Johnson v. Brown, et al

Filing 261

ORDER GRANTING STAY by Judge William H. Orrick granting 257 Motion to Stay. (jmd, COURT STAFF) (Filed on 12/7/2022)

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 1 of 6

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

LAVERNE JOHNSON,
Petitioner,

8
9
10

United States District Court
Northern District of California

11

Case No. 95-cv-00305-WHO
ORDER GRANTING STAY

v.
RON BROOMFIELD, Warden at San
Quentin State Prison
Respondent.

12
13
14
15
16
17
18
19

INTRODUCTION
Petitioner Laverne Johnson has filed a motion requesting a stay of his federal habeas
proceedings pending his exhaustion of claims M, AA and BB in state court. The Hon. Thelton E.
Henderson, to whom this case was previously assigned, deferred ruling on these claims pending
the resolution of similar claims raised by Troy Ashmus in Ashmus v. Broomfield, C-93-0594 (N.D.
Cal. 2014). Ashmus died in 2020 and his federal habeas petition was dismissed. Petitioner would
now like to pursue claims M, AA and BB in state court. Respondent opposes his request.

20

Because good cause exists for petitioner’s failure to exhaust at least one of his claims, there is

21

potential merit to his claims challenging California’s death penalty statute, and he has not been

22
23
24
25
26
27
28

dilatory, I will grant the stay.
BACKGROUND
Petitioner was convicted and sentenced to death by San Mateo County Superior Court in
1988 for the murder of Maria Victoria Holmes and Luisa Anna Castro. The California Supreme
Court affirmed his conviction and sentence in 1993. People v. Johnson, 6 Cal. 4th 1 (1993).
Petitioner filed his first federal habeas petition on April 22, 1997. Following exhaustion

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 2 of 6

1

and amendment proceedings, petitioner filed his second amended petition on May 25, 2001. ECF

2

Dkt. No. 184. All of petitioner’s claims, with the exception of claims M, AA, BB, N, X, Z and

3

DD, have been resolved.

4

Claim M challenges the constitutionality of California’s death penalty statute, alleging that

5

the statute fails to narrow the class of defendants eligible for the death penalty. Claim AA alleges

6

that California’s death penalty statute is unconstitutional because it fails to instruct the jury on the

7

penalty phase burden of proof, fails to require that the jury base any death sentence on written

8

findings regarding aggravating factors, and fails to designate which factors are mitigating and

9

which are aggravating. Claim BB challenges the adequacy of the California Supreme Court’s

10

United States District Court
Northern District of California

11

review of capital cases.
Evidence developed in the Ashmus litigation is relevant to petitioner’s claims. In Ashmus,

12

an evidentiary hearing was held before Judge Thelton E. Henderson in 2010. Similarly to

13

petitioner, Ashmus alleged that California’s statute fails to adequately narrow the category of

14

offenders eligible to be sentenced to death. At his evidentiary hearing, Ashmus presented

15

testimony and studies from a variety of experts, including Donald Heller, Gerald Uelmen, Steven

16

F. Schatz, David C. Baldus and George Woodworth. Following the hearing, in light of Cullen v.

17

Pinholster, 563 U.S. 170 (2011), Ashmus’ federal proceedings were stayed so that he could

18

present the evidence presented at his federal evidentiary hearing in state court. Under Pinholster,

19

federal habeas review under 28 U.S.C. ' 2254(d)(1) is limited to the record that was before the

20

state court that adjudicated the claim on the merits. Id. at 181.

21

Ashmus raised his narrowing claim in San Mateo County Superior Court in a successive

22

petition and was awaiting a ruling when he died in 2020. Upon motion by Ashmus’ counsel, the

23

state court adjudicated Ashmus’ claim under a public interest exception to mootness. Ashmus, C-

24

93-0594, ECF Dkt. 254, Ex. A at 8. The state court proceeded to reject Ashmus’ narrowing claim

25

on successiveness grounds because Ashmus had already raised it in a prior petition, but granted a

26

certificate of appealability in relation to it on the grounds that petitioner had shown substantial

27

grounds for relief. Id. at 17. The California Court of Appeals dismissed Ashmus’ claim on

28

mootness grounds due to his death. Id., Ex. B.
2

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 3 of 6

1

Petitioner asserts that the empirical evidence developed in the Ashmus litigation casts his

2

claims in a whole new light and provides strong evidence that California’s death penalty scheme

3

fails to narrow the class of offenders eligible for the death penalty. He seeks a stay of his federal

4

proceedings to present the Ashmus evidence in support of his claims in state court.

5
6
7

Petitioner has also filed supplemental briefing on claims N and X. Respondent requests
that should petitioner’s motion for a stay be granted, the entirety of the matter be stayed in order to
avoid additional briefing that might become obsolete as a result of the stay.
DISCUSSION

8
9
10

United States District Court
Northern District of California

11

A federal court may not grant habeas relief until a petitioner has exhausted
available state remedies with respect to each claim. 28 U.S.C. § 2254(b); Picard v. Connor, 404
U.S. 270, 272 (1971). A federal constitutional claim is exhausted when it has been “fairly
presented” to the highest state court and that court has had a meaningful opportunity to apply

12
controlling legal principles to the facts underlying the claim. Picard, 404 U.S. at 276-77. The
13
14
15
16
17

Supreme Court follows a rule of “total exhaustion,” requiring that all claims in a habeas petition
be exhausted before a federal court may grant the petition. Rose v. Lundy, 455 U.S. 509, 522
(1982). A district court is permitted, however, to stay a mixed petition containing both exhausted
and unexhausted claims so that the petitioner may exhaust his claims in state court. Rhines v.
Weber, 544 U.S. 269, 273-75 (2005). A district court must stay a mixed petition if: (1) the

18

petitioner has good cause for his failure to exhaust his claims, (2) the unexhausted claims are

19

potentially meritorious, and (3) there is no indication that the petitioner intentionally engaged in

20

dilatory tactics. Id. at 278.

21

A. Good Cause

22

The Supreme Court has not precisely defined what constitutes “good cause” for a

23

Rhines stay. See Blake v. Baker, 745 F.3d 977, 980-81 (9th Cir. 2014). The Ninth Circuit Court of

24

Appeals has found that good cause does not require “extraordinary circumstances.” Jackson v.

25

Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). Rather, “good cause turns on whether the petitioner

26

can set forth a reasonable excuse, supported by sufficient evidence, to justify” the failure to

27

exhaust. Blake, 745 F.3d at 982. In other words, “[t]he good cause element is the equitable

28

component of the Rhines test.” Id.
3

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 4 of 6

1

Petitioner asserts that he has demonstrated good cause for failure to exhaust because his

2

claims are supported by new evidence developed in the Ashmus case. He asserts that exhausting

3

these claims earlier would have resulted in duplicative litigation. As noted above, Judge

4

Henderson deferred ruling on petitioner’s claims pending the resolution of similar claims in

5

Ashmus’ case in state court. Ashmus, C-93-0594, ECF Dkt. No. 236. Because the outcome of the

6

Ashmus litigation would dictate the outcome of petitioner’s claims, the expenditure of resources to

7
8
9
10

exhaust petitioner’s claims in state court prior to the conclusion of the Ashmus proceedings would
have made little sense. Accordingly, petitioner has demonstrated good cause for failure to exhaust
his claims.
B. Potential Merit
Under the second prong of the Rhines test, it would be an abuse of discretion to stay

United States District Court
Northern District of California

11
12
13
14
15

federal habeas corpus proceedings pending exhaustion of a “plainly meritless” claim. Rhines, 544
U.S. at 277. “This rule has been interpreted to mean that a stay is appropriate as long as at least
one claim is not plainly meritless.” Davis v. Davis, Civ. No. 3:13-cv-0408-EMC, 2015 WL
4512309, at *4 (N.D. Cal. July 24, 2015) (citing Petrosky v. Palmer, No. 3-10-cv-0361, 2013 WL
5278736, at *5 (D. Nev. Sept. 16, 2013)). See also Dixon v. Baker, 847 F.3d 714, 722 (9th Cir.

16

2017) (“A federal habeas petitioner must establish that at least one of his unexhausted claims is

17

not ‘plainly meritless’ in order to obtain a stay under Rhines”). The standard for judging whether

18

a claim is “plainly meritless” for Rhines purposes is lenient. “In determining whether a claim is

19

‘plainly meritless,’ principles of comity and federalism demand that the federal court refrain from

20

ruling on the merits of the claim unless ‘it is perfectly clear that the petitioner has no hope of

21

prevailing.’” Dixon, 847 F.3d at 722 (quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.

22

2005)). In other words, a federal court may forego a Rhines stay and proceed to deny an

23

unexhausted claim on the merits “only when it is perfectly clear that the applicant does not raise

24

even a colorable federal claim.” Cassett, 406 F.3d at 623-24 (emphasis added). A claim is

25

“colorable” when the petitioner has “alleged specific facts that, if true, would entitle him to relief.”

26

Tilcock v. Budge, 538 F.3d 1138, 1145-46 (9th Cir. 2008).

27
28

Here, petitioner’s claims challenging the constitutionality of California’s death penalty
statute are not plainly meritless. When Ashmus’ federal proceedings were stayed, his claims,
4

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 5 of 6

1

which mirror petitioner’s claims, were deemed “potentially meritorious.” Ashmus, C-93-0594,

2

ECF Dkt. No. 516. Indeed, upon his return to state court, Ashmus obtained a certificate of

3

appealability on his narrowing claim. The state court recognized that Ashmus had demonstrated a

4

substantial claim for relief and that “reasonable minds might differ” whether his empirical

5

evidence renders the statute unconstitutional. ECF Dkt. No. 254, Ex. A at 16. At least claim M,

6

petitioner’s narrowing claim, is not plainly meritless. As noted above, one potentially meritorious

7

claim suffices for a stay. Dixon, 847 F.3d at 722.

United States District Court
Northern District of California

8

Respondent contends that returning to state court will be futile because petitioner has

9

raised his narrowing claim in prior state habeas petitions and the state court will therefore deny his

10

petition as successive under Cal. Penal Code § 1509(d). Petitioner counters that that his narrowing

11

claim, if successful, would make him ineligible for the death penalty, overcoming the state bar to

12

successive petitions. At this stage, respondent’s assertion that the state court will deny petitioner’s

13

petition remains speculative. The exhaustion requirement will not be excused on the basis of

14

speculated futility. See Stanley v. Ayers, C-07-4727 (N.D. Cal. 2018), ECF Dkt. No. 295; Taylor

15

v. King, 2012 WL 7145708 (C.D. Cal. 2012).

16

3. Dilatory

17

Under the third prong of the Rhines test, “it likely would be an abuse of discretion for a

18

district court to deny a stay and to dismiss a mixed petition if . . . there is no indication that the

19

petitioner engaged in intentionally dilatory litigation tactics.” Rhines, 544 U.S. at 278. Petitioner

20

has not been dilatory. The parties have regularly conferred and proposed scheduling orders

21

relating to the ongoing litigation in Ashmus in both federal and state court. See, e.g., Dkt. No. 252.

22

Pursuant to the Court’s order, within 42 days of the final adjudication of the proceedings in In re

23
24
25
26
27

Troy Ashmus, No. SC015661A, the parties submitted a joint case management statement regarding
petitioner’s remaining claims. Id. I discern no basis to conclude that petitioner has engaged in
dilatory litigation tactics.
CONCLUSION
For the above-mentioned reason, petitioner’s motion is for a stay is GRANTED.
Petitioner’s proceedings, including the adjudication of claims N and X, are stayed pending the

28
5

Case 3:95-cv-00305-WHO Document 261 Filed 12/07/22 Page 6 of 6

1

completion of petitioner’s exhaustion proceedings. The hearing set for December 14, 2022, is

2

VACATED.

3

Petitioner is directed to file his state exhaustion petition within sixty days of the date of

4

this Order. One hundred and twenty days after the entry of this Order, and every ninety days

5

thereafter until his state proceedings are terminated, petitioner shall file a brief report updating the

6

court on the status of his state habeas action. No later than thirty days after proceedings in his

7
8
9

state case are completed, petitioner shall serve and file notice that proceedings are completed.
IT IS SO ORDERED.
Dated: December 7, 2022

10

United States District Court
Northern District of California

11

William H. Orrick
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6