Taylor v. Brown, et al

Filing 252

ORDER Re Cause and Prejudice for Procedural Default or Fundamental Miscarriage of Justice. Signed by Judge Edward M. Chen on 2/23/2015. (emcsec, COURT STAFF) (Filed on 2/23/2015)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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FREDDIE LEE TAYLOR,

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No. C-92-1627 EMC

Petitioner,
DEATH PENALTY CASE

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For the Northern District of California

United States District Court

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v.
RON DAVIS, Acting Warden of the California
State Prison at San Quentin,

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Respondent.
___________________________________/

ORDER RE CAUSE AND PREJUDICE
FOR PROCEDURAL DEFAULT OR
FUNDAMENTAL MISCARRIAGE OF
JUSTICE

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I.

INTRODUCTION

Petitioner was convicted and sentenced to death for the robbery, attempted rape and murder

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of an 84-year-old woman in January 1985. The California Supreme Court affirmed petitioner’s

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conviction and death sentence in 1990. People v. Taylor, 52 Cal. 3d 719 (1990). Petitioner’s state

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petition for writ of habeas corpus was denied in September 1990; his petition for a writ of certiorari

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was denied by the United States Supreme Court in October 1991.

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Petitioner filed his first federal Petition for Writ of Habeas Corpus on July 10, 1995. His

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First Amended Petition was filed on April 30, 1997, and his second state petition was filed on June

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27, 1997 with the California Supreme Court. The second state petition was denied on July 16, 2003.

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All of the claims were denied on the merits, and certain claims were also denied on state procedural

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grounds. Petitioner’s Second Amended Petition was filed in federal court on March 12, 2004; a

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portion of that petition was found to be unexhausted. Petitioner’s third state habeas, filed on

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September 12, 2005, was denied on September 11, 2013.

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In 2005 this Court ruled that once Petitioner had exhausted all of his claims in state court, it

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would then entertain briefing on cause, prejudice, and fundamental miscarriage of justice on claims

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which had been procedurally defaulted. Having exhausted all of his claims in state court, petitioner

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now returns to this Court. Petitioner seeks to have the Court consider the merits of Claim 6 of his

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Second Amended Petition, arguing that cause and prejudice exist for excusing the procedural default

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of the claim, or that in the alternative failure to consider Claim 6 on the merits would result in a

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fundamental miscarriage of justice. Petitioner, by this motion, also requests a ruling by the Court

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acknowledging that Claim 9F of the Second Amended Petition has now been fully exhausted and

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can be considered on the merits.1 For the following reasons, Petitioner’s motion is GRANTED as it
relates to the finding by the Court of exhaustion of Claim 9F, and DENIED WITHOUT

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For the Northern District of California

United States District Court

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PREJUDICE as it relates to Claim 6, until such time as it may be renewed in conjunction with the

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Court’s resolution of Claims 19 and 20 the Second Amended Petition.

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II.
A.

BACKGROUND AND PROCEDURAL HISTORY

Trial/Post-Trial

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Mr. Taylor was convicted in state court in California in 1986 of first-degree murder, robbery,

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burglary, and attempted rape. Second Amended Petition, Docket No. 229, ¶¶ 2-3. The jury declined

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to find special circumstances based on attempted rape; however, the jury found felony-murder

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special circumstances based on the murder being committed in the course of robbery and burglary.

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Id.

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After trial, trial counsel for Mr. Taylor filed both a motion for a new trial and a separate

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request for the trial court to strike the special circumstances. The argument underlying the motion

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for a new trial was that insufficient evidence supported the special circumstances findings of the

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jury. The new trial motion argued that based on the testimony of the pathologist, conclusions that

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defendant intended to kill the victim, and that he was insane at the time and thus had not formed the

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requisite intent, were equally reasonable. Trial counsel further argued that given the equally

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reasonable conclusions, in order for the special circumstances requiring the death penalty to come

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Respondent does not dispute that claim 9F has been procedurally exhausted and can now be
considered by the Court.

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into play, the government bore the burden of negating the possibility that defendant did not have the

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requisite intent, and that the government had not done so. The trial court denied both of these

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motions.

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B.

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State Appeal/State Habeas
On August 4, 1988, Mr. Taylor’s appellate counsel filed an automatic appeal in the

an attempt to compel the Court of Appeal to overturn defendant’s murder conviction and imposition

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of the death penalty. The appellate brief did not, however, include a claim specifically arguing that

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insufficient evidence supported the jury finding of special circumstances. See Docket No. 229-1.

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The appeal was denied in a lengthy written opinion on December 31, 1990. People v. Taylor, 52

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For the Northern District of California

California Supreme Court. The appeal brief was over 300 pages long and contained 32 arguments in

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United States District Court

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Cal.3d 719 (1990), Docket No. 229-3.

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On July 7, 1989 appellate counsel filed an initial pro forma habeas corpus petition in the

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California Supreme Court. The state habeas petition was much more limited – raising only seven of

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the arguments which appellate counsel had included in the automatic appeal brief referenced above.

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The habeas petition was denied without comment on September 26, 1990. Id. ¶ 8.2

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C.

Federal Habeas

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1.

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Federal habeas counsel was appointed for Mr. Taylor on June 12, 1992, and counsel filed

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Mr. Taylor’s first federal petition for writ of habeas corpus on July 10, 1995. Id. ¶¶ 11-12. After

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denying Respondent’s initial motion to dismiss the petition or to compel exhaustion of claims, this

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Court reconsidered its earlier ruling and issued an order on April 1, 1997 specifying which claims

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were unexhausted and granting Mr. Taylor leave to file the unexhausted claims in the California

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Supreme Court. Id. ¶ 15.

The First Federal Petition

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On March 25, 1991, appellate counsel made a motion for appointment of second counsel in
the California state court. As part of that Motion he filed a declaration asking to be removed as
habeas counsel due to his inexperience with habeas petitions, although he represented that he had
sufficient experience with direct appeals. See Docket No. 229-5. The Supreme Court for the State
of California denied the request on April 11, 1991. Id.

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On June 25, 1997, Mr. Taylor filed his second exhaustion petition in the California Supreme

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Court. Id. ¶ 17. That petition was denied on the merits and on various procedural grounds on July

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16, 2003. Id. ¶ 18.

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2.

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In accordance with the Court’s April 1, 1997 Order, Mr. Taylor filed a Second Amended

The Second Amended Petition

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Petition in this Court on March 12, 2004. Docket No. 229. The Second Amended Petition presents

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a total of 20 claims for relief. Four of those claims are relevant to this motion. Claim 6 argues that

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insufficient evidence supported the jury findings of special circumstances for the robbery and

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attempted rape verdicts.3 Claim 9F asserts ineffective assistance of trial counsel based on his alleged

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For the Northern District of California

United States District Court

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failure to seek consultation from an independent pathologist. Docket No. 229 ¶¶ 193-205.
Claim 19 asserts that Petitioner was denied the effective assistance of appellate counsel, in

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part because appellate counsel allegedly failed to raise meritorious issues on direct appeal, as well as

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in the state habeas proceedings. Second Amended Pet. at ¶ 473. This claim asserts that appellate

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counsel failed to raise “issues squarely presented by the trial record. . . .” Id. at ¶ 477. The Second

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Amended Petition further asserts that the failure to raise these issues was not the result of an

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intentional decision by appellate counsel and that counsel’s representation fell below an objective

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standard of reasonableness. Id. at ¶ 479. This claim concludes that but for the deficiencies of

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appellate counsel, “it is reasonably likely that the outcome of state post-conviction proceedings

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would have been different.” Id. at 482. Claim 20 alleges actual innocence of the Petitioner. Docket

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No. 229 ¶ 274.

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Respondent answered the Second Amended Petition on July 26, 2004, raising procedural

22 default as an affirmative defense to certain of Mr. Taylor’s claims. Docket No. 187. On October 5,
23 2004, the Court ordered Respondent to file a motion concerning the claimed procedural default, and
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Claim 6 is entitled “The Evidence Was Legally Insufficient to Support the Special
Circumstances, Robbery and Attempted Rape Verdicts.” In this claim, Petitioner concedes that the
evidence presented was legally sufficient to support both the underlying burglary conviction, and the
conviction for felony murder based on the burglary. Second Amended Pet. at ¶ 195.
However, Petitioner “strongly contests the legal sufficiency of the evidence to support the
conviction of any crime” other than the burglary, and most importantly the special circumstances
found by the jury, which at that time required proof of intent to kill. Second Amended Pet. at
¶ 196.

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1 ordered the parties to brief only “the issue of independent and adequate state grounds.” Docket No.
2 192. The Court indicated it would request additional briefing on “the cause, prejudice, and
3 miscarriage of justice exceptions to default” only if it found Mr. Taylor had defaulted on any of his
4 claims. Id.
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Respondent thereafter filed a motion to dismiss Claims 1-8, 9.B-9.E, 9.G-9.M, 11-13, 15.A

6 and 18-20 as barred by the California Supreme Court’s denial of those claims as untimely in Mr.
7 Taylor’s exhaustion petition. Docket No. 194. Respondent also asserted that Claim 6, which
8 challenged the sufficiency of the evidence presented at trial for Mr. Taylor’s special circumstances,
9 robbery, and attempted rape verdicts, had been procedurally defaulted pursuant to In re Lindley, 29

11 evidence claims are not raised on direct appeal. See also Carter v. Giurbino, 385 F.3d 1194, 1197
For the Northern District of California

United States District Court

10 Cal. 2d 709 (1947). Docket No. 194 at 19. A Lindley default occurs where sufficiency of the

12 (9th Cir. 2004). Additionally, Respondent sought to dismiss Claim 9F on the grounds that the claim
13 was unexhausted and therefore not cognizable in the proceedings. Id. at 15-16.
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On May 17, 2005, this Court granted in part and denied in part the motion to dismiss. Docket

15 No. 200. The Court rejected Respondent’s timeliness default argument in its entirety. However, the
16 Court found that Claim 6 had been procedurally defaulted pursuant to Lindley, but provided that Mr.
17 Taylor could brief cause and prejudice and/or fundamental miscarriage of justice once all other
18 claims had been exhausted. Id. at 9. The Court also found that a portion of Claim 9F (ineffective
19 assistance of counsel due to trial counsel’s failure to consult an independent pathologist) was
20 unexhausted. Id. at 6-7. The Court accordingly stayed and held in abeyance Mr. Taylor’s Second
21 Amended Petition pending exhaustion of that portion of Claim 9F and ordered Mr. Taylor to return to
22 federal court within thirty days of a final decision by the state court. Docket No. 206.
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Mr. Taylor filed his third state habeas petition to the California Supreme Court on September

24 12, 2005, which petition was denied on September 11, 2013, both on the merits and on procedural
25 grounds. Per this Court’s order, Mr. Taylor filed a status report once Claim 9F was fully exhausted.
26 Docket No. 215. This Court then lifted the stay. The Court provided that Mr. Taylor could submit a
27 brief on cause and prejudice and fundamental miscarriage of justice issues as to the defaulted Claim
28 6. Docket No. 245.

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III.

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STANDARD OF REVIEW

Under the doctrine of procedural default, federal courts will not review “a question of federal

3 law decided by a state court if the decision of that court rests on a state law ground that is
4 independent of the federal question and adequate to support the judgment.” Coleman v. Thompson,
5 501 U.S. 722, 729 (1991). In the habeas context, the procedural default doctrine furthers the interests
6 of comity and federalism. Coleman, 501 U.S. at 730. In all cases in which a state prisoner has
7 defaulted his federal claims in state court pursuant to an independent and adequate state procedural
8 rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the
9 default and actual prejudice as a result of the alleged violation of federal law. Alternatively, a court

11 a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). This
For the Northern District of California

United States District Court

10 may consider the claim if petitioner can demonstrate that failure to consider the claim would result in

12 includes failure to raise a claim on direct appeal. Murray v. Carrier, 477 U.S. 478, 485 (1986).
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IV.

DISCUSSION

14 A.

Claim 6

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Petitioner urges the Court to find that cause and prejudice excuse the procedural default of

16 Claim 6 of the Second Amended Petition. If the default were excused, the Court would be permitted
17 to determine the merits of Petitioner’s argument that insufficient evidence supported the special
18 circumstances findings at trial. Petitioner claims that the alleged ineffective assistance of appellate
19 counsel in not raising the insufficient evidence claim on direct appeal constitutes cause. Claim 19 of
20 the Second Amended Petition also argues that appellate counsel was ineffective due in part to his
21 failure to raise relevant claims on appeal. Petitioner notes that determination of appellate counsel’s
22 ineffectiveness in not raising on appeal the insufficient evidence argument embodied in Claim 6, may
23 require further development of a factual record, and urges the Court therefore to defer ruling on the
24 element of “cause” until the Court has developed the factual record supporting Claim 19.4 Mr. Taylor
25 further argues that he suffered actual prejudice: the reasonable probability that, but for the ineffective
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Petitioner also argues that an evidentiary hearing would permit the petitioner to present
evidence of prejudice to satisfy the second prong of the default analysis. See below.

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1 assistance of appellate counsel, his appeal with respect to the specific verdicts would have been
2 successful.
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Petitioner points the Court to a similar case in this District where the court permitted further

4 development of the factual record before determining whether ineffective assistance of counsel
5 constituted cause for a procedural default. See Walker v. Martin (previously Walker v. Ornowski),
6 Case No. C94-1997(N.D. Cal. 2006) (J. Armstrong) (Docket No. 150) (court defers determination of
7 “cause and prejudice” based on claim of ineffective assistance of counsel until evidentiary hearing
8 can be held). For the reasons discussed below, the Court finds merit in Petitioner’s suggestion, and
9 holds that this approach serves the goals of judicial economy.
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For the Northern District of California

United States District Court

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Petitioner claims that the “sole reason for Mr. Taylor’s default on Claim 6 was appellate

Cause

12 counsel’s failure to raise the critical issue of insufficiency of the evidence with respect to the special
13 circumstance” in Petitioner’s direct appeal. Pet. Opening Brief at 5:1–13. As set out in Pollard v.
14 White, 119 F.3d 1430 (9th Cir. 1997), the “Due Process Clause guarantees a criminal defendant
15 effective assistance of counsel on his first appeal as of right.” Id. at 1435. See also Douglas v.
16 California, 372 U.S. 353, 356-57 (1963). Demonstrating ineffective assistance of counsel under
17 Strickland v. Washington, 466 U.S. 668, (1984) is sufficient to demonstrate the “cause” prong of
18 Coleman. While ineffective assistance of counsel is cause for procedural default, “[a]ttorney error
19 short of ineffective assistance of counsel does not constitute cause.” Vansickel v. White, 166 F.3d
20 953, 958 (9th Cir. 1999) citing Murray v. Carrier, 477 U.S. 478, 492(1986).
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While Petitioner urges the Court to defer ruling on cause until it determines ineffective

22 assistance under Claim 19, Petitioner argues that the Court could also find ineffective assistance of
23 counsel on the current record. Counsel’s failure to raise on appeal an “obvious” claim for reversal of
24 the death verdict Petitioner asserts is so egregious that the Court could find ineffective assistance with
25 nothing more. Petitioner contrasts appellate counsel’s failure in this regard with the performance of
26 trial counsel, who while generally ineffective at trial, in this particular regard had recognized the
27 deficiency of the evidence at trial and had moved on that basis for a new trial and to have the special
28 circumstances stricken post-trial. Id. at 5:14-17.

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In effect, ruling on “cause” at this juncture would require the Court to make a finding that the

2 sole act of not including one additional claim, which had been raised and rejected twice before by the
3 trial judge, in a 300 page appeal brief which raised 32 separate other arguments supporting reversal of
4 the jury verdict and penalties constituted ineffective assistance of counsel per se. The Court finds
5 that making such determination at this juncture is premature. The Court concurs that further
6 development of the evidentiary record in this regard may answer some of the predicate findings
7 necessary under Strickland, such as whether the omission of this claim was a deliberate tactical act by
8 effective counsel, or merely inadvertence, supporting a potential finding of ineffective assistance.5
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Respondent’s arguments on the issue of “cause” miss the mark. Respondent focuses at length

11 can excuse a petitioner’s failure to have brought an ineffective assistance of trial counsel claim raised
For the Northern District of California

United States District Court

10 on case law discussing whether ineffective assistance of Post Conviction Remedy (“PCR”) counsel

12 for the first time in habeas proceedings. It is well established law that an attorney’s errors in a post13 conviction proceedings generally do not qualify as cause for a default. Coleman v. Thompson, 501
14 U.S. 722, 753-54 (1991) ; Martinez v. Ryan, 132 S.Ct. 1309, 1315 (2012) (cause for a default cannot
15 be found generally on an attorney’s errors in a postconviction proceeding); Dietrich v. Ryan, 740
16 F.3d 1237, 1242 (9th Cir. 2013) (ineffective assistance of counsel in a state PCR proceeding cannot
17 constitute cause to excuse a procedural default because there is no constitutional right to an attorney
18 in a state PCR proceeding.). This case law cited by Respondent is inapposite as such is not the
19 substance of petitioner’s argument for cause for default here.
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The underlying claim, Claim 6, is not one for ineffective assistance of trial counsel – it is for

21 insufficiency of the evidence which appellate counsel failed to raise on direct appeal. In fact,
22 Petitioner’s claim of ineffective assistance of appellate counsel is predicated in part on the
23 “effectiveness” of trial counsel who raised the issue of insufficient evidence at the trial level; it is trial
24 counsel’s competent act which arguably made it ineffective for appellate counsel to have failed to
25 raise the claim on appeal.
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Petitioner will still be required to make a motion for an evidentiary hearing. The Court is
not determining unequivocally at this juncture Petitioner’s entitlement to such hearing.

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2.

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Petitioner argues that in addition to having establishing cause, he can demonstrate prejudice.

Prejudice

3 Prejudice to excuse procedural default based on ineffective assistance of counsel is the same showing
4 of prejudice necessary under Strickland. See Vansickel v. White, 166 F.3d 953, 958-59 (9th Cir.
5 1999) (analyzing cause and prejudice for default due to ineffective assistance under Strickland
6 analysis). To demonstrate prejudice under Strickland, a habeas petitioner must demonstrate “a
7 reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings
8 would have been different.” Strickland, 466 U.S. at 694. “Reasonable probability” is a “probability
9 sufficient to undermine confidence in the outcome.” Id. Because the prejudice prong is also

11 the Court to consider the issue of prejudice as part of its determination of the merits of the ineffective
For the Northern District of California

United States District Court

10 subsumed into the Strickland analysis of ineffective assistance of counsel, Petitioner again exhorts

12 assistance claim, Claim 19.
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Petitioner argues in the alternative that the current record demonstrates that there is a

14 reasonable probability that, had the insufficiency claims been raised on direct appeal, the appeal court
15 would have found in favor of Petitioner as to those special verdicts. See Strickler v. Greene, 527 U.S.
16 263, 289 (1999). Such a finding requires the Court to review the evidence and to determine whether
17 there is a reasonable probability that the California Court of Appeal would have held that the jury
18 could not have found that Petitioner had the intent to kill from the evidence presented. See Carlos v.
19 Superior Court, 35 Cal.3d 131, 150 (1983).
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Respondent counters that such speculation is not necessary, as Claim 6 was presented to the

21 California Supreme Court, and the Court rendered a decision on the merits of Claim 6, denying the
22 claim. In re Freddie Lee Taylor, S062432 (Cal. July 16, 2003).
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In its July 2003 decision, the California Supreme Court in Taylor held, in pertinent part:

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The petition for writ of habeas corpus is denied. Claims I through XVII
are denied on the merits. Claims I through XIII, Claim XV, Claim XVI,
and Claim XVII are also procedurally barred, separately and
independently, as untimely. (In re Robbins (1998) 18 Cal.4th 770,
780-781; In re Clark (1993) 5 Cal.4th 750, 763-799). Claim VI is also
denied, separately and independently, as noncognizable on habeas
corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.) . . .

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1 http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=1794174&doc_no=S0
2 62432.
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Petitioner responds that while the language of this Order purports to dispose of Claim 6 on the

4 merits, it does not elaborate either on the portion or portions of Claim 6 which the Court was denying
5 on the merits, or explain its rationale for the denial. The state court decision does not automatically
6 preclude a finding of prejudice, as on federal habeas review the Court may “reweigh the evidence in
7 aggravation against the totality of available mitigating evidence.” Cullen v. Pinholster, 131 S. Ct.
8 1388, 1408 (2011) citing Wiggins v. Smith, 539 U.S. 510, 534 (2003). 6
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In their briefing, both Petitioner and Respondent proceed to elaborate on the evidence

11 Brief at pgs 7:17-8:26 (Docket No. 248) and Respondent’s Brief at 6:1-7:5 (Docket No. 249). The
For the Northern District of California

United States District Court

10 presented at trial in support of and contrary to a finding of intent to murder. See Petitioner’s Opening

12 parties’ reliance on a review of the factual record indicates that review of the prejudice prong is in
13 fact “inextricably intertwined” with the merits of the ineffective assistance of counsel claim, as well
14 as the factual innocence claim, discussed below.
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3.

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Petitioner additionally argues that this Court’s failure to review the merits of Claim 6 would

Fundamental Miscarriage of Justice

17 result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. A fundamental
18 miscarriage of justice occurs when a constitutional violation “has probably resulted in the conviction
19 of one who is actually innocent [of the offense for which he has been convicted].” Dugger v. Adams,
20 489 U.S. 401, 410 n.6 (1989). See also Schlup v. Delo, 513 U.S. 298, 301 (1995) (The phrase
21 “miscarriage of justice” in this context refers to actual innocence of the offense); Sawyer v. Whitley,
22 505 U.S. 333, 345 (1992); Murray v. Carrier, 477 U.S. 478, 496 (1986). In the context of Claim 6, a
23 finding of miscarriage of justice is not itself a constitutional claim but rather the “gateway through
24 which [he] must pass” to have his constitutional claim heard on the merits. Schlup v. Delo, 513 U.S.
25 298, 315 (1995).
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Petitioner argues that Pinholster does not apply since it is an AEDPA case and Petitioner’s
habeas was filed pre-AEDPA. However, as this aspect of the Pinholster case is merely addressing
the proper analysis under Strickland, its holding on this point is still relevant.

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Under Shlup, a demonstration of actual innocence requires the production of new, reliable

2 evidence supporting the actual innocence claim.7 Id. at 324. A petitioner must show that he is
3 actually innocent, and the habeas court must make its determination concerning the petitioner’s
4 innocence in light of all the evidence, including that alleged to have been illegally admitted, and
5 evidence claimed to have been wrongly excluded or to have become available only after the trial.
6 Schlup v. Delo, 513 U.S. at 305.
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Petitioner argues that because of the need to adduce evidence of actual innocence to support a

8 claim of fundamental miscarriage of justice, this issue is inextricably intertwined with Claim 20,
9 which alleges Mr. Taylor is factually innocent of the attempted rape and robbery convictions and of

11 perpetrator is newly discovered evidence.” Second Amended Petition at ¶¶ 484-85. Petitioner also
For the Northern District of California

United States District Court

10 capital murder. Claim 20 specifically alleges that the “evidence indicating that petitioner was not the

12 asserts in Claim 20 that there is newly discovered evidence as to his mental illness which is relevant
13 to his ability to form the requisite intent at the time of the crime. Id.
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Respondent counters that Petitioner has not “adduce[d] the kind of new reliable evidence”

15 necessary. Respondent further argues that Petitioner has not developed any new fact which would
16 require the Court to hold a hearing on the factual innocence claim. At this stage of the proceeding,
17 Respondent is correct. There is, by way of the Second Amended Petition, reference to “newly
18 discovered evidence” but beyond that as part of this motion, Petitioner has not made any of this
19 evidence part of the record before the Court. Without sufficient basis, neither Petitioner’s
20 fundamental miscarriage of justice argument, nor his actual innocence claim may proceed.
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The newly discovered evidence may be, as counsel suggests, intertwined with the ineffective

22 assistance of counsel claim. There is no advantage to hearing these same arguments in a piecemeal
23 fashion. Therefore, the Court finds that in the interests of judicial economy, it is appropriate to defer
24 ruling on fundamental miscarriage of justice until such time as Petitioner has made sufficient showing
25 on the basis for the Court to hear Claim 20 on the merits.
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“It is important to note in this regard that ‘actual innocence’ means factual innocence, not
mere legal insufficiency.” Bousley v. United States, 529 U.S. 614, 623 (1998); see also Sawyer v.
Whitley, 505 U.S. 333, 339 (1992) (“the miscarriage of justice exception is concerned with actual as
compared to legal innocence”).

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1 B.

Claim 9F

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Petitioner claims he has exhausted this claim and complied with the Court’s requirements and

3 so now the Court can proceed to consider this claim on the merits. The Respondent does not contest
4 this assertion. The Court finds that Claim 9F has been exhausted.
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V.

CONCLUSION

For the reasons stated above, the Court GRANTS Petitioner’s Motion as it relates to the

7 finding by the Court of exhaustion of Claim 9F, and DENIES WITHOUT PREJUDICE
8 Petitioner’s Motion Re Cause and Prejudice as it relates to Claim 6 until such time as it may be
9 renewed in conjunction with the Court’s resolution of Claims 19 and 20 in the Second Amended

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For the Northern District of California

United States District Court

10 Petition.
Within 30 days of the date of this Order, the parties should meet and confer, and submit a

12 joint proposed litigation schedule regarding briefing of the merits of petitioner's record-based claims.
13 For the purposes of efficiency, and to avoid the need for the filing of oversized briefs, the parties
14 should limit their first round of briefing to no more than ten claims, and to the extent possible, choose
15 claims that have similar factual and/or legal predicates.
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IT IS SO ORDERED.

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19 Dated: February 23, 2015
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_________________________
EDWARD M. CHEN
United States District Judge

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