habeas petition, in the state superior court. He has not

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filed a habeas petition in the California Supreme Court.

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In his original petition, petitioner asserted the following claims:
1. That his Fifth Amendment rights were violated when he was “manipulated by the
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

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based on her mental health issues;

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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;
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9. That trial counsel was ineffective for failing to request proper jury instructions,

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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

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to proceed in the manner petitioner wished;
12. That the prosecutor unlawfully testified regarding the import of the position of the

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victim’s body;
13. That the prosecutor unlawfully influenced the jury by presenting argument that was

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not supported by the evidence;
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;
15. That the prosecutor unlawfully presented conflicting jury instructions (on pre-textual

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self-defense and lying-in-wait);
16. That the prosecutor unlawfully coached Loretta Turpen and knowingly allowed her to

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commit perjury;
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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The court concluded in its prior order that claims one, two, four, six, ten, eleven, twelve, thirteen,

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fourteen, sixteen, and seventeen had not been exhausted. ECF Nos. 35, 36. The court dismissed

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the petition and invited petitioner to file an amended petition containing only exhausted claims

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and to thereafter seek a stay of the proceeding while exhausting any remaining claims in the state

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court. Id.

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Petitioner thereafter filed an amended petition. ECF No. 38. From review of that
document, these claims can be discerned:
(A) That he was convicted of first-degree murder without sufficient evidence (id. at 11,
110);
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(B) That the trial court erred by instructing the jury on lying-in-wait because the evidence

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did not support the instruction (id. at 12);

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(C) That a model jury instruction provided to the jury (CALCRIM 521) erroneously failed

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to require that lying-in-wait be the means by which the murder is accomplished (id. at

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16);

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(D) That cumulative errors (premised on “issues of self-defense, provocation, and the

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degree of the homicide”) rendered the trial unfair (id. at 20);

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(E) That the trial court erroneously provided the jury with an instruction on pretextual

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self-defense (CALCRIM 3472) (id. at 66);

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(F) That his attorney rendered ineffective assistance by failing to object to CALCRIM

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3472 (id. at 95);

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(G) That his attorney rendered ineffective assistance by failing to request a jury instruction

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on the effect of provocation on the degree of murder (CALCRIM 522) (id. at 105);

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(H) That the trial court had a sua sponte duty to give CALCRIM 522, which it failed to do

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(id. at 106);

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(I) That the prosecutor committed misconduct by requesting CALCRIM 521 and 3472

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(id. at 109);

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(J) That the prosecutor committed misconduct by misleading the jury with false evidence

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(id. at 5);

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(K) That the prosecutor committed misconduct by seeking a conviction for first-degree

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murder even though the evidence supported a lesser charge (id.).

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II.

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The Motion to Stay
Petitioner has filed a one-page motion to stay the case under Kelly v. Small, 315 F.3d 1063

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(9th Cir. 2002), while he exhausts other claims in state court. ECF No. 40. Respondent argues

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that a stay is inappropriate because petitioner has included unexhausted claims in the amended

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petition. ECF No. 44. Respondent further argues that a stay would be futile because the claims

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that have not yet been exhausted would be untimely if added back to the petition now. Id.

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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
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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The amended petition contains potentially three claims of prosecutorial misconduct

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(labeled as (I), (J), and (K), above). The undersigned has reviewed petitioner’s petition for

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review in the California Supreme Court. Lod. Doc. No. 3. It does not contain any claim of

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prosecutorial misconduct. These claims are therefore unexhausted.

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Because the petition contains unexhausted claims, the undersigned recommends that

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motion to stay be denied as premature and the petition be dismissed. Because the motion to stay

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is premature, the court need not at this time analyze whether a stay would be futile due to the

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timeliness of the currently unexhausted claims. The dismissal should be without prejudice and

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with leave to amend, however, to allow petitioner one more opportunity to file an amended

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petition containing only his exhausted claims – that is, claims he has already raised in the

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California Supreme Court. He may thereafter seek a stay under Kelly while he presents the

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remaining claims to the California Supreme Court.

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III.

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Conclusion and Recommendation
For the foregoing reasons, it is hereby ORDERED that respondent’s June 5, 2017 request

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to stay the briefing schedule (ECF No. 48) is GRANTED and the briefing schedule set forth in

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ECF No. 39 is hereby VACATED.

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It is further RECOMMENDED that the April 14, 2017 motion to stay (ECF No. 40) be

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DENIED, and the amended petition be dismissed with leave to amend to allow petitioner the

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opportunity to file a fully exhausted petition and then seek a stay under Kelly v. Small, 315 F.3d

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1063 (9th Cir. 2002).

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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: July 11, 2017.

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